JUSTICE (R) MOHAMMAD JAHANGIR ARSHAD, CHAIRMAN - This appeal has been filed with the following prayer:- "It is respectfully prayed that all the record of the case alongwith the connected case mentioned may graciously be summoned and examined. The impugned order dated 7.5.2009 be graciously declared malicious, mala fide, arbitrary based on colourful exercise of jurisdiction for extraneous consideration without lawful authority and of no legal effect on the rights of appellant and be set aside with costs.It is further prayed that appropriate direction be kindly issued to respondents for granting of proformapromotion to BS-19 w.e.f. 13.2.2006, the date my junior Mr. Malik Habib-ur- Rehman respondent No. 4 was so promoted with all consequential monetary benefits.
Since the appellant also perform the duties of District Population Welfare Officer BS-19 w.e.f.
23.2.2006 to 12.11.2007 till the date of his regular promotion and thus is entitled to the pay of higher post for the period he performed the duties of higher post BS-19 w.e.f.
23.2.2009 to 12.11.2007 as per case-law 1986 SCM R 991."
2. Report and parawise comments were called for which were filed.
3. The facts in brief are that one Malik Habib-ur- Rehman/private respondent No. 4 despite junior to the appellant was granted promotion from BS-18 to BS-19 on 13.2.2006 whereas case of appellant though tagged with the case of Malik Habib-ur-Rehman was kept pending/undecided and resultantly the appellant retired on 19.11.2007. On his retirement the appellant moved to the competent authority for grant of proforma promotion on the ground that as due to some administrative technicalities the case of appellant for promotion from BS-18 to BS-19 remained under process and could not be finalized, therefore, he was entitled to proforma promotion in view of Proforma Promotion Policy, 2003 but the competent authority turned down his request vide order dated 7.5.2009 holding that appellant having retired on 19.11.2007 and made representation for proforma promotion on 10.12.2007 i.e. After his retirement. Hence this appeal.
4. At the first hearing of this case dispute was raised as to when appellant moved application for proforma promotion because application attached with the record showed that the same was moved on 10.11.2007 whereas according to record the same was received in the office on 13.12.2007.
In order to determine this controversy original record was summoned and examined in the presence of learned Counsel for the appellant as well as learned Deputy District Attorney. The original application though bears the date as 10.11.2007, however, the same was received and diarized in the office on 13.12.2007 i.e.. After the date of retirement i.e. 19.11.2007, however, in view of the proposed order being made this controversy becomes irrelevant.
5. The original record produced by the departmental representative indicates that the case of appellant alongwith Malik Habib-ur-Rehman for promotion in BS-19 on regular basis was submitted to the Chief Minister who approved recommendation of Provincial Selection Board-1 on 13.2.2006 with the following decision:- "Cleared for promotion to the post of Director/District Population Welfare Officer BS-19 on regular basis in his cadre without prejudice to the rights of his seniors."
6. This order was communicated to the Secretary to Government of Punjab, Population Welfare Department by Mr. Ahmed Raza Sarwar, Deputy Secretary (Confidential), Government of Punjab, S&GA Department vide Memo. No. SO (C-l)2-6(2003) issued on 13.2.2006. The memo, further points out that Malik Habib-ur-Rehman shall retire from government service on 13.2.2006 on attaining the age of superannuation as his date of birth was 14.2.1946. According to learned Counsel as the superannuation of said Malik Habib-ur-Rehman was due on 13.2.2006, therefore in order to avoid delay in competing other connected cases including appellant no order was passed on the connected cases which was kept pending, therefore there was no fault on the part of appellant if the matter was not decided prior to his retirement and the matter was kept pending by the public functionary till the appellant was retired and it is established principle of law that no person to suffer for an act of public functionary. It is further pointed out by learned Counsel for the appellant that Proforma Promotion Policy of 2003 was very much clear which provides:- "Where a senior officer/official was deferred for promotion due to no fault of his own and his junior was promoted and subsequently the senior was also promoted during his service, but could not get proforma promotion during service and retired.
It is clarified that under Rule 9(2) of the Punjab Civil Servatns (Appointment and Conditions of Service) Rules, 1974, promotion/proforma promotion cannot be claimed as of right by any civil servant. Similarly under the provisions of the Punjab Civil Servants Act/Punjab Civjl Servants (Appointment and Conditions of Service) Rules, 1974 only a civil servant can be appointed on promotion. Since a retired civil servant is no longer in service, therefore, he ceases to be a civil servant. Since promotion can be granted only to a civil servant, a retired officer/official cannot avail the benefit of promotion/proforma promotion.However, keeping in view the hardship caused to the retired civil servant, it has been decided that in case where a civil servant was wrongfully prevented from promotion (para III (a) refers) and was subsequently promoted during his service, but could not get proforma promotion during his service and retired, such officer may be considered for proforma promotion, provided he files representation to his effect during his service.
