' MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal, by way of leave of the Court, has been directed against the judgment passed by the Service Tribunal of Azad Jammu and Kashmir on 8-10-2002, whereby the appeal filed on behalf of the appellant was dismissed.
2. The precise facts, giving rise to the present appeal, are that the appellant was promoted to Grade B-18 through Notification No,SH-2(27)/I/97 dated 20-5-1997 against a vacancy occurred on account of promotion of one Dr. Saif-ud-Din alongwith other Dental Surgeons. The appellant was allowed promotion w,e,f, 28-10-1991. It is also averred in the memo. Of appeal that through a Notification No, Admn./11/-1(10)/90 dated 7-1-1996 Dr. Saif-ud-Din and 3 other Principal Dental Surgeons, namely, Dr. Manzoor Ahmed, Dr. Anwar Ahmed and Dr. Murghoob Ahmed, were allowed benefits of promotion in Grade B-19 w,e,f, 14-6-1990, so the post for which the appellant was promoted in B-18 was then vacant since June, 1990. The appellant passed the grading examination on 7-4-1991. Since the effect of promotion of Dr. Saif-ud-Din and other Dental Surgeons was given when they passed the grading examination, therefore, the respondents illegally and mala fidely with a discrimination did not allow the appellant's promotion w,e,f, 7-4-1991 when he passed the grading examination. The appellant filed an appeal before the Service Tribunal which was disallowed vide the impugned judgment dated 8-10-2002.
3. The Service Tribunal dismissed the appeal .Of the appellant mainly on the ground that passing of upgrading Operative Dental Surgery Examination by the appellant on 7-4-1991 Was not disputed by the respondents but the case of respondents was that no post was available on 7-4-1991 when the appellant passed the grading examination. The appellant was given benefit of retrospective promotion from 28-10-1991.
4. It has been contended by Ch. Jahandad Khan, the learned counsel for the appellant, that the appellant has specifically alleged in para No,6 of his memo. Of appeal before the Service Tribunal as under:-- "6. That Director General Health informed the appellant through later No,11732/DGH/97 dated 25-6- 1997 that the benefit of promotion could not be given from 7-4-1991 on account of non-availability of any vacant post. Copy of the letter attached as annexure D."
' In reply to this paragraph, parawise comments were submitted on behalf of respondents, the English translation of which is as follows:-- "On the appeal of Doctor filed before the Prime Minister, official comments have been filed whose photocopies are attached. However, the appeal has not been decided as yet."
' This shows that para No,6 of the memo. Of appeal before the Service Tribunal stands admitted by the respondents as they have not commented upon the fact that on 7-4-1991 the post was vacant or not.
5. The case of the appellant, precisely, is that it becomes crystal clear from the perusal of Notification annexure 'E' dated 7-1-1996 attached with the file of Service Tribunal as well as with the file of this Court at page 27 that Dr. Saif-ud-Din was promoted in grade B-19 on 14-6-1990 and the post in question thus became vacant on 14-6-1990. Since the appellant had not passed his grading examination on 14-6-1990, therefore, the benefit of promotion could not have been extended to the appellant on 14-6-1990. However, the appellant passed his grading examination on 7-4-1991, therefore, he was entitled to pro forma promotion like other civil servants from 7-4-1991 when he became eligible for occupying the post which was vacant since 14-6-1990 but the Service Tribunal committed an illegality while awarding the pro forma promotion to appellant since 28-10- 1991.
6. Sardar Abdul Razik Khan, the learned Additional Advocate-General, controverted the arguments raised by the learned counsei for the appellant and contended that the Service Tribunal has committed no illegality in giving the retrospective effect to the promotion of appellant from 28-10- 1991 when the post was available.
7. After hearing the learned counsel for the parties and perusing the relevant record, it may be stated that as pointed out by the Service Tribunal it is a settled principle of law that retrospective or notional promotion can be given to a civil servant only in case when the post was available in the department or the same was occupied by the civil servant in any capacity. There is no cavil with the argument that the appellant was not occupying the post. However, the post became vacant on the promotion of Dr. Saif-ud-Din on 14-6-1990, but on that date the appellant had not qualified the grading examination. It was on 7-4-1991 that the appellant passed the grading examination, therefore, it was in accordance with law and in the fitness of things that like other doctors the appellant should have been given pro forma promotion since 7-4-1991 instead of 28-10-1991. It is true that merely on the ground of passing the grading examination the pro forma promotion could not be given but the two necessary prerequisites are that in case of retrospective promotion either the post should be occupied by the civil servant concerned or the same should be vacant.
8. We have examined the record carefully and have reached the conclusion that at the time of awarding retrospective promotion to the appellant, the post does not seem to have been occupied by any other doctor. The Service Tribunal has opined in para No,6 of its judgment that the other doctors were awarded pro forma promotions from the date of passing grading examination as their posts were available at that time and some of them were being occupied by them. If this principle is accepted to be true, then there seems to be no justification to refuse pro forma promotion to appellant since 7-4-1991 when he passed the grading examination and the post was already vacant as stated earlier. Our aforesaid view is fortified by reported case of this Court titled Muhammad. Javed v. Secretary Home and 5 others (2002 SCR 1) wherein it was held that if a post was in existence and a civil servant was eligible for promotion but he was ignored for no fault on his part, his case of notional promotion can be considered.
' In another case reported as Nazar Ahmed Khan v. Syed Shabir Hussain Naqvi and 3 others (2001 PLC (C.S.) 303) it was observed at page 586 in a following manner.
"We are also of the considered view that keeping in view the facts and circumstances of the case, the appellant, Nazir Ahmed, could not have been given retrospective promotion since 1985. It is indeed correct that it is within the discretion of the competent authority to award a pro forma promotion to any civil servant provided it is just and equitable and does not adversely affect the rights of any other civil servant."
9. From the record, it does not reveal that if the appellant is given retrospective promotion from 7- 4-1991, the date on which he passed the grading examination and the post was available since 14- 6-1990, the interests of any other employee shall be adversely affected.
10. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment passed by the Service Tribunal on 8-10-2002 and order for notional promotion of appellant w,e,f, 7-4-1991 and also direct to amend the Notification No,SH-2(27)/I/97 dated 20-5- 1997 to the extent of appellant in accordance with our direction. In the circumstances of the case we pass no order as to costs.