' The petitioner after obtaining the degree of M.B.,B.S., was appointed Medical Officer in BS-17 on 16- 9-1980 by the Government of the Punjab on the recommendation of the Punjab Public Service Commission. He, along with some other Doctors was promoted as Senior Medical Officer in BS-18 with effect from 1-7-1986 on the recommendation of the Departmental Promotion Committee, vide Notification No,S0(A-II)19- 15/90, dated 15-10-1990 issued by the Government of the Punjab, Health Department. In the month of August, 1994, the petitioner also obtained postgraduate degree in M.Sc. Medical Administration which according to the letter dated 4-12-1986 of the Pakistan Medical and Dental Council, Islamabad addressed to Mr. S.M. Musharaf Hussain, Section Officer, Government of Pakistan, Ministry of Health, Special Education and Social Welfare, Islamabad" is a post-graduate degree and ranks higher over all the Diplomas like DPH/DHSA etc. Awarded inside or outside the country in the field of Medical Administration" and "it is the highest qualification available in the country in the field of Medical Administration" (Annexure On the basis of his length of service and the post-graduate degree of M.Sc. Medical Administration, the petitioner claimed promotion in BS-19.
2. The petitioner was appointed as Additional Medical Superintendent in the Holy Family Hospital, Rawalpindi vide office order dated 15-2-1995 (Annexure 'D'). Subsequently, through Office Order dated 31-10-1996 (Annexure 'H') the petitioner was appointed as Additional Director, Health Services, Rawalpindi and through Office Order dated 6-5-1997 (Annexure "I'), the petitioner was transferred and appointed as Chemical Examiner, Rawalpindi where he is presently working.
Although the posts of Additional Medical Superintendent. Additional Directors and Chemical Examiner carry pay scale in BS-19, yet the petitioner was directed to work "in his own pay and scale". The petitioner has, therefore, invoked Constitutional jurisdiction of this Court for redressed of his grievances.
3. Learned counsel for the petitioner made two-fold submissions; firstly, that the petitioner on account of his length of service and qualification was fit to be promoted to the next higher grade in BS-19, and secondly, the petitioner having been ordered to serve as the Additional Medical Superintendent, Additional Director, Health Services and the Chemical Examiner, which carry pay scale of 19 Grade, is entitled to the emoluments of these posts in Grade-19 for the period he has served against such posts. He also submitted that vacancies in Grade-19 are available, but the petitioner has been refused promotion in Grade-19, which deprived him of its benefits.
4. The learned Law Officer has admitted that the petitioner possesses the requisite qualification and length of service for promotion in Grade-19 and that the petitioner is serving against the post which carries pay scale in Grade-19. He, however, submits that the respondents have the power to determine fitness or otherwise of the petitioner and discretion to promote in the next higher grade, vests in them which cannot be assailed in writ jurisdiction.
5. With regard to the payment of emoluments and other benefits of the post of Grade-19 in which the petitioner is actually serving, the learned Law Officer submitted that he could be paid emoluments of a post in Grade-19 only when he is actually promoted in such a Grade and that since no such promotion has been made in case of the petitioner, he would not be entitled to the emoluments and other benefits of Grade-19 post.
6. The Governor of the Punjab under section 23 of the Civil Servants Act, 1974 promulgated Punjab Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981 prescribing the conditions and qualifications for appointment of officers in various grades, vide Notification dated 24-1-1981. Rule 3 of these Rules provides that:-- "Method of recruitment, minimum qualification, age limit and other matters related thereto for the post shall be as given in the schedule annexed."
7. The Schedule to these Rules provides that for the appointment against a post carrying pay scale 19, the appointment shall be made in the following manner:- "By promotion on the basis of selection on merit from amongst the officers in Grade-18 Specified in Serial No,. 6 having 12 years in Grade-17 and above in the Department."
