2000SCMR 1510

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan andI ftikhar Muhammad Chaudhary, J J
Dr. MUHAMMAD RASHID and others---Petitioners
versus
GOVERNMENT OF PUNJAB through Secretary S.G.A. & D
Department and others---Respondents
Civil Petition for Leave to Appeal No. 1372-L of 1999, decided on 26th April, 2000. .
(On appeal from the judgment; dated 5-8-1999 passed by Punjab Service Tribunal, Lahore in
Appeal No.831 of 1996).
(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974----
----R.8(2)---Seniority---Civil servant not appointed against a clear substantive vacancy, his
status at the best could be considered as that of ad hoc officer who had been allowed to work
till the availability of substantive vacancy--Such civil servant legitimately could not compete
in seniority with those who had been appointed against substantive vacancies, irrespective of
the fact whether appointment was through promotion or by method of initial recruitment.
(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974----
----R.8(2)---Seniority---Interpretation of R.g(2), Punjab Civil Servants (Appointment and
Conditions of Service) Rules, 1974---Provision of R.8(2) determines the seniority vis-a-vis
the promotees and appointees through initial recruitment if they are holding substantive
vacancies but if their appointments have been made otherwise against the posts which were
not available, they will not be entitled to claim benefit of R.8(2).
1994 SCMR 795 and 1994 SCMR 1957 distinguished.
Hafiz Tariq Nasim. Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for
Petitioners.
Nemo for Respondents Nos. l and 2.
Hamid Khan, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for
Respondents Nos.3 to 6.
Date of hearing: 26th April, 2000.
ORDER
IFTIKHAR MUHAMMAD CHAUDHARY, J.---The summarised facts relevant for
disposal of instant petition are that petitioners and three other Assistant Professors namely
Dr. Ejaz Ahmad, Dr. Akhtar Ali Tahir and Dr. Asif Sadiq Syed were appointed/promoted as
Associate Professors (Surgery) in the Teaching Cadre of Health Services of Government of
Punjab vide Notification No.SO (Admn.I) 2-9/85, dated 1st September, 1994.
At this juncture it would not be out of place to note that before issuance of their
appointment/promotion letters their cases were processed through the Department of
Services, General Administration and Information to fill up three available vacancies meant
for the quota of promotion from the cadre of Assistant Professors to the next higther post i.e.
Associate Professors. It may be clarified that the Government of Punjab through Services,
General Administration and Information Department vide its Notification No.SOR-Ill-1-
36/78, dated 20th December, 1979 had fixed the quota of Associate Professors for the
Medical Teaching Institutions at the ratio of 1/3rd by initial recruitment and 2/3rd by
promotion. However, petitioners' name were placed on fit list for promotion quota vacancies,
meaning thereby that the promotion of the petitioners was ordered by the Health Department.
despite the fact that there was no vacancy available in promotion quota.
2. As far as respondents Nos. 3 to 6 are concerned they were appointed as Associate
Professors by initial recruitment on the recommendations of Punjab Public Service
Commission by the Health Department vide notifications, dated 1-12-1994, 13:2-1995 and
26-3-1995 respectively.
3. Later on a combined seniority list of the Associate Professors viz. appointed by promotion
and initial recruitment was issued wherein respondents Nos.3 to 6 were shown junior to the
petitioners in seniority, as such they represented to the Health Department, Government of
Punjab for correction of seniority list. Their representation was accepted vide letter, dated 7-
4-1996 and 11-4-1996 and accordingly correction in the seniority list was recorded.
4. The petitioners expressed their reservations against above decisions of the Health
Department, therefore, they approached Punjab Service Tribunal, Lahore by filing appeal
which has been dismissed vide order, dated 5th August, 1999. Concluding para. therefrom is
reproduced hereinabelow:--
"We, therefore, hold that the impugned orders, dated 7-4-1996 and 11-4-1996
are quite in accordance with the Rules and the law laid down by the Supreme Court.
We further find that there is no force in the appeal which is hereby dismissed. "
5. Against the order of Punjab Service Tribunal instant petition. Has been filed
by the petitioners for leave to appeal.
6. Learned counsel for petitioners contended that as per Rule 8(2) of the Punjab Civil
Servants (Appointment and Conditions of Service) Rules, 1974 (hereinafter referred to as the
"Rules") the petitioners shall rank senior to the respondents because they were in the service
of Health Department as Assistant Professors prior to joining the service by respondents
through initial recruitment, therefore, petitioners are entitled for the protection of their
seniority which they were enjoying as Assistant Professors. In this behalf he placed reliance
on the judgments reported in 1994 SCMR 795 and 1994 SCMR 1957.
