MUHAMMAD YAR WALLANA, MEMBER --- Precise facts as gleaned out from the memorandum of appeal are that appellant Muhammad Boota while working as SST (BS-16), Government Islamia High School, Sialkot was promoted to the post of Headmaster (BS-17) vide order bearing No, 9071/Admin (Male)-1, dated 01.07.2011 and was posted as Headmaster at Government High School Pind Swika, Jhelum. However., instead of joining his duties at new place of posting, the appellant sent a letter bearing No, 179/SHM, dated 11.07.2011 to Director Public Instruction, Punjab, Lahore particularly seeking posting as Headmaster at Govt. High School Badokel Chamba, Tehsil Daska, District Sialkot on the ground that he is going to be retired from service on attaining age of superannuation on 09.01.2013 and thereafter filed writ petition No, 27230/2013 before Hon'ble Lahore High Court, Lahore, which was disposed of vide order dated 25.10.2013 with the direction to respondent No, 1 to decide the pending representation of the appellant and as a result thereof the same was decided vide impugned order dated 27.11.2013, whereby, claim of the appellant was turned down as he failed to actualize his promotion by joining his new place of posting and meanwhile he stood retired from service. Aggrieved by said order, the appellant preferred the instant appeal on 30.01.2014.
2. Learned counsel for the appellant submits that as per government policy the civil servant should be posted/adjusted near to his home during the period of his last 62 years of service so that he can be able to get prepared his pension papers and other documents required for pensioner benefits, whereas the promotion/posting order dated 01.07.2011 was passed just one and half year before appellant's retirement, which had to take place on 09.01.2013 and in this scenario it was obligatory for the respondents not to post him at far flung area (in the present case Govt. High School Pind Swika District Jhelum); that despite making a representation in this regard the competent. authority did not consider the legitimate request of the appellant, which resulted into invoking jurisdiction of the Hon'ble Lahore High Court, Lahore. Learned counsel for the appellant relied upon case-law reported as 1999 PLC (C.S) 1320, 2011 SCMR 01, PLD 1981 SC 612, 1996 SCMR 413, 2004 SCMR 403, PLD 1991 SC 973, 2008 SCMR 1138, 2009 SCMR 405, PLJ 2010 SC 554 and 2012 SCMR 126 and maintained that due to inaction of the public functionaries the civil servant should not suffer financial loss and that a civil servant going to be retired within two years is entitled to be posted near his home town. On these pleaded grounds learned counsel for the appellant seeks direction to the respondents to allow the appellant to join his duty as Headmaster (BS-17) in the light of his promotion order dated 01.07.2011 with all back benefits.
3. Conversely, learned District Attorney negated the contentions raised by learned counsel for the appellant and submits that neither any rule nor any policy made thereunder give a right to a civil servant to claim particular place of posting; that the appellant failed to actualize his promotion by joining new place of posting, which is tantamount to forgo right of promotion and for that reason he stood retired from service as SST (BS-16).
4. Arguments heard. Record perused.
5. I have gone through the case-laws relied upon by the learned counsel for the appellant and have examined the record. The facts of the case titled Federation of Pakistan and others. v. Amir Zaman Shinwari, Superintending Engineer 2008 SCMR 1138 are. distinguishable from the facts of the present case as in the said case the civil servant during his service had assailed order of deferment of his case for promotion and the Federal Service Tribunal had passed order with mutual consent of the parties for reconsideration of his case by CSB-Il for promotion in accordance with law and that his promotion would take effect when his junior had been promoted to the post of Chief Engineer inasmuch as the present appellant had been promoted after due consideration of his case by the competent authority and on the same date he had moved a representation for his posting at a particular place, which remained pending till his retirement on 09.01.2013 and thereafter he agitated the matter in writ petition No, 27230-13 filed before Honble Lahore High Court, Lahore, wherein the respondent No, 1 had been directed to decide representation of the present appellant. This clearly shows that the appellant was bent upon seeking his posting at a particular place after his promotion on the ground as argued by his counsel that he had to retire within next two years and in accordance with the transfer policy adopted by the Government of the Punjab through letter Notification No, SO(COORD)1-13/79, dated 16.03.1980 he had the right for such posting which is not a tenable plea as first a civil servant cannot claim his posting at a particular post as a matter of right and second the transfer policy does provide guidelines and principles to be applied in case of transfer and posting and it has no unqualified effect as the relevant part of the policy reads as under: "Officers will normally be posted to or near their home town within 2 years of their retirement."
