' A.
0. Raziur RAHMAN (MEMBER).-This is an application for grant of stay order in Appeal No, 139 (L)/81, which was admitted for hearing on 24th December.
1981.
2. The appellant has submitted that, after the admission of the appeal for hearing and issue of notice to the parties, Respondent No, 2, namely, the Agricultural Census Commissioner, has initiated the case for promoting Respondent No, 10, Mr. Muhammad Zafar Iqbal, to the next higher post. This, she has alleged, has been done with the mala fide intention of defeating the object of the appeal pending before the Tribunal and prejudicing her rights while creating unduly favourable condition for the said Respondent.
3. Appearing on behalf of respondents 1 and 2, alongwith the departmental representative, the learned counsel for the State, Mr. S. M. Shahudul Huque, has made some oral submissions opposing the application. The gist of his contention is that the application is infructuous, because the Departmental Promotion Committee has already, in its meeting held on 2nd February, 1982, selected respondent No, 10 for promotion and this selection has also been approved by the Minister on 28th February, 1982, whereas the present application has been submitted by the petitioner much later, that is on 11th March, 1982. According to him, since the application has been filed after the event it intends to prevent, there is nothing that can be done about it. In support of his stand, the learned counsel for the State has further informed the Tribunal that on merit the case of the appellant for seniority over respondent No, 10 is weak, since she was promoted from Grade 10 to Grade 16 on 23rd August, 1976, whereas, on the same date, respondent No, 10 was promoted from Grade 11 to Grade 16 and, therefore, had a right to be accorded seniority over the appellant/petitioner and consequently, also to be promoted to the next higher grade.
4. It is clear to us from the circumstances of the case, as reported by the appellant/petitioner and corroborated by the learned counsel for the State, that, after the issue of notice in the appeal case, the Department have taken certain actions which clearly indicate that they want to promote respondent No, 10 on the basis of a seniority which is disputed and pending review by this Tribunal.
If the steps taken culminate in the promotion of respondent No, 10 before the disposal of the appeal, it would clearly involve confirmation of the seniority which is already in dispute. This would result in frustrating the object of the appeal and avoiding the process of this Tribunal. We, therefore, have no option but to accept the prayer for issue of stay order in the interest of justice and judicial propriety.
5. Frankly peaking, we find no justification for the department taking steps to promote respondent No,.. 10 while the petitioner's appeal on the point of seniority is still pending. At the best it can only be characterized as an act of indecent haste. We find much less merit in the argument of the learned counsel for the State, since that the petitioner has prayed for restraining respondents Nos. 1 and 2 from holding the Departmental Promotion Committee meeting and since the meeting has already been held earlier, the prayer has become infructuous. For one thing, the prayer in the stay order application is not for restraining the respondents mentioned from holding the meeting of the Departmental Promotion Committee but, as clearly stated, from holding "departmental selection" since the departmental selection has not yet been finalized, the prayer is not infructuous. But, even if the prayer were for restraining the said respondents from holding the meeting of the Departmental Promotion Committee, which has already been held, we would have considered it sufficient justification for issuing a stay order, because the very holding of the said meeting indicating that the respondents in question were taking actions intended to by-pass the proceedings pending before the Tribunal and preventing it with a fait accompki a development which cannot be conducive either to the ends of justice or to the observance of the regard that parties to ease, before this Tribunal are expected to render.
6. The learned counsel for the State's pointed reference to the fact that the promotion of respondent No, 10 has been approved by the Minister is also irrelevant and uncalled for. The legal position is that the competent authority to make promotion in the instant case is the Establishment Secretary and not the Minister ; therefore the approval of the Minister is neither here nor there.
7. In view of the above, it is ordered that the departmental/ competent authority is restrained from making promotion of respondent No, 10 during the pendency of the appeal. However, if, for administrative reasons, it is absolutely necessary to promote respondent No, 10, it should be strictly indicated in the order of promotion that the promotion shall be subject to the decision of the appeal pending before this Tribunal and would not affect the right of the appellant if she finally succeeds.