' Dr. Nazir Saeed, Member.--Through this appeal, the Appellant has assailed the appellate impugned order dated 13.05.2016 whereby his request for consideration of promotion from the post of Deputy Chief Admin Officer (BS-18) to the post of Chief Admin Officer (BS-19) was not acceded on the ground that the exemption from mandatory training (i,e, Mid Career Management Course) on the basis of age has been withdrawn vide 0.M dated 15.04.2016. Feeling aggrieved of the said impugned appellate order, the appellant has approached the Tribunal for redressal of his grievance.
2. Concisely, the facts of the case are that the post of Chief Admn Officer (BS-19) became vacant on 28.09.2015 when his senior namely Khalid Masood, Chief Admn Officer (BS-19) had expired.
Thereafter, the appellant was given current charge of the post of Chief Admn Officer till 14.02.2016.
However, on a number of occasions, the appellant had requested to the respondents for consideration of his promotion as Chief Admn Officer on regular basis but they had been lingering on the matter despite the fact that the appellant was about 56 years old and as per policy at that time, the appellant was exempted from training of MCMC. Subsequently, the Respondent No, 1 issued a letter dated 30.12.2015, whereby the said exemption was withdrawn w.e.f 31.07.2016 and followed by another letter dated 15.04.2016, it was further clarified that the said exemption was only applicable to those officers who had superannuated before 31.07.2016, before the finalization of the ensuing training sessions. According to the appellant, it was impossible for him to carry on the said training course. Even otherwise, the promotion to the post of Chief Admn Officer (BS-19) of the appellant did not fall within the ambit of the proposed amendment. However, it was malafidely intimated to the appellant vide appellate impugned order dated 13.05.2016, that his case would be considered for promotion after completion of training of MCMC.
3. The learned counsel for the appellant has assailed the appellate impugned order' inter alia on the ground that the impugned action of the respondents is illegal and unlawful. That the appellant being senior most was eligible and fit for consideration of promotion to the post of Chief Admin Officer (BS-19) as per Promotion Policy of the Government of Pakistan w.e.f 29.09.2015 but he had been deprived of promotion without any lawful justification. The learned counsel further alleged that the denial of proforma promotion to the appellant was not based on any rule, therefore the impugned appellate order was void ab-initio. In support of arguments, the learned counsel placed reliance on the case reported as 2010 SCMR 1466 wherein it was held that the civil servant was eligible to be considered for promotion when substantive vacancy in promotion quota was available. Since the impugned action of the Respondents Not considering him for promotion was not only against the norms of justice but also in violation of the case law referred above.
4. The learned standing counsel for the respondents have opposed the appeal inter-alia on the ground that the appellant was not eligible for promotion being not cleared for undergoing mandatory training course i,e, MCMC. The same is viol4tive of Rule-8 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 whereby no promotion on regular basis shall be made to posts in Basic Pay Scales 17 to 22 and equivalent unless the concerned officer had completed such minimum length of service, attended such training and passed such departmental examination. That the appellant was demanding exemption from mandatory training on account of his ailment whereas no such provision existed in rules whereby promotion could be claimed without having undergone mandatory training course and as such the appellant could not claim that he had fulfilled all conditions for promotion. The case of the appellant would be considered for promotion by the CSB after completing all codal formalites.
5. Both the learned counsel for the parties have addressed their arguments while adhering to the averments of the pleadings reproduced above and we have also gone through the record very carefully.
6. Before parting with the judgment, it is pertinent to mention here that the terms and conditions of service cannot be suddenly changed to the disadvantage of the Civil Servants as per Section 3(2) of Civil Servants Act, 1973. It is also well settled proposition of law that amendment in rules/orders should be applied prospectively. Considering all the facts, material available on record and the arguments of the parties, we are of the firm view that the Rules/Policy cannot operate to the disadvantage/detriment of the terms and conditions of the service of the appellant. As it is a common factor that rules are always made for the betterment and not to the detriment of its employees, as has been done in this case. Reliance is placed on the cases reported as 2004 PLC
(CS) 1464 and 2003 PLC (CS)424. Thus the bona-fides of such delay while making promotions are questionable on the part of the respondents. It is deplorable that the process of promotion to the post of CAO (BS-19) is suffering from enormous delay which is mainly because of lethargic demeanour of the respondents as there was no question on the competence of the appellant for consideration of promotion to BS-19 in the year 2015 on regular basis.
