This writ petition was filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, through which the following prayer has been solicited.
"Therefore, it is humbly prayed that writ petition may kindly be accepted and respondents may please be directed to refer and recommend the case of petitioner for promotion in Grade-20 from 11.11.2005 and further more issue directions to the respondents to manage and give all the benefits, salary etc. to the petitioner after issuance of orders of promotion from the said date. Any other or further relief permissible may also be granted to the petitioner."
2. It was stated in the writ petition that the petitioner was serving in Health Department as Project Director Paramedical Institute Mirpur in Grade B-19. The petitioner was transferred as Executive Director Abbas Institute of Medical Sciences Muzaffarabad against the post previously held by Dr. Muhammad Rafique Chaudhary Executive Director in Grade B-20 , vide order dated 24.10.2005. The petitioner left charge of Project Director Paramedical Institute Mirpur and went to join the new place of posting on 26.10.2005, but came to know that Dr. Bashir-ur-Rehman Kanth was appointed as Executive Director Abbas Institute of Medical Sciences Muzaffarabad. Therefore, the petitioner reported in the office of Director General Health Muzaffarabad on 26.10.2005. Thereafter, the petitioner was deputed as Director Health C.D.C. on 10.11.2005. Meanwhile, Dr. Muhammad Rafique Chaudhary was posted as OSD.
3. According to the list of seniority, Dr. Malik Muhammad Ishaq was senior to the petitioner who was promoted in next grade. Dr. Muhammad Qurban and Dr. Muhammad Rafique Chaudhary were promoted before Dr. Muhammad Ishaq because the said doctor was not qualified for promotion at that time. At the time of posting of the petitioner as Director Health C.D.C. Muzaffarabad, two posts of Grade B-20 were lying vacant. The post of which the petitioner was working and the post of DG Health which became vacant after the retirement of DG Health on 21.06.2006.
4. It was further stated in the petition that there were 04 posts of Grade B-20 in Administration Cadre of the Health Department which are as under:--
(i) Director General Health
(ii) Director Administration
(iii) Director CDC
(iv) Executive Director Ghulam Abbas Institute of Medical Sciences Muzaffarabad.
The petitioner who was performing his duties as Director Health C.D.C. on current charge basis was eligible to be promoted in Grade B20 and his case of promotion was to be referred to the Services Department. The petitioner got retired on completion of age of superannuation on 5.1.2007. The petitioner was eligible and entitled to be promoted in Grade B-20 but he was not promoted, even his case was not referred for promotion in Grade B-20 due to negligent and inefficient attitude of the respondents. The petitioner demanded repeatedly to the respondents for his promotion but all in vain and he was retired ultimately. The petitioner was deprived of his right of promotion, which was guaranteed by the constitution.
5. Notices were issued to the respondents to file parawise comments but they neither appeared nor submitted parawise comments. The writ petition was admitted for regular hearing and the respondents were ordered to submit written statement but the respondents neither appeared nor submitted written statement as well. Ultimately, ex-parte proceedings were ordered against the respondents.
6. Mr. Muhammad Riaz Alam Advocate, the learned counsel for the petitioner advanced his arguments and repeated the version of the petitioner as taken in the petition and referred an unreported case decided by the apex Court of AJ&K titled as "Azad Govt. & others Vs. Dr. Abdul Wadood Rizvi & another" decided on 07.03.2000 in support of his arguments.
7. Mr. Muzaffar Ali Zafar the learned Additional Advocate General for the respondents requested to dispose of the matter after perusing the record and the relevant law.
8. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record minutely. The petitioner took this version that he was posted as Director Health CDC on 10.11.2005 being next senior officer of the department. Dr. Muhammad Rafique Chaudhary who was senior to the petitioner was posted as Officer on Special Duty (OSD) and the petitioner was posted on the said post on acting charge basis. The petitioner joined his duties in Grade B20 as Director Health Services C.D.C. on 11.11.2005. The petitioner also took this version that he was not recommended for promotion by the Services Department despite Secretary Health initiated the same through a letter in the name of Secretary Services Azad Govt. of Jammu and Kashmir dated 27.05.2006 to promote the petitioner in Grade B-20 on the post of Director Health Services C.D.C.
The respondents neither appeared before the Court nor submitted written statement. Meaning thereby that the respondents have admitted the version of the petitioner. It is an admitted principle of law that allegation of fact if not denies specifically or by necessary implication in written statement, that fact shall be taken to be admitted by the other party. The record reveals that the petitioner was placed next senior to Dr. Muhammad Rafique Chaudhary in the seniority list who was posted as OSD and the petitioner was posted in his place in Grade B-20 on 10.11.2005 and the petitioner joined the said post on 11.11.2005.
9. Thereafter Secretary Health Services forwarded the case of promotion of the petitioner to Secretary Services vide his letter 27.05.2006 but the same was not referred to the Selection Board for the purpose of promotion. Even the matter was not referred to the Govt. for approval of promotion of the petitioner on officiating basis. Thereafter the petitioner got retired from his service.
It is pertinent to reproduce sub-clause (5) and (6) of Section 06 of Civil Servants Act as under:-- "6(5) A civil servant who, during the period of his service was eligible for confirmation in any service or against any post retires from service before confirmation shall not, merely by reason of such retirement, be refused confirmation in such service or against such post or any benefits accruing therefrom.
6(6) Confirmation of a civil servant in a service or against a post shall take effect from the date of the occurrence of a permanent vacancy in such service or against such post or from the date of continuous officiating, in such service or against such post, whichever is later."
The above-mentioned provision of law has been elaborated by the apex Court of AJ&K in a case titled as "Azad Gout. & others Vs. Dr. Abdul Wadood Rizvi & another" (Civil Appeal No, 133/99) decided on 07.03.2000. It has been held in the said precedent that a civil servant who during the period of service was eligible for confirmation in any service or against any post retires from service would not deprive him of such confirmation. Although the petitioner was retired from his service later on but he was eligible to be promoted in Grade B-20 from 11.11.2005 when he took over the charge of Director Health Services C.D.C. Muzaffarabad. The record reveals clearly that the petitioner was posted on the vacancy of Grade B-20 which fell vacant as a result of transfer of Dr. Muhammad Rafique Chaudhary who was posted as OSD because the vacancy was lying vacant. If no vacancy was existed, how the matter of promotion of the petitioner was sent to the Secretary Services for approval? The petitioner was deprived of valuable right of promotion and all the benefits by the negligent and careless acts of the respondents.
In the light of what has been stated above, the instant writ petition is accepted and the respondents are hereby directed to refer and recommend the case of the petitioner for promotion in Grade B-20 from 11.11.2005 with all the benefits, salary etc. The respondents are also directed to issue order of promotion of the petitioner from the said date. No order as to costs.