The representation filed after retirement shall not be considered."
7. The learned Counsel for the appellant therefore argues that in the light of above-noted Proforma Promotion Policy, 2003 the appellant had legitimate expectancy and entitlement for his proforma promotion from the date Malik Habib-ur-Rehman was promoted and the authorities below were not correct in holding that after retirement of appellant he could not claim proforma promotion whereas even the amended provisions of Section 8(5) of the Punjab Civil Servants Act as amended on 15.4.2005 permits grant of proforma promotion to a retired civil servant. In the opinion of learned Counsel for the. Appellant the appellant was wrongly refused his entitlement for proforma promotion from the date his junior Malik Habib- ur-Rehman was allowed though on emergency basis but without deciding the case of appellant and keeping the same pending under-circulation due to no fault of the-appellant.
8. On the other hand, this appeal has been opposed by the learned Deputy District Attorney as well as departmental representative by pressing that as the appellant stood retired on 19.11.2007, therefore his subsequent application was not competent and his prayer was rightly refused.
9. Arguments considered, record perused.
10. There is no denying of the fact that appellant was promoted in BS-19 on regular basis with immediate effect vide order dated 12.11.2007 whereas he admittedly retired on 19.11.2007. It is also not denied that the case of appellant for promotion in BS-19 alongwith Malik Habib-ur- Rehman remained in circulation and undecided despite the above-noted decision of Chief Minister dated 11.2.2006 passed in the case of Malik Habib-ur-Rehman granting him promotion in BS-19 on regular basis without prejudice to the right of senior. There is also not denying of the fact that in the seniority list available at page 288 of original file appellant Muhammad Ashraf Raja was shown at Sr. No. 5 as against Habib-ur-Rehman shown at Sr. No. 13. Per said seniority list appellant joined government service on 14.3.1967 whereas Habib-ur-Rehman joined on 18.11.1968. Further appellant was promoted in BS-18 on 29.5.2001 alongwith Habib-ur-Rehman who was also promoted on the said date. The original record is silent as to why the case of appellant was kept pending unnecessarily whereas Habib- ur-Rehman was granted promotion to BS-19 w.e.f, 13.2.2006. The only reason appears to be perhaps that he had to retire on said date on attaining the age of superannuation. As if the decision of granting promotion to Habib-ur-Rehman in BS-19 on the last date of his retirement was highly commendable, the decision to keep the matter of appellant despite his being senior to Malik Habib-ur-Rehman pending till his retirement can equally not be approved with grace rather this appears to be an act of discrimination on the part of competent authority to the extent of appellant. The competent authority would have been justified in refusing the prayer of appellant for grant of promotion in BS- 18 to the appellant on regular basis with immediate effect. If his case earlier was either considered or deferred or turned down but in the absence of no final decision in this respect to deprive the appellant of his legitimate right of promotion in BS-19 when his junior Malik Habib-ur-Rehman was promoted was highly unwarranted, unjustified rather violative of the provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 "guaranteeing equal protection of law to the persons placed in equal facts and circumstances". The authorities below also failed to consider the fact that even the amended provisions of Section 8(5) of the Punjab Civil Servants Act, 1974 says that "A retired civil servant shall not be eligible for grant of promotion provided that he may be considered for grant of proforma promotion as may be prescribed'. Here the word 'prescribed'. Means the relevant rules or policy and since the Proforma Promotion Policy as reproduced above says that despite retirement civil servant can be granted promotion where a civil servant was wrongly prevented from promotion or could not get proforma promotion during his service and retired such officer may be considered for proforma promotion provided he files representation to this effect during his service. In the present case the appellant though in his application dated 10.11.2007 prayed that he may be granted proforma promotion when his junior Malik Habib-ur-Rehman was promoted on 13.2.2006 yet the file does not indicate that his case after retirement of Malik Habib-ur-Rehman was ever finally decided before the retirement, therefore, it would be presumed that this case for proforma promotion was pending at the time of his retirement and thus the cause of action , having already commenced prior to his retirement had to be decided by the authorities even after his retirement.
11. I am therefore satisfied that not only the appellant had legitimate right to be considered for proforma promotion from the date when his junior Habib-ur-Rehman was promoted in BS-19 but he was extended discriminatory treatment by the authorities below and now he could not be deprived of the right/entitlement for proforma promotion on the technical ground of his having retired.
12. The upshot of the above discussion is that this appeal succeeds which is allowed and the competent authority is directed to place the case of appellant before the Provincial Selection Board-I, to be considered for proforma promotion in BS-19 from the date when Malik Habib-ur- Rehman/private respondent No. 4 was promoted keeping in view the above-noted facts and circumstances. As the appellant has retired since 2007, therefore in the interest of justice the competent authority is directed to ensure that the exercise is completed within 60 days of the receipt of this order so that appellant may be able to enjoy the benefits of his proforma promotion during his life-tim.