1. ' Petitioner through this Constitutional petition has taken exception to the order, dated 19-11-1996 emanated from the Health Department, Government of the Punjab, whereby his request for pro forma promotion to B.S.-20 was rejected by the Provincial Selection Board in its meeting held on 13- 8-1996.
2. ' Facts briefly for the disposal of this Constitutional petition are that the petitioner served with the Health Department in different capacities till the time he retired on reaching the age of superannuation in BS-19 on 14-5-1990. He earlier filed Writ Petition. No,6990 of 1989 seeking direction in the nature of writ of mandamus that his case for promotion to BS-20 was twice placed before the Selection Board but was deferred on account of the pendency of certain enquiries. Said writ petition was disposed of on 14-3-1990 with a direction to finalize the matter of promotion within a period of 3 months.
3. ' Thereafter, an objection was taken by the respondents that since the Rules for the promotion to BS-20 were amended as such the petitioner was not found entitled for promotion. That objection was disposed of by this Court vide order, dated 25-10-1993 holding that the order in the Constitutional petition bearing No,6990 of 1989 was passed as far back as on 14-3-1990 on which date Health Department (General Specialist and Miscellaneous Posts) Service Rules, 1981, were in the field whereunder the petitioner being Medical Superintendent was also entitled to be considered for the promotion to the post in BS-20. Accordingly it was held that the subsequent amendment made through Notification No,SOR-III-I-II/87, dated 16-5-1990, would not be attracted to the case of the petitioner. A direction was issued to the respondents to consider the case of petitioner on merits. Subsequent to this the petitioner's case was considered which resulted in the passing of the impugned order.
4. ' Learned counsel has argued that the petitioner's case for pro forma promotion has been rejected in an arbitrary manner simply in view of his average reports, which according to him fall within the category of good report. He has further stated that minor penalty of censure would not come into the way of pro forma promotion. Reliance in this respect is placed upon Muhammad Anwar v. The Secretary Establishment Division, Rawalpindi and 2 others (PLD 1992 SC 144), Secretary to Government of the Punjab, Education Department, Lahore and another v. Saeed Ahmed Khan (PLD 1994 SC 219), Capt. Sarfraz Ahmad Mufti v. Government of the Punjab and others (1991 SCMR 1637), Muhammad Raeese Azam v, Government of Balochistan through Chief Secretary, S&GAD Department (1995 PLC (C,S.) 151) and Ch. Yar Muhammad Durrajana v. Government of the Punjab and another (1992 PLC (C.S.) 95).
5. ' Learned Law Officer has argued that the matter pertains to the terms and conditions of civil servant as such the jurisdiction of this Court in view of the Article 212 of the Constitution of Islamic Republic of Pakistan, would not be attracted. He has further stated that nobody has got vested right to claim promotion and the petitioner's annual confidential reports were of average nature as such he was not entitled for the pro forma promotion. He has further stated that the minor penalty of censure was twice imposed upon the petitioner during his career and that too would disentitle him from promotion. In support of his contentions, he has placed reliance upon M.A. Rafique v. Managing Director (Power), WAPDA and 7 others (1990 SCMR 927), Government of N.-W.F.P. Health and Social Welfare Department through its Secretary (1990 SCMR 1321) and Government of N.-W.F.P. Health and Social Welfare Department v.
6. Dr. Sh. Muzaffar Iqbal and others (1990 SCMR 1524).
7. ' I have considered the contention and have gone through the documents appended with this petition. I have noticed that the petitioner is craving to get his case considered for promotion in its proper perspective for the last more than a decade. Earlier his case was twice placed before Selection Board but was deferred on account of pendency of enquiries against him. Subsequently in spite of the fact that the said enquiries resulted into minor penalty of censure but even then the case was not finalized. Thereafter, his case was rejected on the ground that in view of the subsequent amendment made in the Service Rules of Health Department through Notification No,SOR-II-I-III/87, dated 16-5-1990, he would not be entitled for the promotion to BS-20. That stance of the respondent was also repelled in C.M. No, 1 of 1993 in Writ Petition No,6990 of 1989 on 20-10- 1993. Again without appreciating the annual confidential reports of the petitioner in its true perspective his case has been rejected through impugned order, dated 19-11-1996.
8. The argument of the learned counsel that the petitioner's case is hit by Article 212 of the Constitution of Islamic Republic of Pakistan as he had got remedy of appeal before the Punjab Service Tribunal in case of his pro forma promotion would not be apt in the circumstances of the present case. While interpreting section 4 of the Balochistan Service Tribunals Act, 1974, of pari materia terms said argument was repelled by a learned Division Bench of Quetta High Court in a case reported in Muhammad Raeese Azam v. Government of Balochistan through Chief Secretary, S&GAD Department (1995 PLC (C.S.) 151) in the following words:- "From bare perusal of the aforementioned sections it becomes crystal clear that the right of appeal has not been provided relating to matters of promotion under Balochistan Civil Servants Act or Balochistan Service Tribunals Act, both. Of course from plain reading of Article 212 of Constitution of Islamic Republic of Pakistan, the exclusive jurisdiction vests with the Tribunals constituted thereunder in respect of terms and conditions of any person in service of Pakistan or a Province but the Legislature has not provided any right of appeal to the persons aggrieved in respect of his promotion. Here again we may take resort to the observations made by Hon'ble Supreme Court in the case reported in PLD 1989 SC 508. It was observed therein that the petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with the relevant Service Tribunals Act."
9. ' Reference is also made to Ch. Yar Muhammad Durrajana v. Government of the Punjab and another (1992 PLC (C.S.) 95). As far as minor penalty of censure is concerned the Hon'ble Supreme Court in case reported in Capt. Sarfraz Ahmad Mufti v. Government of the Punjab and others (1991 SCMR 1637) approved the determination of the High Court in the exercise of Constitutional jurisdiction when the case of incumbant for promotion was not considered because of minor penalty. The Hon'ble Supreme Court made the following observations:-- "The High Court found that the rejection of the respondent's representation at the hands of the Chief Minister was designedly manoeuvred and as only minor panalties were imposed on him, these could not have posed a hurdle for consideration of his case for promotion by the Promotion Board. It was observed that under the rules, on account of minor penalties, award of promotion to the respondent could not have been withheld. Underlined is mine.Reliance is also placed upon Pakistan Broadcasting Corporation through D.G.H.Q. And another v. Nasir-ud-Din (1997 PLC (C.S.)
10. 931).
11. The above resume-demonstrates that the petitioner's case has only been rejected because of the minor penalty of censure. In these circumstances, for what has been stated above, I accept this petition and direct that the case for promotion of the petitioner be placed again before the Provincial Selection Board for his pro forma promotion for its decision in accordance with law and rules. Since it is an old matter the Selection Board respondent shall ensure that the matter is decided expeditiously. There shall be no order as to costs in the circumstances.