' ABDUR RASHID (MEMBER).-The appellant, Nasir Hassan was appointed as temporary Lower Division Clerk on 5th November, 1962 in the Directorate of Civil Defence as it was then known before being re-designated as Directorate General). He remained L. D. C. From 5th November, 1962 to 8th January, 1964 and was promoted U. D. C. On 9th January, 1964. He remained U. D. C. Up to 30th October, 1964. He was appointed steno-typist on 31st October, 1964 and remained so employed till 27th September, 1967 when he reverted as U. D. C. He was promoted as Assistant on 18th June, 19.68.
Vide Establishment 0. M. No, 1-34/65. F11, dated 22nd June, 1972 para. 1 (ii), the temporary employees appointed to the different ministerial grades on or before 31st December, 1964 were exempted from the post entry Ministerial Services Examination to be conducted by the F. P. S. C. By virtue of this exemption, the appellant was confirmed as L. D. C. With effect from 15th September, 1972. He was also confirmed as Upper Division Clerk and Assistant as departmental promotee, with effect from 16th September, 1972 and 17th September, 1972 respectively. These three confirmations were notified under the signatures of the Director-General, Civil Defence, vide Office Order No, 13, dated 27th February, 1973.
2. The Directorate General of Civil Defence recruited a temporary Assistant, Ghulam Hussain (respondent No, 4) with effect from 10th December, 1966. Ghulam Hussain happened to be an Army Havildar. He was only a matriculate whereas the minimum educational qualification for the employment of direct entrants to the post of Assistant was graduation. The said Ghulam Hussain was, therefore, initially not qualified for the post and yet he was recruited in sheer disregard of the orders on the subject. When, on 7th August, 1973 the said Ghulam Hussain (respondent No, 4) was promoted as Administrative Officer, the appellant challenged this promotion on two grounds. First, Ghulam Hussain, (respondent No, 4) was not qualified to be retained as Assistant (being a matriculate only) and second he had not been confirmed as Assistant, for which he was, in any case, not qualified. On the other hand, claimed the appellant, he was confirmed Assistant and being senior to Ghulam Hussain had a prior right to be considered as Administrative Officer, and not respondent No 4. A representation to this effect was submitted by the appellant to the Director- General, Civil Defence (respondent No, 3) on 20th March, 1974.
' Instead of redressing the grievance of the appellant, the D. G., Civil Defence deconfirmed the appellant on the representation of Ghulam Hussain (respondent No, 4) and then circulated a seniority list. This list, too, was challenged by the appellant, but, disregarding this challenge, the D.
G., Civil Defence confirmed Ghulam Hussain as Assistant with effect from 15th September, 1972 (giving him two days' seniority over the appellant) and showed him as No, 1 in the seniority list published vide Office Order No, 56, dated 5th June, 1974. The appellant was shown as No, 2 and reconfirmed with effect from the same old dates. This hurried play of legalizing an act of confirming Ghulam Hussain whose initial recruitment was irregular, appeared to be a strange demonstration of favouritism to say the least.
4. The appellant was promoted Superintendent (Grade-14) with effect from 1st June, 1974 vide Office Order No, 108 dated 17th October, 1974.
5. On a reference being made by the Directorate General, Civil Defence vide their 0. M. No, 1/14/72- DCD(A), dated 20th June, 1975 as to the confirmation of ministerial staff, the Establishment Division laid down the following policy, vide their 0. M. No, F. 6/9175 F. II, dated 30th July, 1975 :- "(i) Academic qualification for recruitment to the post of Assistant in Federal Secretariat and its Attached Departments has been prescribed as B. A. ; therefore, a Matriculate cannot be recruited as Assistant.
(ii) A Matriculate person who has been promoted as Assistant/Stenographer on a regular basis in accordance with the prescribed method of appointment can be confirmed as such.
(iii) So long as a departmental candidate fit for the post is available for promotion, it is not in order to fill the post by direct recruitment."
6. The appellant was promoted as Temporary Administrative Officer (Grade 16) by the D P C, vide Notification No, 17/8/73-D C D (A), dated 23rd January, 1976. He was posted in the Civil Defence Training School, Lahore. The appellant, however, did not assume appointment at Lahore, on the plea that by so doing he would have gone on the seniority list of an attached department and would have severed his links with the Directorate General, Civil Defence, which he was not prepared to do. Subsequently, an appointment of the Administrative Officer fell vacant in the Directorate General, Civil Defence itself, which the appellant assumed on 2nd March, 1976 (afternoon) vide Gazatte Notification No, 17/8/73-D C D, (C A), dated 6th March, 1976.
