IJAZ-UL-AHSAN, J.---These appeals by leave of the Court are directed against a judgment dated 26.1.2009 passed by the Punjab Service Tribunal, Lahore, whereby the appeals filed by the respondents were allowed and the order impugned before the Service Tribunal dated 25.8.2008 passed by the Secretary, Communication & Works Department, Government of the Punjab, Lahore, reverting them to their original ranks of Assistant Engineers was set aside to their extent. As a consequence, all the respondents were deemed to have been promoted as Executive Engineers on regular basis with effect from the respective dates on which they were promoted 'on officiating basis with all consequential benefits. It was further held that the condition of 'on officiating basis' contained in promotion orders of all the respondents shall stand deleted.
2. Leave to appeal was granted by this Court on 18.6.2009 to inter alia examine the question whether while granting relief to the respondents and deleting the condition of 'on officiating basis' the Service Tribunal exceeded its jurisdiction by itself promoting the respondents without waiting for the recommendations of the Departmental Promotion Committee (DPC).
3. Through this single judgment, we propose to decide the present appeals (Civil Appeals No, 420-L, 421-L & 423-L to 425-L of 2009) as common questions of law and facts are involved in all these appeals which arose out of a consolidated judgment dated 26.1.2009 passed by the learned Punjab Service Tribunal, Lahore.
3A. Briefly stated the facts necessary for adjudication of this lis are that the respondents having acquired the qualification of B.Sc. (Civil Engineering) joined government service as Assistant Engineers on different dates which are mentioned below against their names respectively. All the respondents successfully completed in-service training for Junior Engineers. They possessed all the requisite qualifications for promotion as Executive Engineers and were considered and approved for promotion as Executive Engineers 'on officiating basis' by the DPC on the dates mentioned against their names below. The respondents were accordingly promoted on 'officiating basis' despite the availability of regular vacancies. Four of the respondents served as Executive Engineers for more than a decade 'on officiating basis'. Subsequently, however, they were deferred for promotion as Executive Engineers on regular basis in various meetings of the DPC held between 1998-2007 on account of inquiries pending against them and incomplete ACRs,
4. While the respondents were still performing their duties as Executive Engineers, vide order dated 25.8.2008 they were reverted to their original ranks of Assistant Engineers on the alleged basis of incomplete service records and pending inquiries. They challenged the order dated 25.8.2008 before the Service Tribunal inter alia on the ground that the promotions of all the respondents were on regular basis within the meaning of Section 2(2) of Punjab Civil Servants Act, 1974. The condition, 'on officiating basis' as mentioned in the orders of their promotion was contrary to the spirit of Section 2(2) of the Act ibid, and was redundant and void. It was further pointed out that the long period of service as Executive Engineers in each case further confirmed that the promotions were not 'on officiating basis' and the vacancies against which they were promoted were not temporary.
Had that been the case, they could not have been allowed to continue for such long periods as Executive Engineers. They also took the stance that the pretext of pending inquiries/incomplete service record could not be used to revert them to their original ranks of Assistant Engineers by way of punishment.
5. Vide impugned judgment dated 26.1.2009, the Service Tribunal accepted the stance taken by the respondents in their appeals in terms noted in the opening paragraph of this judgment. The appellant-Department is aggrieved of the order and has approached this Court through the listed appeals.
6. Appearing on behalf of the appellant-Department, N the learned Additional Advocate General, Punjab, has argued that the respondents were promoted 'on officiating basis' in terms of Rule 13 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 [hereinafter to be referred as 'the Rules]. Under the said Rules, an officiating promotion does not confer any right of promotion on regular basis. He maintains that in terms of Rule 11 promotion 'on officiating basis' is liable to be terminated without notice as soon as a person becomes available for promotion on regular basis. In this regard, he has placed reliance on Muhammad Asif Chatha v. Chief Secretary, Government of Punjab (2015 SCM R 165). Therefore, he contends that the respondents were reverted to their original ranks as Assistant Engineers in accordance with law.
