' Dr. Muhammad Yousaf, Associate Professor, Operative Dentistry, has filed the present appeal against order, dated 2-12-1998 whereby his promotion as Associate Professor was deferred and finally by order, dated 13-3-2001 when his representation was turned down by Secretary Health arrayed as respondent No,2.
2. Learned counsel for the appellant contended that the appellant was appointed as Assistant Professor in September, 1989 on the recommendation of the Punjab Public Service Commission.
One of the qualifications provided vide notification dated 21-5-1988 for promotion to the post of Associate Professor was publication of at least three research papers in a standard dental/medical journal in addition to five years' teaching experience as Assistant Professor. Since the appellant was ineligible for the post of Associate Professor, as he was found deficient in the publication of one research paper, he was not considered for promotion as Associate Professor in the year 1994. Consequently, appellant got published the requisite paper in Pakistan Oral Dental Journal which was also submitted to respondent No,2 alongwith his application dated 29-1-1996 for being considered to the post of Associate Professor. It is averred that in December, 1995/January, 1996, a clear-cut vacancy was also available and the promotion of the appellant to the post of Associate Professor was fully ripe as he qualified in all respects but without any justification appellant's case was not processed till December, 1998 and ultimately he was appointed as Associated Professor (BS-19) on 212-1998, within immediate effect, instead of December, 1995/January, 1996. He made a representation to the Secretary Health which was not attended to but having obtained orders from the High Court in Writ Petition No,1465 of 2001 respondent No,2 was directed to attend to the representation of the appellant preferably within a month and thereafter disposed it of through a speaking order. It is urged that the representation was turned down by respondent No,2 on 13th March, 2001 and hence this present appeal in which the orders have been impugned.
3. Learned counsel repeated his arguments which were taken in his grounds of appeal. Learned District 'Attorney in reply stated that ante-dated pro forma promotion can only be claimed if seniority is affected when the incumbent is not considered earlier in time within the result that his juniors are promoted. It was urged with vehemence that since none else except the petitioner was promoted between 1995-1998, appellant cannot, as a matter of right, claim promotion and that the promotion now made is also subject to the decision of Writ Petition No,6271 of 1995 in which the Master Dental Surgery's Degree of the appellant has been challenged by Dr. Sohail Abbas. Learned District Attorney also stated that Provincial Selection Board could not assemble because of rush of work and, therefore, the petitioner's case could not be considered for promotion as Associate Professor with effect from January, 1996.
4. I have attended to the arguments of the respective counsel and have also gone through the record including the parawise comments submitted by the respondents.
5. It is now a right of a Government servant to claim for a post firstly which is vacant and secondly he is eligible for it in all respects and thirdly according to the list of seniority he is entitled to the same to be filled as soon as possible, so that in case of his future promotion, instead of being marred by a late promotion, he should be in line for promotion to the next higher post. In this regard, I am fortified in my observations by some judgments of the Apex Court. In the case of Government of the Punjab through Secretary Education and another, v. Rana Ghulam Sarwar Khan and 111 others, it was held that undoubtedly no civil servant has right to claim that he should be promoted from a back-date from which the promotion is being claimed but there being no order by the Government that the respondents should be held up for promotion for good reasons, the delay in making promotion occurred entirely due to the reason that the officials of the Education Department did not carry out fairly simple exercise within a reasonable period. Reference here was being made to the working out of the ratio by the Government in Grade-17 to 20. Dismissing the appeal of the Government Hon'ble Judge held that it would not be appropriate for the Court to interfere with the order of the Service Tribunal directing the Government to promote civil servant from specified date. Again. In case of Ch. Muhammad Siddique and four others v. Director, Special Education and 7 others, it was held maintaining the order of the Service Tribunal wherein respondent's promotion on the principle that promottee was entitled to promotion from the date when the post fell vacant. Judgment of the Service Tribunal was held to be just and fair and did not suffer from any illegality. In the matter of exercise of discretion, Hon'ble. Supreme Court of Pakistan in the case of Walayat Ali Mir v. Pakistan International Airlines Corporation, 1995 SCM R 650 held that authority should not act arbitrarily, unreasonably with incomplete disregard of relevant rules and regulations. Exercise of discretion is circumscribed by the principles of justice and fairness and while doing so the criteria to be kept in mind was to advance aim and object of an enactment, rule or regulation under which it was authorized to act. In the matter of promotion learned Court held that there was no cavil that no employee has vested right of promotion which may be correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach and deviation either due to any mala fide reasons or due to arbitrary act of competent authority would entitle aggrieved person to challenge the same.
6. Applying the dictum of the Apex Court to the facts of the present case, promotion of appellant was kept in abeyance, from January, 1996 when he was fully qualified for being promoted to the post of Associate Professor till the date of his appointment i,e, 2nd December, 1998 for almost about two years, deprived him of a valuable right of further promotion particularly now when he is about to retire in August 2001. I am not impressed with the arguments of learned District Attorney, having been instructed by the departmental authorities that the Provincial Selection Board could not be convened because of rush of work, what was that abnormal rush of work has not been brought on record to convince me that it was humanly impossible for the Board to consider the matter of promotion of the appellant for which he made repeated requests and was running from pillar to post to get his right. Resultantly, I am of the view that fair and just treatment has not been meted out to the appellant, rather exercise of arbitrarily power has deprived him from being promoted with effect from January, 1996. Resultantly, I accept the appeal, set aside the order passed in representation by respondent No,2 dated 13-3-2001 and as a consequence order, dated 2nd December, 1998 with the result that he shall be considered to have been promoted with effect from January, 1996 as Associate Professor. However, order will be subject to the final decision in Writ Petition No, 6271 of 1995 titled Dr. Sohail Abbas v. Dr. Muhammad Yousaf and others. As a corollary of the pendency of the referred to writ petition, the appellant shall not be entitled to any monetary benefits arising from his ante-dated pro forma promotion awarded to him as a result of acceptance of his appeal and the same would be subject to the decision in Writ Petition No,6271 of 1995. As far as relief for promotion to the post of Professor is concerned, appellant shall make an application to the concerned authority which, I am sure will be dealt with on merits.