' ROSHAN ALI MANGI (MEMBER).--- The brief facts of the case are that the appellant, Dr. Shamshad Bano, joined Government service on 10-10-1968, as a Medical Officer. Her services were regularised through FPSC with effect from 24-9-1970. She was promoted to B-18 in the year 1974 and since then she has been working in the Department of Paediatric, Federal .Government Services Hospital, Islamabad. The appellant did her Postgraduate Specialisation in Paediatric in the year 1980.
2. It is stated that the post of Associate Physician in B-18, was created in the FGSH in 1983 for evening shift. A meeting of the DPC was held on 26-2-1987 to consider and recommend the names of eligible Medical Doctors for the said post. The appellant's name was also considered for the same post. However, Dr. Shabnam Farooqi of JPMC (Karachi) being a senior most was recommended for promotion. She was promoted on 13-4-1987. According to the appellant, Dr. Shabnam Farooqi, did not assume the post of FGSH but was adjusted/posted against the post of Assistant Professor (Dermatology) at JPMC, Karachi, with effect from 27-9-1987. The appellant feeling that since Dr. Farooqi did not assume charge at Islamabad and subsequently had joined the JPMC at Karachi, thought that the post against which Dr. Farooqi was promoted had become vacant. She, therefore, moved an application to the competent authority to promote her to that post.
3. In the meantime, another post of Neonatologist which is a minor Branch and sub-speciality of the Paediatric was created in B-18. According to the appellant, that post was filled in by respondent No, 4 with effect from 24-2-1988 although she was eligible and possessed all qualifications required for the post. Not only this but the respondent No, 4 was ten years' junior to her. .She, therefore, felt aggrieved by this action of the respondents Nos. 2 and 3 considering it to be illegal and mala fide. She, therefore, had represented to the authority against such an action pin-pointing that the post so filled in was promotion post and was filled in without circulating it. Under the circumstance she could not apply for the post. Had it been circulated she would have surely applied for it, the post being in promotion quota therefore, would have gone to a senior-most medical doctor. And she being a senior-most medical doctor would have been promoted to that post.
4. While her representation was under consideration of authority, the respondents Nos. 2 and 3, yet brought amendments in the Recruitment Rules to provide a legal cover to the respondent No,4's appointment and thereby afford him chance to become the head of the Paediatric Department in future.
5. The appellant went in Writ Petition No, 1392 of 1994 in the Lahore High Court Bench at Rawalpindi.
The Hon'ble High Court remanded the case to the department to pass such order as may be necessary as may be called for in the circumstances of the case in accordance with law and to dispose of the pending representations of the appellant's within six weeks. Pursuant to the order of the Hon'ble High Court, the appellant initially was appointed as Associate Physician (Paed) on officiating basis with effect from 20-8-1991, and later on regularised with effect from 11-10-1991, i,e, the date on which the post became vacant on a regular basis when its former incumbent i,e, Dr. Farooqi was promoted against the higher post.
6. The appellant, however, went on requesting the authorities to promote her with effect from 12-4- 1987, the date she was considered for promotion but instead of her Dr. Farooqi was recommended for promotion. However, this request of the appellant was not acceded to by the competent Authority.
7. According to the recruitment rules, every specialist including the Neonatologist are eligible for promotion to B-19 post. This post has further been upgraded to the Consultant Physician (B-20) and soon will be filled in through direct recruitments and has already been advertised. The appellant, therefore, preferred a departmental representation to the Prime Minister on 19-8-1995, which was rejected by the competent Authority vide Memorandum dated 23-7-1995, she has, therefore, preferred this appeal before the Tribunal.
8. The appellant was represented by Hafiz S.A. Rehman, Advocate. Mr.Nasar Ahmad, Section Officer, appeared on behalf of Ministry of Health and respondent No, 4 appeared in person. The comments also have been filed on behalf of the respondents Nos. 1 and 2, besides this, respondent No, 4 also submitted his preliminary objections.