7. On the other hand, learned counsel for the respondents at the very outset has submitted that the judgment relied upon by the learned Law Officer is not attracted to the facts and circumstances of the cases in hand. He has contended that as opposed to Muhammad Asif Chatha's case ibid, the controversy before this Court is not whether the officiating promotions were made against permanent posts or whether the promotees were duly qualified and eligible for promotion or whether they had acquiesced to lower placement in the seniority list of Executive Engineers (XENs).
He points out that in the present is there is no denial of the fact that the respondents were promoted against permanent posts which were available at the relevant time. The respondents were also duly qualified and cleared by the DPC. He submits that interpretation of rule 13 of the ing officiating promotion is subject to limitations and safeguards that have been disregarded by the appellant-Department in the present cases. Therefore, he defends the impugned judgment and prays for the dismissal of these appeals.
8. Heard. Record perused.
9. Before examining the relevant provisions of law and the judgment impugned before us, it would be advantageous to set out in tabulated form some material dates and events in the respective careers of the respondents which are of relevance to resolve the present controversy. It may further be noted that Mr. Ashraf Hussain Bhutta, respondent in Civil Appeal No, 422-L of 2009 passed away during pendency of the appeal which having not been pressed was dismissed vide order dated 21.12.2015. The respondents in Civil Appeals No, 420-L, 424-L and 425-L of 2009 namely Muhammad Khalid Usmani, Khaliq Nawaz Niazi and Qazi Altaf Hussain stand retired from government service. We have asked the learned Law Officer whether he would like to press the appeals to the extent of the aforesaid respondents. He submits that in case these appeals are accepted, the principles of law laid down by this Court would affect the cases of the said respondents. The relevant data of all the respondents is given as follows:--- Sr.
No,Name Date of appoint- ment as Assistant EngineerDate of promotion as Executive Engineer (on officiating basis)Date of reversion to the original rankService as XEN 1 Khaliq Nawaz Niazi17.6.197614.6.198725.8.200821 years (retired)
2 Qazi Altaf Hussain8.11.1976 16.9.198725.8.200821 years (retired)
3 Zeeshan Butt23.12.198015.7.1996 25.8:200812 years_..
(in service)
4 Sajid 17.7.198322.2.200125.8.20087 years Tanvir Khan (in service)
5 Muhammad21.3.198314.10.200525.8.20083 years Khalid (retired) Usmani
10. From the record attached with these appeals and subsequently submitted by the appellant- Department through CMA. No, 2972 of 2015, the following facts are admitted by both sides:---
(i) All the respondents were cleared for promotion as Executive Engineers by duly convened DPCs.
Minutes of the meetings of such Conunittees have been placed on record.
(ii) All the respondents were promoted against permanent posts which were available at the relevant time and had not fallen vacant as a result of deputation, posting outside cadre, leave, suspension or appointment on acting charge basis of the incumbents or reserved under the rules to be filled by transfer as visualized under rule 13 of the Rules.
(iii) All the respondents possessed the requisite qualification for promotion as Executive Engineers and were promoted as such in the prescribed manner.
' On the basis of the above admitted facts, the issue requiring determination is whether or not the respondents were promoted as Executive Engineers on regular basis and whether the condition of promotion 'on officiating basis' was redundant and/or imposed for considerations not supported by the law.
11.In order to address the aforesaid question, it would be appropriate to examine the relevant provisions of the Act and the Rules. Section 2(2) of the Act provides as follows:--- "(2) For the purpose of this Act, an appointment whether by promotion or otherwise, shall be deemed to have been made on regular basis if it is made in the prescribed manner."
12. The minimum qualification and experience in respect of Executive Engineers of the Communication and Works Department has been laid down in the Punjab Communication and Works Department (Engineering Posts Qualification and Conditions of Recruitment) Rules, 1985 which provide as follows:- "By promotion on the basis of seniority-cum-fitness from amongst Assistant Engineers with at least five years service as such who possess qualification prescribed for initial recruitment to the post of Assistant Engineers, who have passed departmental professional examination prescribed in the PWD Code and or registered with Pakistan Engineering Council as professional Engineers under Pakistan Engineering Council Act, 1976."
