JUDGMENT JAWAD AHMED MUFTI, MEMBER-II. - The appellant Dr. Abdul Sattar Chaudhary, had filed Service Appeal No. 2336/97 that he was senior to respondents Nos. 5 to 15 who were promoted earlier than him to BS-18 and to BS-19 and that on promotion to BS-19, he would further regain his seniority in BS-19 over the said respondents who had been promoted to BS-19 prior to his promotion. Mr. Muhammad Aslam, then learned Member-I of this Tribunal accepted his appeal in the following terms vide judgment dated 24.2.1998:- "...The appellant shall rank senior to those of his juniors who were promoted earlier .Than him to BS- 18 and to BS-19 and on promotion to BS-19 he will further regain his seniority in BS-19 over those who were junior to him but promoted to BS-19 prior to his promotion. In the light of the foregoing, the appeal is allowed and the case of the appellant shall be placed before the selection authority for promotion in the light of seniority as discussed above to the post of BS-19, expeditiously."
2. The Government of the Punjab filed C.P. No. 757-L/98 while the private respondents (Dr. Tanveer, etc.) preferred CPSLA No. 522-L/98 (as third party) challenging the judgment of the Punjab Service Tribunal dated 24.2.1998 as aforesaid before the honourable Supreme Court of Pakistan. The leave petitions were accepted by the honourable Supreme Court by judgment dated 23.9.1998 and the judgment of the Punjab Service Tribunal was set aside on the ground that the private respondents Nos. 5 to 15 (Dr. Tanveer Ahmed, etc.) were necessary party. In this view of the matter, the case was remanded with the direction that they would be impleaded in the Memo, of appeal before the Tribunal within ten days whereafter the appeal "shall be decided within four months". It was observed that all the pleas "will remain available" to the parties and the Chairman of the Tribunal might consider the advisability of constituting a larger Bench for deciding the appeal.
3. In pursuance of the above orders of the Honourable Supreme Court of Pakistan, the appellant filed an amended Memo, of appeal on 2.10.1998 adding respondents Nos; 5 to 15.
4. The respondents contested the appeal and filed written comments/objections. They contended that the appellant had not possessed D.P.H./equivalent qualifications, when D.P.C, for BS-19 was held in 1991 and 1994 and was for this reason not selected and that on the other had the respondents were considered and selected for BS-19 by the D.P.C, because they possessed all the requisite qualifications at the relevant time.
5. As against the above contention of the respondents, the plea of the appellant was that he was nominated for the aforesaid course with mala i.e intention by the authorities in the Health Department although it was their bounden duty to nominate the senior officers from Class-II for D.P.H. Course. He had relied upon Notifications Nos. S.O.(M-E-II)3-II-67, dated 28.10.1967 and S.0.(M- E-III)12-74, dated 30.8.1971 (which were brought on record through a Misc. Petition dated 6.2.1998).
6. Respondents Nos. 5 to 15 were admittedly junior to the appellant at the relevant time. On the other had it is also admitted that the appellant did not possess the qualification of D.P.H. Course or other equivalent qualifications as per requirement of the Punjab Health Department (General Specialists and Misc. Posts) Service Rules, 1981 (as amended on 16.5.1990).
7. In the circumstances of the case, the PIV ital question falling for Dr. Abdul Sattar Ch. V.' The Governor of Punjab L&S.C. 157 (Jawad Ahmed Mufti, Member-II) determination would be if the departmental authorities in the Health Department were responsible for not nominating the appellant for the D.P.H. Course or the appellant was at fault in any manner for missing the bus.
8. The contention of the respondents was that according to the prospectus for D.P.H. As issued by the Institute of Public Health, applications for admission were to be advertised in the newspaper and those rules did not provide that the applications for D.P.H. Would be forwarded by Health Department. Referring to rule A-9, it was canvassed that the applicants who were serving in the Provincial Health Department, could apply directly to the Dean, Institute of Public Health, Lahore, on the prescribed Form with a copy through proper channel and that the appellant having not done anything of the sorts was to blame himself and none else. It was further contended that mere length of service up to 18 years (from the date of appointment viz. 15.2.1979 to 15.2.1997) was hot much helpful to the appellant in absence of D.P.H. Qualification.
9. It would be appropriate to examine the contents of the letter dated 28.10.1967 referred to above as issued by the Government of the Punjab, Health Department, to all the Directors of Health Services. For facility of reference, the same may be produced as under:- "You are requested to nominate senior people in your Region from amongst Class-II cadres for D.P.H. Course because no one will be allowed to be promoted as District Health Officer/Medical Superintendents (Class-I appointments) unless he possesses D.P.H. Qualification. Those who have refused to be considered for this training may, therefore, be informed of this situation and their acknowledgement secured and passed on for record so that at the time of promotion those people may not be considered for promotion.
You will also again bring to their notice in a clear language . And obtain acknowledgement of each individual serving in Class- II that he will not be eligible for promotion to Class-I unless he possesses D.P.H. Qualification.
