' UMAR ATA BANDIAL J:--- This judgment shall decide Writ Petitions Nos.3878, 18793, 14708 of 2011 involving common question of law.
2. The petitioners were appointed as Deputy District Officer Agri. (Extension) "DDOA (Ext.)" in BPS-17 on 4-4-2007 on contract for a period of five years. The contract appointment of the petitioners was made against regular posts in the department and not against specially created posts. Shortly, after their appointment, the Provincial Government, on 12-6-2007, notified fresh Punjab Agriculture Department (Extension and Adaptive Research Wing) Service Rules, 2007 ("Service Rules, 2007"). By the enforcement of the said Rules, the previous rules namely, The Punjab Agriculture Department (Extension Wing/Economics and Marketing Wing) Service Rules, 1980 ("Repealed Rules, 1980") were repealed. The change made under the newly enforced Service Rules, 2007 which is relevant for adjudication of the present controversy is that the promotion quota for appointment of DDOA (Ext.) was increased from 50% of vacancies to 90% thereof on seniority-cum-fitness basis and the quota for initial recruitment was correspondingly reduced from 50% to 10% of such vacancies.
3. Learned counsel for the respondents contends that after the promulgation of Service Rules, 2007, the regular seats reserved for initial recruitment under the Repealed Rules, 1980 were abolished and 90% thereof were reallocated for promotion and 10% for initial recruitment under the Service Rules, 2007. On that basis the seats presently remaining available for initial recruitment are 13 in number out of which 10 seats have been filled by the senior most contract appointed DDOAs (Ext) belonging to the category of the petitioner who have been regularized in service. As a result it is prayed that the petitioner contract appointees cannot be regularized against the posts presently occupied by them as the same have been reallocated to the promotion quota.
4. The petitioners on the other hand urge the consideration of their case under the Regularization Policy of the Provincial Government dated 10-11-2010 which has been applied across the board to other contract employees of the Provincial Government. In justification of their claim for regularization, the learned counsel for the petitioners has explained that the petitioners' appointment was made through competitive selection by the PPSC and they satisfied all criteria of eligibility for such posts. The petitioners have thereafter maintained satisfactory service records to deserve regularization under the afore-noted policy. However, the only obstacle in the implementation of their regularization is the aforenoted objection by regular DDOAs(Ext) that the regularization of the petitioners against their present posts would curtail the 90% promotion quota seats reserved for regular DDOAs under the Service Rules, 2007. It is urged that promotion is not a statutory right but is a privilege assured in terms of section 8 of the Punjab Civil Servants Act, 1974.
5. After hearing the learned counsel for the parties, the crucial question for determination is whether as a result of the Regularization Policy announced on 10-11-2010 the seats occupied by the petitioners that were reallocated to the promotion quota under the Service Rules 2007, may be absorbed for the regularization into service of the petitioners. According to the learned counsel for the respondents, the aforesaid question arises not by the retrospective but prospective enforcement of the Service Rules, 2007 for safeguarding the privilege of future promotion that may accrue to the respondents under the Service Rules, 2007.
6. The learned counsel for the petitioners opposes the argument on the basis that the respondents cannot claim present rights on the basis of a prospective expectation of promotion.
7. The argument by the learned counsel for the respondents visualizes a presumptive right to be appointed against the seats presently occupied by the petitioners but falling within the 90% promotion quota under the Service Rules, 2007, as and when successful respondents are promoted to the rank of DDOA(Ext). This assumption treats the promotion quota of 90:10 to create a vested right in the respondents for the corresponding proportion of seats to be kept vacant in advance for the purpose of accommodating successful respondents on a future date as and when they are recommended for promotion by the DPC and so appointed by the competent authority.
8. The argument that even if the promotes are fewer in number than the reserved seats under the promotion quota yet such seats should be kept vacant for future utilization by promotes is flawed.
According to settled law, a civil servant has a vested right to be 'considered for promotion' but has no absolute right 'to be promoted.' Consideration for promotion has subjective and objective elements and therefore seniority alone cannot create certainty of promotion. To the mind of this Court, the presumptive and prospective right of promotion claimed by the respondents is contingent in nature and cannot defeat the petitioners' right to regularization of service which is a present right duly vested in nature after the petitioners have fulfilled all conditions attached thereto. The petitioners cannot be denied their present vested right on the basis of a prospective right claimed by the respondents. Furthermore it is always open to the respondent department to increase the number of posts of DDOA (Ext.) as and when the need arises in order to accommodate deserving promotes. At present there is no ground, therefore, for the petitioners' posts to be kept vacant by removing the petitioners from the same and thereby defeating their present vested right for the sake of accommodating the respondents' future expectation of promotion to such posts.
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