13. It has not been denied that all respondents met the aforesaid criteria of qualification and experience on the date on which they were promoted on 'officiating basis'. The question that needs to be examined is whether despite fulfilling the criteria of minimum qualification and experience mentioned above, the respondents could have been promoted 'on officiating basis' instead of regular basis. In order to answer this question, it is necessary to analyze provisions of Rule 13 of the Rules, which deal with the subject of 'officiating basis'. For ease of reference, Rule 13 of the Rules is reproduced below:- "13. Appointment on officiating basis.--- (i) Where a post falls vacant as a result of deputation, posting outside cadre, ledve, suspension or appointment on acting-charge basis of the (regular) incumbent or is reserved under the rules to be filled by transfer, if none is available for transfer, the appointing authority may make appointment by promotion against such post on officiating basis: Provided that a post reserved for regular promotion, on deferment of a civil servant due to any reason, may be filled by promotion on officiating basis.
(ii) No person shall be promoted on officiating basis unless he possesses the qualifications and experience prescribed for the post and his promotion as such is approved by the chairman of the appropriate selection authority.
(iii) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(iv) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion."
14. It is clear and obvious from a perusal of Rule 13(i) ibid that an appointment by promotion 'on officiating basis' can be made against posts which fall vacant as a result of the circumstances mentioned in the said Rule. We have specifically asked the learned Law Officer if the posts against which the respondents were promoted had fallen vacant as a result of any of the situations mentioned in rule 13(i) of the Rules. He has frankly conceded that this was not the case, and that the respondents were promoted against regular vacancies which had been available in the ordinary course of events. It is also evident from the record that the respondents possessed the qualification and experience required for promotion from the post of Assistant Engineers to Executive Engineers. In this context, reference may be usefully made to Jafar Ali Akhtar Yousafzai v.
Islamic Republic of Pakistan (PLD 1970 Quetta 115) in which Muhammad Afzal Zullah, J. Observed as follows:--- "When continuous officiation is not specifically authorized by any law and the Government/ competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra-disciplinary powers or for other reasons including those of inefficiency and negligence, e.g. Failure on the part of the relevant authorities to make the rules in time, that the prefix `officiating' is continued to be used with the appointment and in some case for years together. In proper cases, therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it.
' The power exercisable by the Government and/or the competent authority vis-a-vis an officiating appointee to terminate his service or to revert him to a lower post is concomitant and goes alongwith the very important pre-requisite that the condition of officiation was lawfully attached initially and was lawfully continued subsequently. As soon as it is to be found that the condition was either unlawful or was continued in an unlawful manner, this would directly adversely affect the said power. Therefore, the lawful exercise of power is dependent upon the existence of a condition which is lawful. The question as to whether or not there is some such existing condition is, according to the Supreme Court view, justiciable. Depending upon the circumstances of each case, it will have to be determined whether or not such-like condition was validly attached and continued with the post or appointment. The decision on this question cannot be left entirely to the discretion of the Government and/or the other competent authority. Thus whenever they will commit some mistake in this behalf and the matter, is properly brought before the Courts unless they are specifically barred by an existing enforceable law, they would decide upon the validity of the orders so passed.
' The authorities, it appears; whenever want to retain a power of removal, reduction in rank, etc. Although not otherwise empowered to do so under a law or a rule having the force of law, attached or continue to apply some conditions which are not, or do not remain, strictly valid and Constitutional. The Court, cannot, therefore, permit the Government or other authorities to retain extra-Constitutional power of arbitrary termination of service so as to defeat the Constitutional guarantees available to civil servants, by doing what is not permissible by law, and will not give effect such conditions."