The training programme is being arranged in such a way that the senior most people in Class-II will be given the facility of D.P.H. Training so that at the time of promotion they may not be debarred from the same. Those who would refuse to undergo the training will, therefore, have to do it at their on risk.
However, the acknowledgement of instructions must he received and passed on to this office for record purposes so that subsequently they have no claim for promotion.
This is very essential and the whole issue may be brought to the notice of all concerned in a very clear language."
10. A reading of the above notification of the Government would show that the directive covered a large number of cases and would have thus a force of law. The notification laid stress in unequivocal words repeatedly that "Senior people" in the region from amongst Class-II officers for D.P.H. Course would be "nominated" and it had been urged again and again impressing upon the authorities concerned to obtain acknowledgements and then to pass them on to the Health Department so that those who would refuse to taking the training, could not claim promotion without possessing the D.P.H. Course. It, therefore, lay upon respondents Nos. 1 to 4 (departmental authorities) to have shown if the appellant was informed that D.P.H. Training course was being held on such and such date and that he being the senior most was competent to apply. It also lay upon them to have proved that the appellant had missed the bus of his on accord despite clear information/opportunity having been granted to him for applying for the D.P.H. Course. The word "nominate" as per Oxford Dictionary would mean "call by name of, retention by name, name or appoint, appoint or propose for election". In my humble opinion, the appellant had to apply through proper channel for the selection in the D.P.H. Course as he was to be nominated by the departmental authorities being the senior most in the cadre. There was nothing on record to prove that the appellant was ever called for being nominated for the said course by the departmental authorities concerned. It' is not the case of. The respondents that the service record of the appellant was unsatisfactory rendering him unfit for getting training in D.P.H. Course. When admittedly he was the senior most, he should have been given preference to all the private respondents arrayed herein (respondents Nos. 5 to 12). In Service Appear No. 634/91 decided on 16.4.1995 by Mr. Justice (Retd.) Akhtar Hassan, as the Chairman of this Tribunal (as he then was), it was held that the appellant having been withheld for the requisite training course without lawful justification, would become eligible for promotion from the back date when his juniors might have been. Promoted if he later got the requisite training. The judgment of the Tribunal was upheld by the honourable Supreme Court in Civil Petitions Nos. 756-L and 790-L of 1995 vide judgment dated 2.10.1995, observing that the seniority of the officer concerned for purposes of promotion could not have been disturbed particularly when he was not at fault at any stage. It was also observed that the senior most person was entitled to proceed on training and that proper discretion should have been exercised by the authorities concerned. The record does not give any indication that the departmental authorities had ever made any effort to nominate the appellant for the training course of D.P.H. In a similar situation, the honourable Lahore High Court in W.P. No.. 3002 of 1998 (decided on 24.4.1989) had ruled that the officer who was detained and not sent for D.P.H. Course without lawful justification, would be entitled to regain his seniority vis-a-vis those who were promoted in preference to him on the strength of D.P.H. Course having been done. A certified copy of the order dated 18.12.1991 passed in Writ Petition No. 11770/91 placed on record on behalf of the appellant, showed that be had been resorting to the honourable High Court to do and complete his D.P.H. Course. It was his case that examination of D.P.H. Held in 1992 was cancelled by the University authorities on account of political pressure of Union. The examination was held in June, 1994 and its Jesuit was declared on 6.2.1995. The conduct of the departmental authorities in having not nominated the appellant for the said course at the relevant time offended against the equality clause and Fundamental Rights as enshrined in Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. His cause being recurring could not be dubbed as barred by time. His case was that his juniors had been given promotion in BS-19 ignoring him without any lawful justification and that this (get had come to his knowledge on 22.3.1997 whereafter he filed departmental appeal on 23.3.1997. He explained that he remained D.M.S. (Night) from 1987 to 1995 and was never negligent in claiming his rights. Respondents Nos. 13 to 15 were not juniors to the appellant but were promoted only on the length of service and without having possessed the D.P.H. Or equivalent qualifications. There was no solid basis to hold that the appellant had gained knowledge in any manner earlier than he claims. Even otherwise, the claim of the appellant having been found quite genuine and the conduct of the appellant being not appreciable vis-a-vis the directions contained in the notification dated 28.10.1967 referred to in paragraph 9 above the question of limitation must be held to have paled into insignificance. The application moved by the appellant seeking condonation of delay could not be successfully controverted in the above circumstances. It is allowed.
15. For all the above reasons, the appeal is accepted to the effect that the appellant shall rank senior to those of his juniors (respondents Nos. 5 to 12) who were promoted earlier than him in BS- 18 and to BS-19, and on promotion to BS-19, he will further regain his seniority in BS-19 over those who were junior to him but were promoted to BS-19 prior to his promotion. The departmental authorities are directed to give effect to this judgment in letter and spirit within a period of one month as the promotion case of the appellant has already been delayed to an alarming extent.
The parties shall bear their costs.