7. Muhammad Usman (respondent No, 5) was promoted as Administrative Officer with effect from 1st January, 1975 in the Academy (a subordinate office). Though actually junior to the appellant, respondent No, 5 (Muhammad Usman) was erroneously made senior because his promotion as Administrative Officer came earlier than the appellant. Similarly, M. Islam Malik (respondent No, 6) was promoted as Administrative Officer in the Civil Defence Training School, Karachi with effect from 28th January, 1976. Subsequently, he was transferred back to the Directorate General, Civil Defence as Administrative Officer with effect from 14th July, 1976. In both these cases, respondents Nos. 5 and 6 were promoted in subordinate offices and were according to rules, to be struck off the seniority list of the Directorate General, Civil Defence but this was not done and the appellant was shown junior to both of them which was against the rules..
8. On 29th December, 1976, the Director-General, Civil Defence circulated a combined provisional seniority list, of officers and instructional staff of the Directorate General as well as the Civil Defence Training Institutions, wherein the appellant was shown junior to respondents No, 4 (Ghulam Hussain) No, 5 (Muhammad Usman) and No, 6 (M. Islam Malik) in the grade of Administrative Officer. The appellant challenged this seniority list, but nothing was done by Director-General, Civil, Defence to redress the wrong. Instead, he issued a final seniority list of officers on 13th July, 1978, keeping the appellant junior to respondents 4 to 6. This list, according to the appellant, was not circulated to him. However, he preferred an appeal to the Secretary, Interior Division (respondent No, 2) on 27th July, 1978 against this seniority list. As a result of this appeal, the appellant was informed by the D. G., Civil Defence on 13th September, 1978 that the matter had been referred to the Establishment Secretary (respondent No, 1) and further action would follow as a result of advice therefrom.
9. The Establishment Division (respondent No, 1), vide letter No, 1/ 12/(1) 78-F, II, dated 29th July, 1979 ruled that :
(a) the appointment of Ghulam Hussain (respondent No, 4) was irregular ; and
(b) the seniority of the Attached Departments and Subordinate Offices is always maintained separately.
' The said letter of the Establishment Division, dated 29th July, 1979 is reproduced below in full: - "No, 1/12/(1)/(78)-F, II Government of Pakistan ' Cabinet Secretariat, Establishment Division ' Rawalpindi, the 29th July, 1979.
' Office Memorandum ' Subject -Representation of Mr. Nasir Hassan, Officiating Administrative Officer (Now Reverted as Officiating Superintendent, Grade-14, with effect from 14th May, 1979) Regarding Re-Fixation of his Seniority vis-a-vis and its Sub-Offices.
' The undersigned is directed to refer to the correspondence resting with, Directorate General Civil Defence's 0. M. No, 1/18/78-Admn., dated the 1st June, 1979 on the above subject and to say that the representations made by Mr.. Nasir Hassan has been examined in the light 'of the comments furnished by Directorate General, Civil Defence and record provided by them. It has been observed that the initial appointment of Mr. Ghulam Hussain as Assistant in the Civil Defence Directorate is irregular due to the following :-
(a) He cannot be treated as on secondment from Army and subsequently absorbed in the Directorate General, Civil Defence, as no such mention has been made in the offer of appointment or the Office Order No, 195dated 21st December, 1966. Moreover, neither the prescribed procedure for the secondment of the officers from the Army has been followed nor the post of Have/ Clerk has been proved to be equal to that of Assistant.
(b) His appointment cannot be termed as against promotion quota as he did not hold the post of in the Department of Civil Defence before his appointment as Assistant.
(c) His appointment as Assistant cannot be considered as appointment on transfer because he was not holding the post of Assistant elsewhere in the secretariat or its Attached Departments.
(d) He was also not eligible for direct recruitment as he was lacking the prescribed minimum educational qualifications for the post of Assistant and that prior to 20th November, 1973 recruitment in the Ministries/Divisions/Attached Departments was made through the F. P. S. C.
3. The promotion of Mr. Ghulam Hussain to the post of Administrative Officer is also irregular due to the following reasons :--
(a) He was irregularly appointed as. Assistant.
(b) No recruitment rules for the post of Administrative Officer duly approved, by the Establishment Division were existing on 28th September, 1973, the date on which he was recommended by the D.
P. C. For promotion.
(c) The D. P. C. Constituted on 14th January, 1972 was not competent to make recommendations on 28th September, 1973, in view of the fact that the old D. P. Cs. Ceased functioning upon the introduction of the Administrative Reforms and new D. P. Cs. Were required to be constituted with the approval of the Establishment Division.
(d) The D. P. Cs. Are required to record reasons why a particular official is considered more suitable for promotion as compared to other eligible candidates. In the present case, the D. P. C. Had not followed the prescribed procedure.
4. Officiating appointments/promotions are made as a stop-gap arrangement, but an official cannot be promoted on officiating basis unless he fulfils the conditions for promotion laid down in the Recruitment Rules. The officiating promotions of those who do not fulfil the requisite qualifications, experience, etc., required for this post may cause undue hardships to other deserving candidates and such action may be taken to undo the wrong action, if any
5. The seniority in the Attached Departments and Subordinate offices is always maintained separately. The contention of the Directorate General that the seniority of Administrative Officers in the Directorate General and Subordinate Offices is maintained jointly as they are recruited on all Pakistan basis does not hold well. If this principle is accepted, then the seniority of all officials in Grade 3-15 who are working in offices which serve the whole of Pakistan will have to be maintained jointly.
