Asim Akram, Member. Since both the titled appeals are identical in their characteristics i.e., having similar facts and involving common questions of law, we intend to dispose them off jointly through this single judgment in Appeal No. 1298(R)CS/2020 which is taken as a leading appeal.
2. The fact narrated in the appeal are that the appellant, Asif Nadeem is working as Data Processing Assistant (BS-16) with the office of Controller General of Accounts (CGA), Islamabad.
The appellant alleges that as per amendment in the Recruitment Rules of Controller General of Accounts (the Rules), bearing SRO No. 1554(1)12019 dated 25th of September, 2019 sixty five percent (65%) of the Data Processing Officer (DPO) are to be .appointed through promotion and remaining thirty five percent (35%) by initial appointment. The Respondent No. 1 while ignoring the rules regularized the services of Respondent No 3, Nayyar Kazim, as Data Processing Officer (BS-17) vide order dated 16.07.2020 (Impugned Order). Feeling aggrieved of the Impugned Order the appellant challenged the same by filling a departmental representation which remained un-responded during the statutory period. The appellant approached the Tribunal by filing the instant appeal against Impugned Order dated 16.07.2020.
3. The counsel for the appellant states that as per Recruitment Rules 65% of the post of DPO were to be filled by promotion as per the Rules and the promotion quota has priority over initial direct appointment. At the time of passing of the Impugned Order two posts of DPO were available which, as per law and rules, had to be filled by promotion. As the amendment in the Recruitment Rules were made in late 2019 and no promotion had been made till the passing of the Impugned Order.
Therefore, by passing the impugned order, the right of the appellant for promotion as DPO against the promotion quota has been infringed. The Impugned Order is illegal and void being against the law and rules of promotion. As such the learned counsel prayed for acceptance of the appeal at hand by setting aside the Impugned Order dated 16.07.2020.
4. The learned counsel for the respondents have vehemently opposed the appeal inter alia on the grounds that the services of Mr. Nayyar Kazim (Respondent No. 3) was regularized as Data Processing Officer (BPS-17) by the Auditor General of Pakistan (AGP) vide their office order No. 370/Eatt-C/46-2011-II dated 30-06-2020 being the appointing authority. The services of Respondent No. 3 were regularized through Cabinet Sub-Committee and not made against the recruitment or promotion quota, hence question of observance of 35% (Initial appointment quota) and 65 % (Promotion quota) does not arise. Even if method of appointment of Data Processing Officer (BS-17) Le. 35% (Initial appointment quota) and 65 % (Promotion quota) observed, only one Data Processing Assistant may be promoted against two vacant posts. As such the respondents have prayed for dismissal of the instant appeal being filed without any cogent footings the same should be dismissed.
5. We have heard the learned-counsel for both the parties. We have also perused the record carefully
6. The services of the Respondent No. 3 were regularized by Auditor General of Pakistan vide Office Order No. 370/EST-C/46- 2011-II dated 30.06.2020. The relevant portion of the said office order is reproduced as under ".......... the competent authority has been pleased to regularize the service of Mr. Nayyar Kazim, ex- employee of PIFRA against the post of Data Processing Officer (BPS-17) with immediate effect and place his services at the disposal of Controller General's Office for his further posting in the post of Director General MIS/FABS."
Modest examination of the aforesaid Office Order explains that the services of Respondent No. 3 were regularized by AGP and not by CGA. The said regularization was made in response to Cabinet Sub-Committee approval communicated by the Establishment Division vide his OM No. 3/5/2011- Admin-1, dated: 09.04.2013 mentioned at Serial No 5 of Para 117 on recommendation of in-house committee meeting on regularization of contract/daily wages employees of PIFRA Project held on 19-02-2018. The Respondent No. 3 was only posted/transferred to Controller General of Account's Office for further posting. The posting/transfer does not create his right in seniority list of DPO (BS- 17) maintained by CGA, Respondent No. 1, which is a separate organization than AGP maintains separate seniority list of its employees in BS-17. The Respondent No. 3 is an employee of AGP and should be included in the seniority list of Data Processing Officers (BS-17) maintained by his parent department i.e., AGP.
7. The Impugned Order dated 16.07,2020 whereby the Respondent No. 1 regularized the services of the Respondent No. 3 as DPO w.e.f. the issuance of Office Order dated 30.06.2020 is invalid and against the Iaw. As stated above the services of Respondent No. 3 were only placed at the disposal of Controller General of Account's Office for posting/placement, he is not an employee of CGA and his name would not be included in the seniority list of CGA employees.
8. To decide the question raised by the counsel for the appellant regarding priority of promotion quota over direct appointment it would be appropriate to reproduce the instructions contained at Serial No. 26.2 of Chapter 2, ESTA CODE Edition, 2015 which deals with the issue and reads as under- "26.2 Maintenance of Roster for Application of Promotion/Initial Appointment Quota
1. ......
2. It is further clarified that a circle of roster may be started/completed by filling the vacancies in the first instance through promotion then by transfer/or direct appointment (as per the requirement of the rules framed for the post), before another circle for promotion(s) be started.
Besides, if any violation has been made in maintaining roster it must be rectified in the first instance, accordingly.
[Authority: -Estt. Division's O.M.No. 21/1/90-R-5 dated 12-11- 2015]."
(Emphasis made)
Unembellished analysis of the above instruction brings this to light that where there is quota for promotion as well as direct appointment for fulfilment of vacancy, promotion has priority over initial direct appointment. In the case at hand since the quota was created by amendment in the Rules in September 2019 and no promotion as DPO (BS-17) had been made since then. So, the post of DPO available with Respondent No. 1 at the time of passing of Impugned Order had to be filled by promotion quota first and any remaining or further post would be filled by initial appointment i.e. direct appointment as per amendment made in Recruitment Rules referred above and in accordance with instructions given at Serial No. 26.2 of Chapter 2, ESTACODE Edition, 2015.
9. In the circumstances, the Impugned Order dated 16.07.2020 is not maintainable and stands modified to the extent that the word of "Regularize the services" shall be replaced to "post Mr. Nayyar Kazim in the Office of CGA with immediate effect". Consequently, the Respondent No. 1 is directed to issue a fresh office order by following the directions given above and may fill up the post of Data Processing Officer as per law and rules. The appeal succeeds.
10. This judgment shall also apply mutatis mutandis to the Appeals bearing No. 1299&1300(R)CS/2020 as well.
11. Parties be informed in accordance with rules