TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of the captioned petitions seeking leave to appeal against the consolidated judgment dated 2-12-2010 passed by the learned Punjab Service Tribunal, Lahore vide which the appeals of the respondents were allowed and it was directed as follows:-- "The competent authority is directed to immediately prepare working paper of all the appellants and the same be placed before the Provincial Selection Board for grant of BS-18 to the appellants (in Appeals Nos. 1080, 2357, 2471, 2472, 1864 and 1865 of the year 2010) and BS-19 to all the remaining appellants from the due date notwithstanding their retirement. If they are otherwise found entitled thereto. However, it would be made clear that the authority shall scrutinize the case of all the appellants and ensure that they are only granted those scales from the due date if they have not already availed of the same. The competent authority shall complete this exercise within a period of four months from the receipt of this order with compliance report to the Registrar of this Tribunal."
2. Learned Additional Advocate-General, Punjab seeks leave to appeal against the impugned judgment primarily on two grounds, first, that the case of the respondents was distinguishable from those who were granted relief in the case reported as Dr. Muhammad Amjad and another v. Dr. Israr Ahmed and others (2010 SCM R 1466) as the respondents in the instant petitions never represented to the competent authority when they were denied the promotion. Second, the respondents were not entitled at the relevant time to be granted promotion for one reason or the other and without going into the said exercise the learned Tribunal could not have granted them the relief in question. Elaborating his submissions learned Law Officer referred to amended subsection (5) of section 8 of the Punjab Civil Servants Act, 1974 to contend that the respondents could have been granted the pro forma promotion if they were entitled and they could not have been granted promotion as they stood retired.
3. Learned counsel for the respondents who was on watching brief, defended the impugned judgment by submitting that the impugned judgment is unexceptionable; that the respondents were entitled to be granted promotion when it was due and that none of the respondents would claim promotion if they were not otherwise entitled under the rules.
4. Facts giving rise to the instant petitions briefly stated are that the respondents were serving in private educational institutions in the Punjab when MLR 118 was issued in terms of which privately managed schools were nationalized and taken over by the Government with effect from 1-10-1972.
Subsequently Teaching Posts Rules, 1974, were promulgated by the Government of Punjab vide notification dated 26-9-1974. A dispute arose qua the inter se seniority of Headmasters serving in Government Educational Institutions and the one's in the privately managed schools and issue came up for consideration before this Court in Civil Appeals Nos. 1 to 15 of 1981 wherein it was held that "teachers of taken over educational institutions who made the requisite condition of sub-rules shall be place at par with the teachers of government maintained institutions." As a consequence of the said judgment, the Government framed the policy known "On equal charge basis" and most of the teachers belonging to nationalized cadre were promoted to BPS-18 and their promotions to BPS-18 were antedated by the competent authority. The case of the respondents was that they were also entitled to antedated promotion in BPS-18/19. The matter was processed at the departmental level, a working paper was prepared but before the competent authority could pass an order, they were retired and ultimately their representation for antedated promotion was turned down by the Secretary Government of Punjab, Education Department vide the order dated 23-10- 2008. The learned Service Tribunal allowed respondents appeals and directed the competent authority to process their cases for promotion if they were otherwise entitled at the relevant time as it was of the view that subsection (5) of section 8 of the Punjab Civil Servants Act, 1974, had no retrospective effect; that even otherwise the amended provision acknowledges the right of civil servants for promotion from earlier date by way of pro forma promotion (subsection (4) of section 8 of the Punjab Civil Servants Act) and that several employees similarly placed were allowed relief and denial of the same to respondents would be violative of Article 25 of the Constitution.
5. Much stress has been laid by learned Law Officer on subsection (5) of section 8 of the Punjab Civil Servants (Amendment) Act, 2005, a reference to which at this stage would be order. It reads as follows:-- "1. Short title and commencement.---(1) This Act may be called the Punjab Civil Servants (Amendment) Act, 2005.
(2) It shall come into force at once.
2. Amendment in section 2 of Act VIII of 1974.---In the said Act, in section 2, after clause (g), the following new clauses (g-a) and (g-b) shall respectively be added:- "(g-a) "pro forma promotion" means promotion of a civil servant from the date of promotion of his junior, as may be prescribed.
(g-b) "promotion" means appointment of a civil servant to a higher post in the service or cadre to which he belongs."
3. Amendment in section 8 of Act VIII of 1974.---In the said Act, section 8 shall be substituted by the following:-- "8. Promotion.---(1) A civil servant shall be eligible to be considered for appointment by promotion to a post reserved for promotion in the service or cadre to which he belongs in a manner as may be prescribed; provided that he possesses the prescribed qualifications.
(2) Promotion including pro forma promotion shall not be claimed by any civil servant as of right.
(3) Promotion shall be granted with immediate effect and be actualized from the date of assumption of charge of the higher post, and shall in no case be granted from the date of availability of post reserved for promotion.
(4) A civil servant shall not be entitled to promotion from an earlier date except in the case of pro forma promotion.
(5) A retired civil servant shall not be eligible for grant of promotion or pro forma promotion.
(6) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as follows;
(a) in the case of a selection post, on the basis of selection on merit; and
(b) in the case of non-selection post, on the basis of seniority-cumfitness."
6. A perusal of the afore-referred amended provision would indicate that it was not retrospective in effect as it was specifically stipulated that "it shall come into force at once". The question of its retrospectively or otherwise was a moot point before this Court in Muhammad Amjad v. Israr Ahmed (2010 SCM R 1466) and this Court candidly held that the amended provision could not be given retrospective effect. That being so, the argument of learned Law Officer with reference to subsection (5) of section 8 referred to in the preceding paragraph would be of no avail to him.
Coming to the facts of this, we find that it has not been disputed before this Court that much before the retirement of the respondents, a working paper was prepared by the department with regard to their promotion but the matter was delayed without any justifiable reason and in the meanwhile respondents attained the age of superannuation. They cannot be made to suffer on account of the departmental lapse. The argument of learned Law Officer that the respondents were not entitled at the relevant time to be granted promotion for one reason or the other is rather misconceived as the operative part of the impugned judgment has candidly directed that the working paper of the respondents shall be prepared and they will be considered for grant of next grade notwithstanding their retirement, if they are even otherwise found entitled thereto. This in fact would now be pro forma promotion.
7. For what has been discussed above, we do not find any merit in these petitions, which are dismissed and .