6. The responsibility for committing the above irregularities may kindly be fixed and necessary action taken against the officer/officers concerned tinder intimation to the Establishment Division.
(Sd.)
(REHMAT ELAHI), Deputy Secretary ' The Director-General, ' Civil Defence, ' Islamabad."
' The D. G. Civil Defence (respondent No 3), however, disregarded the contents of the above- mentioned letter and instead, ruled that the seniority of the appellant, as fixed earlier, could not be altered. Immediately thereafter, the appellant came to the Tribunal for relief on the following grounds :-
(a) The orders of the D. G. Civil Defence are set aside in the light of Establishment Division ruling of 29th July, 1979.
(b) Those responsible for this gross injustice be brought to book in the Directorate General of Civil Defence, as directed by. The Establishment Division.
10. The learned State Counsel conceded the case to the appellant in the light of the Establishment Division letter of 29th July, 1979 and reproduced at para 9. The Departmental Representative, however, contested the view-point of the learned State Counsel by projecting the angle of the department. We also heard the learned counsel for the appellant.
11. We at constrained to point out that, on receipt of Establishment Division letter of 29th July, 1979, the first person against whom action was launched by the Director of Civil Defence (Sher Muhammad) vide, Show Cause dated 1st September, 1979 for deconfirming was the appellant. As a result of our knowledge of this case, we consider this Show Cause to be a mockery of administrative justice and set it aside as well as any action which may have followed therefrom.
12. Before passing final orders in this case we wish to go into two questions, viz. Inter se seniority of the appellant vis-a-vis respondents Nos. 4 to 6 and maintenance of a combined seniority list versus separate seniority lists for different outfits of the Directorate General of Civil Defence.
13. We have no doubt that respondent No, 4 should not have been selected as Assistant in the first instance. He was not qualified to b 4 placed on the seniority list at all. Having disposed of respondent No, 4, we are left with respondents Nos. 5 and 6 versus the appellant. If we were to accept the principle of a combined seniority list for the Directorate General as a whole, which has obvious advantages and which we recommend as against the system of separate seniority lists for various limbs of the Directorate General as suggested by the Establish net Division, the picture emerging would be quite different. However, adopting the principle of combined seniority list, where there will be free movement, more chances of promotion and better esprit de corps- essential factors for healthy growth of a department, we find that respondents Nos. 5 and 6 have been correctly placed senior to the appellant in the grade of Superintendent, having been promoted earlier. As regards inter se seniority in the grade of Administrative Officer, the appellant was not considered fit for promotion in the Departmental Promotion Committee Meeting that met on 13-14th May, 1979.
14. As a result of the foregoing, we hold the Establishment Division letter of 29th July, 1979 to be the just ruling and expect its compliance by the D. G. Civil Defence, except para.
5. Because of our own knowledge of the case, which is based on exhaustive perusal of the record, we order that-
(a) the recruitment of Gbulam Hussain (respondent No, 4) as Assistant shall be treated as irregular.
Due to initial recruitment, being irregular for want of minimum educational qualifications, his subsequent promotions as Superintendent, Administrative. Officer and Assistant Director shall also be held to be ultra vires and of no legal consequence.
(b) Respondent No, 4 (Ghulam Hussain) will cease to appear as a contestant against the appellant in any seniority list of the Directorate General of Civil Defence, as if he had never been recruited as direct Assistant.
(c) The D. G. Civil Defence will take steps to regularize the recruitment of Ghulam Hussain (respondent No, 4) in a lower grade.
15. We took into consideration the objections filed by respondents 4 and 6. Respondent No, 5 was not represented at all in whose case this judgement is being passed ex parte.
16. We feel that as desired in the Establishment Division letter dated 29th July, 1979, the Ministry of Interior may like to bold an enquiry into this case of gross irregularities and identify serving/retired officials of the Directorate General of Civil Defence for any action deemed necessary.
17. We wish to highlight that the objections filed by the D. G. Civil Defence (Gp. Capt. Muhammad Amin) on 2nd March, 1981 were a verbatim copy of the objections filed by respondent No, 4 (Ghulam Hussain). We would have liked and expected someone in the Directorate General (preferably the D. G.) to act as a neutral body by applying his own mind rather than leaning entirely on an interested party like Ghulam Hussain (respondent No, 4) and virtually filling in the predetermined blanks. This action of the D. G., Civil Defence gives us an unmistakable impression of the interchangeability of respondent No, 4 and D. G. Civil Defence. That justice was denied to the appellant thus far is, therefore, not surprising.
18. No order as to costs.