Mahmood Salim Mahmood, Member--Appellant Muhammad Ashraf was serving under the respondents as Joint Estate Officer (BS-17) w.e.f 31.5.1988. He is aggrieved by the impugned order dated 5.9,2011 whereby Respondent No, 3 who was DMG Officer has been posted as Estate Officer (BS-19) in the respondent-department on acting charge basis instead of considering him for regular promotion. He submitted a departmental appeal dated 1.10.2011 which has not been responded during the statutory period. Hence this appeal.
2. Appellant stated that according to Recruitment Rules notified vide SRO No, 270(1)/2008 dated 10.3.2008 the method of appointment to the post of Estate Officer in BS-19 was 100% by promotion.
The person eligible to such promotion was Additional Estate Officer in BS-18 and the conditions of eligibility were 12 years service in BS-17 and above or seven years service in BS-18. It is contended by the appellant that being a senior most officer having 13 years experience of Estate Management as Joint Estate Officer (BS-17) he was fully eligible for consideration of promotion to the next higher rank but he was deprived of the said right by making appointment on acting charge basis before decision of DPC which is clear violation of the Recruitment Rules and if the posts of Addl. Estate Officer and Estate Officer will be filled on deputation basis, his promotion to the post of Addl. Estate Officer (BS-18) or Estate Officer (BS-19) would be blocked. It is further contended by the appellant that he had earlier filed Appeal No, 136(R)CS/2009 against another officer of BS-18 namely Syed Muhammad Ali Shah was posted as Estate Officer (BS-19) but he was transferred back before decision of the Tribunal and the appeal was disposed of vide order dated 9.3.2010 with a direction to the respondents to abide by the rules in future. But the respondents are not prepared to comply with the order of the Tribunal and appointed another DMG Officer on acting charge basis.
Therefore, the said impugned appointment order may be set aside.
3. The learned counsel for official respondents made a statement that he does not, want to add to the parawise comments earlier submitted by him because the same are not received by him. directly. However, the learned counsel for the respondents has vehemently opposed the appeal by stating that the appellant is not directly affected to the impugned order dated 5.9.2011 as he is at serial No, 2 of the seniority list of officers of Estate Office Management, therefore, the appellant has no cause of action being at Serial No, 2.
4. Mr. Muhammad Yanoor Khattak who is Respondent No, 4 in this appeal has appeared in person and states that he has no objection if the instant appeal is accepted by the Tribunal because being a senior most Addl. Estate Officer (BS-18) he is also aggrieved by the posting order of Respondent No, 3 as Estate Officer (BS-19) on acting charge basis. It is also added by him that being a senior most in the seniority list, his consideration for promotion against the post of Estate Officer (BS-19) has also been affected by appointing Respondent No, 3 as Estate Officer (BS-19) w.e.f 5.9.2011 as he is going to be retired on superannuation on 1.1.2013.
5. Several Notices were sent to Respondent No, 3 for submitting his comments in this appeal but he has not submitted his reply. He was, therefore, proceeded against ex-parte vide order of the Tribunal dated 18.10.2012.
6. We have heard the appellant and the learned counsel for the respondents. We have also perused the record.
7. It is an admitted fact that according to Recruitment Rules notified vide SRO No, 270(1)/2008 dated 10.3.2008 the method of appointment to the posts of Addl. Estate Officer (BS-18) and Estate Officer (BS-19) is 100% by promotion. However, if no suitable/eligible person is available for promotion the said posts shall be filled by initial appointment or by transfer. Thus, the respondents have not raised any objection on the eligibility of the appellant as well as private Respondent No, 4 which could be a hurdle in consideration for promotion to the post of Estate Officer (BS-19).
Furthermore, when the Recruitment Rules are made, the respondents would be bound to comply with the same and any appointment in violation of such Rules would render them as nullities. Now it is well settled that no recruitment should be permitted to be made through back door as the Apex Court has also held in a number of cases that such appointments made in violation of the. recruitment rules is an illegal appointment, terming such appointments as nullity in the eye of law.
Therefore, we feel that appointment of private Respondent No, 3 as Estate Officer (US-19) vide impugned order dated 5.9.2011 on acting charge basis was in violation of aforementioned Recruitment Rules and also contrary to the order of the Tribunal dated 9.3.2010 passed in Appeal No, 136(R)CS/2009 in which the respondents were specifically directed to abide by the rules in making appointment to the said post.
8. Foregoing in view, we accept the appeal and the impugned order dated 5.9.2011 is set aside.. The respondents are directed to put up the case of the appellant alongwith private Respondent No, 4 before the DPC for consideration of promotion in accordance with law and rules. The process shall be completed within a period of two months from the date a copy of the judgment is received in the office of respondents.
9. There shall be no order as to costs.
10. Parties shall be informed accordingly.