15. As is evident from the tabulation given in the earlier part of this judgment, we have also noted with concern that the respondents had served as Executive Engineers for many years; two of them for 21 years each and the two others for 12 years each. The concept of officiating promotion of a civil servant in terms of rule 13 of the Rules is obviously a stopgap arrangement where posts become available in circumstances specified in Rule 13(i) of the Rules and persons eligible for regular promotion are not available. This is why Rule 13(iii) of the Rules provides that an officiating promotion shall not confer any right of promotion on regular basis and shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
16. The record reflects three facts, (i) The respondents were eligible for regular promotion; (ii) they were promoted against regular posts; and (iii) their reversion was not occasioned on account of person(s) eligible for regular promotion becoming available. The record further indicates that the DPCs held between 2001-2007 relied on alleged inquiries and incomplete ACRs of the respondents which related to the period of their service as Executive Engineers. We have confronted the learned Law Officer to justify on the basis of the law and rules as to how events occurring after the respondents had been promoted as Executive Engineers by a DPC could be used to revert them to their initial posts, and whether a second DPC is provided by law after a civil servant has been promoted on the recommendations of an earlier DPC. He has attempted to argue that the second DPC is required for regular promotion of the respondents. However, this argument is neither supported by the record nor the law or the Rules. We have already held that the respondents were eligible, met the criteria provided in the relevant Rules, and were promoted against regular posts on the basis of recommendations of a duly convened DPC. As such, for all intents and purposes, they were promoted on regular basis and did not require recommendations of the subsequent DPCs for the "regularization" of their promotion.
17. Even otherwise, once the respondents had been promoted after fulfilment of all legal and procedural requirements, subsequent events and allegations of pending inquiries or incomplete service record had become irrelevant. These matters may possibly be taken into consideration while processing their cases for further promotion (in case of those who are still in service) from Executive Engineers to Superintending Engineers, but cannot be used to furnish basis for reversion to the posts of Assistant Engineers after they had served as Executive Engineers for extended periods of time, including 21 years in two of the cases. The reversion of the respondents, in these circumstances, has appeared to us to be unjust, unfair and inequitable besides being unlawful.
18. There is no denial of the fact that an Assistant Engineer, in the ordinary course of events and provided he or she fulfills the requirements of law, is promoted as an Executive Engineer, then as Superintending Engineer, and thereafter as a Chief Engineer. Neither the Act nor the Rules provide that an Assistant Engineer would first be promoted on officiating basis, his/her performance would be observed and monitored for some years and then if his/her performance is found upto the mark he/she may be promoted on regular basis, for which he/she will have to seek the recommendation of another DPC. Since the law provides for only one DPC for promotion as an Executive Engineer, the subsequent DPCs convened by the appellant-department to consider the respondents for regular promotion were unwarranted and devoid of any lawful basis.
19. The learned Additional Advocate General, Punjab, has informed us that vide notification (SOR-III (S&GAD.1/25- 2002), dated 22.3.2007, the Government of the Punjab has amended the Rules by adding a proviso to rule 13(i) thereof in the following terms:--- "Provided that a post reserved for regular promotion, on deferment of a civil servant due to any reason, may be filled by promotion on officiating basis."
' We are unable to see how the above amendment is of any help to the Appellant. Even otherwise, as discussed above, the respondents had already been promoted prior to the afore-noted amendment in the rules. Therefore, the amendment would not come in their way.
20. The record produced before us including the working paper produced before the DPC held on 11.8.2008 shows that the sanctioned strength of XENs in the appellant-Department at the relevant time was 151;__ out of which 112 were working on regular basis and 47 on officiating basis. It is also evident that 39 Executive Engineers' posts were available for regular promotion. This clearly shows that 39 Executive Engineers were working on officiating basis against regular vacancies. We have asked the learned Law Officer to justify such a practice. He has submitted that this modus operandi is adopted by most Government Departments to ensure that corruption and unprofessional conduct is kept under check. We are afraid the justification canvassed before us is not only unsupported by the law or the rules but also lends ample support to the observations made in the Jafar Ali Akhtar's case reproduced above. Further, keeping civil servants on officiating positions for such long periods is clearly violative of the law and the rules. Reference in this regard may usefully be made to Sarwar All Khan v. Chief Secretary to Government of Sindh (1994 PLC (CS) 411), Punjab Workers' Welfare Board v. Mehr Din (2007 SCM R 13), Federation of Pakistan v. Amir Zaman Shinwari (2008 SCM R 1138) and Government of Punjab v. Sameena Parveen (2009 SCM R 1).
