PLJ 2023 Lahore (Note) 39
Constitution of Pakistan, 1973--
----Art. 199--Appointment as medical officers--petitioners were acquiring qualification of masters of public health--4 tire Structure formula for promotion--Representations were rejected--Seniority list--Petitioners were not promoted at relevant time--Petitioners were not agitated orders of authority at relevant time--Petitioners were qualified and their cases were considered under aforesaid Rules but they were not promoted at relevant time--Petitioners neither challenged said orders nor agitated matter at said relevant time--Petitioners are at Sr. No. 94 and 86 of seniority list, their promotion is to be considered on their turn and promotion on account of acquiring higher qualification of Masters of Public Health being not covered under prevailing Rules of 2005 cannot be taken into account to promote petitioners out of turn--Petition dismissed. [Para 5 & 8] A & C
Claim of Promotion--
----Claim of promotion is not a vested ‘ right and all that a civil servant can claim, is to be considered for promotion--Applicable qualification and criteria for promotion shall be one which will be relevant at time of consideration for promotion and not qualification and criteria which was applicable when person was appointed. [Para 7] B
Ref. 2022 SCMR 1618, 2016 SCMR 1021, 2021 PLC (CS) 1450.
Mian Tariq Hussain, Advocate for Petitioners.
Rana Zain Tahir, Assistant Advocate General-Punjab for State.
Date of hearing: 5.3.2021.
PLJ 2023 Lahore (Note) 39
Present: Abid Aziz Sheikh, J.
Dr. MUHAMMAD IFTIKHAR etc.--Petitioners
versus
SECRETARY LOCAL GOVERNMENT & COMMUNITY DEVELOPMENT GOVT. OF PUNJAB, CIVIL SECRETARIAT
and 4 others--Respondents
W.P. No. 95731 of 2017, decided on 21.9.2022.
Order
In this writ petition, the petitioners have challenged the “4 tier structure formula” for promotion and seeking direction to promote the petitioners as per Punjab Local Councils Service’ (Appointment and Conditions of Service) Rules, 1983 (Rules of 1983). The petitioners have also challenged the order dated 15.08.2017 whereby their representation was declined.
2. Relevant facts are that Petitioners No. 1 and 2 were appointed as Medical Officers in the Health Functional Unit of Local Council Service in 1993 and 1994 respectively. The petitioners acquired the qualification of “Masters of Public Health” from University of Lahore and requested that their cases be considered for promotion. Consequently petitioners’ matter was dealt with by the concerned authority under Rules of 1983 but. they were not promoted and were required to ACRs to proceed further in the matter. In meanwhile, the 4 tier structure formula for promotion was adopted and after approval of the competent authority, the Health Functional Units created under the Rules of 1983 were declared dying cadre and petitioners were to be promoted in terms of the Punjab Local Government District Service (Tehsil/Town Municipal Administration Cadre) Rules, 2005 as amended on 21.04.2012(Rules of 2005). The petitioners being aggrieved filed representations, which were decided on 15.08.2017 and petitioners were informed that they stood at Serial No. 94 and 86 respectively in the seniority list, hence will be considered for promotion on their turn. The petitioners being aggrieved have filed this constitutional petition.
3. The learned counsel for the petitioners submits that the Rules of 2005 could not be applied to the petitioners retrospectively and their cases for promotion are not to be considered under Rules of 1983.
4. The learned counsel for the respondents on the other hand submits that Rules of 1983 have already been replaced by Rules of 2005 as amended on 21.04.2012, therefore, the petitioners’ case for promotion will be dealt with under the prevailing Rules.
5. Arguments heard. It is admitted position on record that petitioners were appointed as regular members of Health Functional Units in 1993-1994 and they had acquired the qualification of Masters of Public Health in year 2008, when Rules of 1983 were applicable and under said Rules, method for promotion from BS-17 to BS-18 was as under:
“By promotion on merit from amongst 6 senior most members of the service in the Functional Unit with at least 5 years experience in N.P.S. -17 seniority list being considered only in the case of officers of practically the same standard of merit.”
For academic qualifications, the candidate was also required post graduate diploma beside MBBS or equivalent qualification. No doubt, at the relevant time the petitioners were qualified and their cases were considered under the aforesaid Rules but they were not promoted at the relevant time. The petitioners admittedly neither challenged the said orders nor agitated the matter at the said relevant time. In meanwhile, the Health Functional Unit created under the Rules of 1983 was declared a dying cadre and it was decided that members of the Health Functional Units shall be promoted under the 4 tier structure in the ratio of 1:15:34:50 for BS-20, BS-19, BS-18 and BS-17 respectively and table-II was inserted after table-I in the Rules of 2005, under Rule 22-A of the Rules of 2005 vide amendment dated 21.04.2012. In Rules of 2005, the criteria for promotion to BS-18 is asunder:
“By promotion on the basis of seniority cum fitness from amongst the Medical Officers and Women Medical Officers having five years’ service in BS-17 in the. Functional Unit.”
6. The above Rules of 2005 show that promotion of Medical Officer from BS-17 to BS-18 will be considered on the basis of seniority cum fitness basis irrespective of their higher qualification because there is no special cadre provided in the Rules of 2005. In the circumstances, the .petitioners’ case cannot be considered for promotion under the Rules of 1983 but they are to be considered under Rules of 2005 as amended on 21.04.2012 for their promotion at this stage.
7. It is settled law that claim of promotion is not a vested right and all that a civil servant can claim, is to be considered for promotion. However, the applicable qualification and criteria for promotion shall be the one which will be relevant at the time of consideration for promotion and not the qualification and criteria which was applicable when the person was appointed. In this regard reliance is placed on “Kashif Aftab Ahmed Abbasi Versus Federation of Pakistan through Secretary Establishment Division, Islamabad” (2022 SCMR 1618), “Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others versus Hayat Hussain and others” (2016 SCMR 1021), and “Sikandar Hayat Maken Versus Federation of Pakistan through Secretary Establishment Divisions Government of Pakistan and others” (2021 PLC (CS) 1450).
8. Admittedly the petitioners are at Sr. No. 94 and 86 of the seniority list, therefore, their promotion is to be considered on their turn and promotion on account of acquiring higher qualification of Masters of Public Health being not covered under prevailing Rules of 2005 cannot be taken into account to promote the petitioners out of turn.
9. In view of above discussion, this petition being meritless is dismissed.
(Y.A.) Petition dismissed
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