9. Reading the case of the appellant, the learned counsel stated with force that she was considered amongst others for promotion to the post of Associate Physician (B-18) in the DPC meeting held in 1987. However, Dr. Shabnam arooqi of JMPC, Karachi being the senior most Medical Officer was promoted vith effect from 13-4-1987. Dr. Farooqi was subsequently posted/adjusted as assistant Professor (Dermatology) at JPMC, Karachi on 27-9-1987. She did not ssume charge of Associate Physician in FGSH, as such the post fell vacant. The appellant continued to work against that post. He, therefore, argued that on her regular promotion on 11-10-1991, she should have been granted seniority from the date Dr. Farooqi did not assume the charge of the said post i,e, with effect from April, 1987 as she was considered for promotion in a meeting held on 26-2-1987.
10. The respondent department on the other hand, contended vide comments so filed that Dr. Farooqi was posted as Assistant Professor in JPMC, Karachi in the public interest on 27-9-1987 on purely temporary basis till the availability of ad hoc appointees or FPSC nominee. It is further clarified that the request of the appellant for promotion as Associate Physician (Paed) with effect from 12-4-1987 could not be acceded to for the reason that the post was held on regular basis by Dr. Shabnam Farooqi who consequent upon her temporary posting/transfer to JPMC, Karachi did not leave a regular vacancy in the cadre of Associate Physician (Paed) (B-18) in FGSH, Islamabad.
From this it follows that in fact the post against which Dr. Shabnam Farooqi was promoted, was not vacant but held by her although she worked in public interest in JPMC. The record shows that soon after, that post vacated by Dr. Farooqi on her promotion to next higher grade, the appellant was promoted and accommodated against the said post. Obviously, she would reckon her seniority from the date she assumed the charge of higher post under section 8(4) of Civil Servants Act, 1973.
11. The learned counsel on behalf of the appellant pleaded that respondent No, 4 was promoted to the newly-created post of Neonatologist (B-18) although he was junior to the appellant by 10 years.
He further argued that the appellant was eligible for the same post and had all the required qualifications and experience for the post. Not only this, but in order to favour respondent No, 4, the post was not circulated. Under the circumstances, the appellant could not apply for the said post.
This post falls in promotion quota and should have gone to. The senior most medical officer. And, therefore, should have gone to the appellant being a senior most Medical Officer in that cadre.
12. This had been controverted on behalf of the respondents vide comments, and explained that the said post was circulated to all the Medical Officers but only the FGSH nominated respondent No, 4 for the said post and accordingly he was considered and promoted to that post.
13. We find, although the appellant submitted representations to the higher authorities against the promotion of the respondent NQ. 4 but she did not come to the Tribunal for the redress of her grievance when it arose at that time. Now it is too late to consider at this stage.
14. The learned counsel for the appellant also objected to the amendments made in the recruitment rules considering them in favour of the respondent No,4. According to him, these amendments were not only to favour the appointment of respondent No, 4 but also created better chances of his future promotion to the post of Consultant Surgeon (B-20) which has already been upgraded and advertised. It has been contended on the other hand on behalf of the respondents that the post of Neonatologist was included in the feeding posts of Physician (Paed) (B-19) with the approval of the Establishment Division and FPSC. It was done to provide a line of promotion for the incumbent of the post of Neonatologist (8-18) to a post of specialists cadre like other cadres to higher post.
15. It is clear from above that amendments so made were done in consultation with the Establishment Division and FPSC and was meant to provide chances for the Doctors of the cadre to the higher post. If she had any grievance against the said amendments, she should have been come to the proper forum i,e, Federal Service Tribunal to get her grievance redressed there at that time. Now it is too late. Moreover, the post of Consultant Surgeon (B-20) has already been advertised and all the eligible Doctors in the cadre can apply for it. It is open to all including the appellant to compete for the post before the FPSC, as such the appellant can apply for the post.
16. For the reasons recorded above, the appeal having no merit, is dismissed with no order as to costs.
17. Parties be informed.