21. During hearing of these appeals, we have noted with concern that the device of officiating promotion, ad hoc promotion/appointment or temporary appointment etc. Is used by Government Departments to keep civil servants under their influence by hanging the proverbial sword of Damocles over their heads (of promotion 'on officiating basis' liable to reversion). This is a constant source of insecurity, uncertainty and anxiety for the concerned civil servants for motives which are all too obvious. Such practices must be seriously discouraged and stopped in the interest of transparency, certainty and predictability, which are hallmarks of a system of good governance. As observed in Zahid Akhtar v. Government of Punjab (PLD 1995 SC 530) "a tamed subservient bureaucracy can neither be helpful to the Government nor it is expected to inspire public confidence in the administration".
22. This issue was earlier examined by this Court in Federation of Pakistan v. Rais Khan (1993 SCMR 609) and it was held that "it is common knowledge that in spite of institution of ad hoc appointments unfortunately being deeply entrenched in our service structure and the period of ad hoc service in most cases running into several years like the case of the respondent (8 years' ad hoc service in BPS-17), ad hoc appointees are considered to have hardly any rights as opposed to regular appointees though both types of employees may be entrusted with identical responsibilities and discharging similar duties. Ad hoc appointments belong to the family of "officiating", "temporary" and "until further orders" appointments. In Jafar Ali Akhtar Yousafzai v.
Islamic Republic of Pakistan (PLD 1970 Quetta 115) it was observed that when continuous officiation is not specifically authorized by any law and the Government/competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra-disciplinary powers or for other reasons including those of inefficiency and negligence, e.g. Failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some case for years together. And in proper cases, therefore, Courts (at that time Service Tribunals had not been set up) are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it." In Pakistan Railways v. Zafarullah (1997 SCMR 1730), this Court observed that, "appointments on current or acting charge basis are contemplated under the instructions as well as the Rules for a short duration as a stop-gap arrangement in cases where the posts are to be filled by initial appointments. Therefore, continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of instructions and the rules. It is, therefore, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should 'not continue indefinitely and every effort should be made ,to fill posts through regular appointments in shortest possible time."
23. We are of the view that promotion on an officiating basis should be resorted to only in the circumstances visualized in rule 13(i) of the Rules. Further, the spirit of such action, a purely temporary and stopgap arrangement for a limited period, should be kept in mind, In no circumstance should such a stopgap arrangement be allowed to continue for years on end. On our query, we have been informed that the usual period of probation provided by the law for regular posts by way of direct appointments is a maximum of two years. It would, therefore, be just and fair if the said timeframe is followed in case of 'promotion on officiating basis also, unless there are extraordinary circumstances necessitating extension of such period further for a limited duration, and such extraordinary circumstances must be reduced in writing by the competent authority directing such extension. We may, however, emphasize that such extensions cannot be undertaken in a routine and thoughtless manner and can only be made where circumstances spelt out in rule 13 ibid are in existence. In addition, if the law provides a specified period of probation for appointments against regular posts, we do not see any reason why a free hand should be given to Government Departments to undertake promotions on officiating basis for unlimited and unspecified periods.
24. We have gone through Muhammad Asif Chatha v. Chief Secretary, Government of Punjab (2015 SCM R 165) which has been cited by the learned Additional Advocate General, Punjab. The said judgment was delivered by a learned Bench of which one of us (Umar Ata Bandial, J.) was a member. We find that the said judgment has been rendered in a different set of facts, is clearly distinguishable and not relevant to the facts and circumstances of the present lis.
25. In view of the above, we agree with the findings recorded by the Service Tribunal to the effect that the promotions of the respondents as Executive Engineers had a permanent character notwithstanding the prefix 'on officiating basis' which in the specific facts and circumstances of the present case was redundant. In returning the said finding the learned Punjab Service Tribunal did not in any manner exceed its jurisdiction.
26. The learned Law Officer has not been able to convince us that the impugned judgment rendered by the Service Tribunal suffers from any legal, factual or jurisdictional error or flaw that may call for interference by this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973.
27. Consequently, the impugned order of the Service Tribunal is affirmed/upheld and the appeals are dismissed. There shall be no order as to costs.