Dr. SHUJA-UD-DIN KHAN vs ISLAMIC REPUBLIC OF PAKISTAN And Others

ORDER

ZIA MAHMOOD MIRZA, J.--Petitioner seeks leave to appeal against the judgment of the Federal Service Tribunal dated 31-10-1995 disallowing his claim for antedating his. Promotion from 27-12- 1994 to 20-5-1991.

2. Petitioner joined Pakistan Railways as Medical Officer (B-17) on ad hoc basis with effect from 20- 4-1986. He was later appointed as Medical Officer on regular basis vide Notification dated 12-11- 1989, after his selection by the Federal Public Service Commission. He was posted as Eye-Specialist (BS-18) but in his own pay scale vide Notification dated 1-12-1990, pending clearance by D.P.C.

Against the post of Eye-Specialist fallen vacant in Mughalpura Hospital. He worked against the higher post of Eye-Specialist up to 27-12-1994 when he was promoted to that post on regular basis vide Notification dated 5-1-1995. He, however, claimed that he was entitled to be promoted as Eye- Specialist with effect from 20-5-1991 when he completed five years' service as Medical Officer (B- 17). He also claimed the pay of the post of Eye-Specialist with effect from 2-12-1990. Receiving no response from the Departmental Authorities he preferred an appeal before the Service Tribunal.

3. The Tribunal allowed the petitioner's claim of pay of the higher post but declined his request for promotion to B-18 on completion of five years service holding that "filling of the post lay within the discretion of concerned authorities depending upon the expediency of service." Claim of the petitioner was also found to be the-barred as he failed to agitate it when he had completed five years service and when the posts were advertised and appointments of respondents made.

4. We have heard the learned counsel for the petitioner as also the learned counsel for the caveators. The former has contended that according to the rules governing the appointment to the posts in BPS-17 and above in the Medical Department of Pakistan Railways, posts of Eye-Specialist fall in specialist cadre; 50% of these posts are to be filled in by promotion and 50% through direct recruitment. It is pointed out by the learned counsel that according to the instructions contained in the ESTACODE, 1989 (at page 286) where number of available posts is odd and not equally divided, the weight age is to be given to promotion quota. It is further pointed out that appointments to departmental quota are to be made first and the posts reserved for direct recruitment are to be filled later. According to the learned counsel, there were three posts of Eye-Specialist (B-18) available in the Medical Department of Pakistan Railways, out of which to posts were required to be filled by departmental promotion. The authorities, however, proceeded to appoint respondents Nos.

5 and 6 through direct recruitment without even considering the case of the petitioner who at the relevant the was eligible for promotion. The procedure adopted by the authorities, in the submission of the learned counsel was wholly illegal.

5. Learned counsel appearing for respondents Nos. 4 and 5 was unable to controvert the a forenoted factual and legal position canvassed by the learned counsel for the petitioner. He, however, vehemently contended that the petitioner was not entitled as of right to be promoted as Eye-Specialist on the date he completed five years service as the promotion involves adjudging fitness and suitability of a candidate. Learned counsel also supported the finding of the learned Tribunal regarding the claim of the petitioner being the-barred.

6. In view of the contentions raised by the learned counsel, we grant leave to appeal in this case.