' This Schedule was subsequently substituted vide Notification dated 23-7-1995 which, inter alia, provided the following method of recruitment against Grade-19 posts:-- "By promotion according to the notified ratio, seniority-cum-fitness from amongst the Senior Medical Officers or equivalent post with 12 years' service in BS-17 and above."
8. In this regard reference may be made to para. 5 of parawise comments filed by the Deputy Secretary on behalf of respondent No,2 wherein it is stated as follows:-- "According to the amended service rules, 1995, promotion in 19-Grade will be made as under:--
(i) By promotion according to the notified ratio seniority-cum-fitness from amongst the Senior Medical Officers or equivalent posts with 12 years' service in BS-17 and above.
(ii) At least 2 years Rural Area Service to be completed on 1-1-1997 onwards. He will be promoted in Grade-19 on his turn according to the seniority-cum-fitness."
9. The petitioner has also complained against discrimination on the plea that Dr. Waqar Nabi Bajwa, who was junior to the petitioner, was promoted in Grade-19 in the month of August, 1996 whereas the petitioner was not even considered. This assertion of the petitioner is not denied in the parawise comments wherein the lame excuse that, the record of the petitioner and other was not complete at that time", is offered.
10. It is admitted that the petitioner had the requisite qualifications and the service to be considered for promotion in BS-19. He has rendered more than 17 years' service, including 11-1/2 years' service in BS-18. The fact that since 15-2-1995 he is continuously working against posts in Grade-19, is sufficient proof of his eligibility and fitness for promotion in Grade-19. It is also admitted that posts of Grade-19 officers are available. It is stated in the parawise comments that due to scarcity of Grade-19 officers, petitioner was directed to work against such posts.
11. Having obtained the requisite educational qualifications and experience and having rendered more than 12 years' service in Grades-17 and 18, the petitioner was fit and entitled to be promoted in BS-19, especially when the posts in the grade are available. By not doing so the respondents have denied him the right to the higher post and other benefits. The respondents have committed another wrong by posting the petitioner and making him to work against the posts carrying pay scale 19 and with greater responsibilities, but denying him the emoluments of BS-19. In similar circumstances the Hon'ble Supreme Court in "Post Master General Eastern Circle (E.P.) Dacca and another v. Muhammad Hashim PLD 1978 SC 61) held that:-- "This rule clearly contemplates that where a person is promoted to officiate in a higher post, involving the assumption of duties and responsibilities of greater importance, he would ordinarily be entitled to a higher pay unless of course the Government, in the exercise of the power given to it under Fundamental Rule 35, has decided to give him a lesser benefit. The contention of the appellant is that rule 35 gives an absolute discretion to the local Government or the delegate not to give any benefit at all. The question is whether the interpretation is tenable upon the language of rule 35 itself. In our opinion all that rule 35 permits is the payment of a lesser amount than which would otherwise have been admissible under the Fundamental Rules themselves to an officiating employee. Reading this rule along with rule 30, which is not subject to rule 35, we are unable to accept this contention. Fundamental Rule 35 gives no such wide or unguided discretion. It only permits the fixation of a lesser amount but from this it does not follow that no benefit need at all be given. The Government's own decisions printed in the official compilation of the Fundamental and Supplementary Rules themselves would indicate that the rule was not intended to deprive a person of a higher remuneration if he was assuming duties and responsibilities of greater importance than those attaching to his substantive post. Thus, the departmental interpretation does not also support the wide contention now sought to be put forward. If the Rules are capable of bearing a reasonable interpretation favorable to the employee then that interpretation should be preferred.
In our view, therefore, the High Court rightly holds that the Postmaster-General could not have totally restricted the pay of the respondent to his substantive pay in Grade-II while he was officiating in a higher Grade."
12. In the light of the above discussion, this writ petition is accepted with costs and it is declared that the petitioner was fit and entitled to be promoted against a post in BS-19, at least with effect from 15-2-1995, when he started working against Grade-19 posts and is entitled to all the benefits of service in Grade-19 with effect from 15-2-1995, including the pay and other allowance in that grade.