7. Learned counsel for caveators argued that the petitioners and respondents were inducted in
the Health Services as Associate Professors by two different methods i.e. promotion from the
rank of Assistant Professors and initial recruitment respectively. To elaborate his arguments
he submitted that admittedly against vacancies meant for promotion quota three doctors
namely Dr. Ejaz Ahmad, Dr. Akhtar Ali Tahir and Dr. Asif Sadiq Syed were cleared by
Services, General Administration and Information Department vide its decision, dated 25th
March, 1994 and by means of this letter petitioner was placed on fit list. He further
contended that out of total 7 vacancies in the cadre of Assistant Professors three doctors were
to be promoted amongst the Assistant Professors whereas 4 Associate Professors were to be
recruited through initial appointment. So far private respondents are concerned they were
appointed against 4 clear vacancies meant for initial recruitment. Thus petitioners have no
right to be promoted as Associate Professors because no vacancy for the quota of promotion
was lying 1,acant but the department by adopting illegal tactics promoted them. Therefore, he
contended that seniority of promotees and doctors appointed through initial recruitment shall
be determined as per Rule 8(2) and the law laid down by this Court relied upon by the.
petitioners' counsel.
8. We have heard parties' counsel at considerable length and have also gone through
impugned judgment passed by Punjab Service Tribunal. qt the outset it may be noted that
there is no dispute between the parties that ih the batch in which Dr. Ejaz Ahmad, and two
other doctors as well as respondent Nos.3 to 6 were appointed there were only 7 vacancies of
Associate Professors out of which three posts have fallen in the share of promptees whereas 4
vacancies were allocated for direct recruits. Petitioners admittedly were not cleared for
promotion as Associate Professors by the Services and General Administration Department
vide its decision, dated 25th March, 1994 for the obvious reason that no vacancy for
'promotion quota was available. However, their names were placed on fit list which can also
be called as waiting list. So far respondents 3 to 6 are concerned they legally availed quota
meant for appointment through initial recruitment. Rule 8(2) of the Rules in clear terms lays
down that the seniority of the persons appointed by initial recruitment to the grade vis-a-vis
those appointed otherwise shall be determined with reference to the date of continuous
appointment to the grade; provided that if two dates are the same, the person appointed
otherwise shall rank senior to the persons appointed by initial recruitment; provided further
that inter se seniority of person belonging to the same. category will not be altered. Therefore
in view of this provision no difficulty is felt in concluding that petitioners were not appointed
as Associate Professors against a clear substantive vacancy and technically speaking their A
status at the best can be considered as that of ad hoc officers who have been allowed to work
till the availability of substantive vacancy. Being so they legitimately cannot compete in
seniority with those doctors who have been appointed against substantive vacancies
notwithstanding the fact whether through promotion or by the method of initial recruitment.
As in the inst4nt case Dr: Ejaz Ahmad, Dr. Akhtar Ali Tahir and Dr. Asif Sadiq Syed (not
party before the Court) were - cleared for promotion against available vacancies of
respondents Nos.3 to 6 who have been appointed through initial recruitment against clear
available substantive vacancies. Thus it is held that Rule 8(2) of the Rules determines the
seniority vis-a-vis the promotees arid appointees through initial recruitment if they are
holding substantive 19 vacancies but if their appointments have been made otherwise against
the posts which were not available, they will not be entitled to claim benefit of this Rule. The
judgments cited by the learned counsel for petitioners are not helpful to him, therefore, need
not to be discussed in detail because the petitioners have been adjudged to be the doctors who
were promoted as Associate Professors despite of the fact that no vacancy was available in
promotion quota.
7. Learned counsel for the petitioners pointed out that after promotion as Associate
Professors Dr. Ejaz Ahmad has expired, therefore, one of the petitioner can be
accommodated against the said substantive vacancy. Suffice it to observe that in this behalf it
is the duty of the concerned department to undertake necessary exercise under the Rules for
making promotion of Assistant Professors to Associate Professors after examining the
eligibility of each of the candidate expecting their promotion. Therefore, no further decision
is called for.
In view of above discussion, petition is dismissed and leave refused.
M.B.A./M-76/S Petition dismissed.