7. It is an admitted fact that the post of Chief Admn Officer (BS-19) became vacant w.e.f 29.09.2015 due to expiry of Mr. Khalid Masood and thereafter the appellant had been given current charge of the post of Chief Admn Officer (BS-19) till 14.02.2016. In the instant case, the appellant being senior most officer was performing his duties against the post of CAO (BS-19). However, one fact is undeniable that the when the vacancy became vacant, the appellant was required to he considered for promotion as per promotion policy existed at that time.
' In this regard, we would like to refer to the letter dated 30.12.2015 w.e.f whereby the exemption of course on the basis of age was withdrawn 31.07.2016 but subsequently the respondents have issued O.M dated 15.04.2016 by clarifying that the policy of exemption of training hourse will be applicable only to the officers who were superannuated before 31.07.2016 and before completion of undergoing training course. It is also alleged that during the pendency of the subject appeal. The respondents had already withdrawn the said O.M dated 15.04.2016 vide order dated 31.05.2016.
Therefore, the initial letter dated 30.12.2015 has now come to in field under which the appellant case was required to be considered. In this case, the only reason for delay is non-convening of the meeting of the DPC as soon as the posts became available. The appellant cannot be made to suffer due to change of promotion policy despite the fact that the respondents had themselves restored the O.M dated 30.12.2015. The version of the respondents that the exemption from mandatory training course is based on the O.M dated 15.04.2016 which appears to be misconceived as the same is no more in the field as per O.M dated 31.05.2016.
8. There can be no cavil with the proposition of law, as also settled down by the decision of the Hon'ble Supreme Court; that when the vacancy is available and the same has been filled by one, on acting charge basis, the said person if senior most, becomes entitled for regularization. Reliance can be placed safely on 2010 SCMR 1444 and 2013 SCMR 544 wherein the following principle was laid down:- "--Promotion--Antedated promotion--Promotion with effect from date of availability of vacancy- Civil servant (petitioner) was inducted in 13S-17 and was subsequently given various assignments in BS-18 on current charge basis--Grievance of civil servant was that he should have been considered for promotion with effect from the date when the post in BS-18 fell vacant--Service Tribunal dismissed appeal filed by civil servant--Validity--Civil servant was inducted into service in BS-17--Subsequently he was promoted to BS-18 on current charge basis, however by that time he was eligible and qualified to be promoted to BS-18 and even vacancies were available--Petition for leave to appeal to Supreme Court was converted into appeal and allowed and competent authority .Was directed to consider civil servant for promotion to BS-18 with effect from the date when the vacancy occurred provided he was qualified to be considered for the same."
9. On the strength of the aforesaid ruling of the Hon'ble Supreme Court, we are of the consistent view that the civil servants are entitled for consideration of promotion from the dates of availability of vacancy subject to their eligibility. As such, they cannot be made to suffer if the promotion posts were not filled in time and the matter of their promotion was unnecessary. Delayed as was done in this case. Hence it is a case of negligence on the part of the respondents. The appellant has never contributed towards any negligence. The stance of the respondents in this regard was neither fair nor justified as expressed vide impugned appellate of der dated 13.5.2016. The respondents have failed to point out any documentary evidence which had restricted them to consider the appellant's case for promotion as per policy circulated on 30.12.2015 when the, vacancy was available.
10. Given the situation, allow this appeal and direct the respondents to convene meeting of the DPC for consideration of promotion of the appellant against the post of CAO (BS-19) w.e.f 29.09.2015, even if otherwise, there is nothing adverse against him, within a period of two months from the date a copy of this judgment is received in the office of the respondents.
11. No order as to costs. Parties be informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.