IFTIKHAR MUHAMMAD CHAUDHRY, J. - By this order we intend to dispose of Civil Petitions Nos. 1 and 2-Q of 1999 against the common judgment of Baluchistan Service Tribunal in Service Appeals Nos.
56 of 1997 and 11 of 1998.
2. Precisely stating facts of the cases are that petitioner Abdul Rauf was promoted/appointed as Deputy Secretary B-18 with effect from 13th July, 1995 with retrospective effect i.e. 25th January, 1995 whereas respondent No. 3 Khair Muhammad Shahwani was also promoted as Deputy Secretary (B-18) with effect from 6th April, 1995 and as petitioner was promoted with retrospective effect in B-18, therefore, in final seniority list dated 17th June, 1997 petitioner was shown senior in B- 18 from respondent Khair Muhammad Shahwani as such respondent agitated his grievance before Baluchistan Service Tribunal by filing two appeals, one being No. 56 of 1997 wherein seniority list was questioned and second No. 11 of 1998 in which promotion of petitioner to B-19 vide notification dated 10th September, 1997 was assailed. Learned Baluchistan Service Tribunal disposed of both the appeals by common impugned judgment.
3. Syed Ayaz Zahoor learned ASC contended that appeal filed by respondent Khair Muhammad Shahwani against the final seniority list dated 17th June, 1997 was barred by the but learned counsel could not demonstrate as to how the appeal was filed beyond limitation, therefore, we are inclined to concur with finding of the Tribunal that appeal is within time.
4. Learned counsel on merits argued that as petitioner was officiating in B-18 with effect from 25th January, 1995, therefore, he was rightly promoted in B-18 with retrospective effect vide notification dated 13th July, 1995 as per judgment reported in 1997 SCM R 1514 (Muhammad Siddique Ahmad Khan and others Vs. Pakistan Railways through Financial Advisor and Chief Accounts Officer, Pakistan Railways Lahore and others).
5. We have curiosity to know whether under the provisions of Baluchistan Civil Servants Act, 1974 (hereinafter referred to as the "Act") read with Baluchistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 (hereinafter referred as the "Rules") there is any substantive provision conferring a right upon a civil servant to claim promotion in the higher grade in the post against which he has been working in officiating capacity. Therefore, we called upon the learned counsel to point out any such provision from both the laws referred to hereinabove but he could not find out any provision supporting his contention. However, he emphasized that argument raised by him gets support from the reported judgment. We have carefully examined Section 9 of the Act and Rule 10 of the Rules, and on examining them we failed to note any provision to support the arguments of the learned counsel that at ; the the of regular promotion of an employee he can be promoted retrospectively from the date since when he was officiating on the said post. Because such promotion i.e. Officiating is made only as stopgap arrangement. As far as the judgment cited by the learned counsel is concerned it is distinguishable because as per facts of the case appellants were promoted to the higher grade till further orders to officiate as Pay Clerks from the posts of Cash Counter Clerks subject to the condition that they would appear before the Selection Board when constituted and they will have to remain on probation for 6 months. In view of this background this Court held that according to Section 6 of Civil Servants Act, an initial appointment to a service or post referred to in Section 5 not being an ad- hoc appointment shall be on probation as may be prescribed. It was further held that this shows that an ad-hoc appointment cannot be on probation and an appointment on probation cannot be ad-hoc. Thereafter, quoting relevant provisions of law under which the services of the appellants were being governed it was concluded that they were to remain in probation for a period of six months at the end of which they were either to be continued in their posts or were to be reverted to the posts of Cash Counters/Clerks, depending on their earning satisfactory reports, etc. Whereas in the case in hand as per contention of Syed Ayaz Zahoor, petitioner was allowed to officiate in B-18 as Deputy Secretary and while promoting him regularly the period during which he had officiated was considered to be the period from which he was allowed to officiate. It is also important to note that in view of the background of the case in hand the petitioner was allowed promotion with retrospective effect i.e. 25th January, 1995 intentionally in order to stop him not to raise any objection against the contract appointment of respondent No. 2 Secretary Baluchistan Provincial Assembly, therefore, from this point of view he was promoted with retrospective effect but despite that petitioner filed Constitutional petition against respondent No. 2 which was withdrawn at his behest on 5th July, 1997 and thereafter, he was promoted in B-19 with effect from 10th September, 1997 despite the fact that his case was not put up before die Selection Committee because no post was available. Therefore, we feel no hesitation in concluding that it was the petitioner who managed tactfully to get him declared senior in the seniority list from respondent in B-18 and by adopting the same device he got promotion in B-19. It is very important to note that retrospective promotion of petitioner in B-18 with effect from 25th January, 1995 omitted to note that favour was being done to the petitioner at the cost of respondent Khair Muhammad Shahwani because in this manner he would not be entitled for promote in the next higher grade.
6. In view of this discussion we are of the opinion that as far as holding a charge of a higher post in officiating capacity does not confer a vested right upon an employee to claim his promotion from the date when he was allowed to discharge his duty in such officiating capacity either under Section 9 of the Actor under Rule 10 of the Rules. The Baluchistan Service Tribunal on having gone through in detail the above facts of the case has concluded that petitioner had wrongly been shown senior to respondent in B-18 and similarly his promotion to B-19 was also unwarranted in law. Such finding of the Tribunal seems to be just and proper, therefore, calls for no interference by this Court.
7. Accordingly for the above discussion the petitions are dismissed and leave is refused.