The words employed in this clause lay down that normally the officers retiring within two years would be posted to or near their homes but it is not an unqualified and an inflexible rule. The appellant could have sought appropriate remedy for posting but instead of making- representation to the higher authority i,e, respondent No, 1 he sought his posting at a particular school by addressing a letter to the respondent No, 1 on the very day of his promotion and posting order.
6. No civil servant can seek posting at a particular station and against a particular post as a matter of right. In this respect I am enlightened by the wisdom of Hon'ble apex Court in case reported as Zaka Ullah Bajwa v. Chief Secretary, Govt. of the Punjab and others 2005 PSC 1250.
7. The appellant also failed to agitate this matter before this Tribunal well within time after the respondent No, 1 had not forwarded his representation to the higher authorities but the appellant remained silent and went in deep slumber for about two years time and thereafter filed writ petition No, 27230-13 before Hon'ble Lahore High Court, Lahore seeking directions to the respondent No, 1 for decision of his representation. After turning down of the said representation vide order dated 27.11.2013 passed by respondent No, 1 he had sought for remedy of grant of promotion with retrospective effect and grant of benefits thereunder and also to join his duty as Headmaster in BS-17 despite the fact that he was not civil servant at the time of filing of this service appeal as he stood retired from service on 09.01.2013. After amendment in the Punjab Civil Servants Act, 1974 no civil servant can be granted promotion with retrospective effect. The Hon'ble apex Court has very well considered such an issue in a reported case titled Ch. Faqir Muhammad v. Secretary to Government of Punjab, Agriculture Department, Punjab, Lahore and others 2009 SCMR 405 and the relevant extract from the wisdom of the Hon'ble apex Court is reproduced hereunder for the facility of reference:-- "---S. 8(3) & (5)---Constitution of Pakistan (1973), Art. 212(3)---Promotion with retrospective effect---Scope-- -Vacancies in question fell vacant in year. 2004 and due to departmental inquiries pending against civil servant and adverse remarks and punishments in his service record he was riot considered for such vacancies---Validity--:In year, 2005 amendment was made in S. 8 of Punjab Civil Servants Act, 1974, and no promotion or pro forma promotion could be granted in year 2007, when the civil servant had already retired from service--Effect--If plea of civil servant was admitted that right of promotion had accrued to him in year, 2004, it would tantamount to hold that amendment in S. 8 of Punjab Civil Servants Act, 1974, was altogether ineffective and promotions, despite such amendments, could be granted in retrospect and such was not the intention of positive, specific and clear legislation---Supreme Court declined to interfere with the judgment passed by Service Tribunal whereby appeal filed by civil servant was dismissed--- Leave to appeal was refused "
8. Besides the foregoing reasons it is also worth mentioning that in the promotion order dated 30.06.2011, it had been very much mentioned that the promotee officers would have to join next place of posting within 15 days and failing which it shall be deemed to have been forgone by the promotee. officer and the effect of forgoing of promotion entails supersession as clarified in the Regulation. Wing, S&GAD's instructions bearing No, SOR-II(S&GAD)2- 132/2002, dated 03.02.2003 read with letter No, SOR-11(S&GAD)2-167/20.10, dated 12.11.2010. Admittedly, the appellant failed to join duties at new station within the stipulated period to actualize his promotion.
9. I have also gone through the case-law relied upon by the learned counsel for the appellant. The case-law relied upon by the learned counsel for the appellant reported as 1999 PLC (C.S) 1320, 2011 SCMR 01, PLD 1981 SC 612, 1990 SCMR 413, 2004 SCMR 403, PLD 1991 SC 973 and PLJ 2010 SC 554 is, with due respect. inapplicable on the facts as well as the law point involved in this service appeal and these have been Misplaced by the learned counsel for the appellant.
10.For the reasons recorded above this service appeal fails which is accordingly dismissed.