' BRIO. ABDAR RASHID (MEMBER). -Brief facts of the case are that the appellant was selected, through Federal Public Service Commission, as Assistant Chief (Grade-18). He was appointed as such w. e. f. 14th July, 1972 in the Planning and Development Division and later on confirmed w,e,f, the date of the appointment.
2. The appellant was, again, selected through the F.P.S.C. As Deputy Chief (Grade-19) and so appointed in the Nutrition Cell of the Planning and Development Division w,e,f, 11th March, 1975.
3. In the year 1976, three promotion posts of Deputy Chief (Grade-19 were available and following were the Assistant Chiefs (Grade-18) in order of seniority : Date of seniority as Assistant Chief Ghulam Nabi 25-3-1972 Muhammad Hanif 1-4-1972 Dr. Abdul Hamid Maan (Appellant)14-7-1972
4. In the C.S.B. Meeting held on 18th August, 1976 Ghulam Nabi was not considered since a disciplinary case of overstays in the U.S.A. Was pending against him. Muhammad Hanif was promoted as Deputy Chief. The appellant was not considered just because be was already working against a temporary ex-cadre post of Deputy Chief (Grade-19) in the Nutrition Cell since 11th March, 1975. Against the two posts of Deputy Chief, still available, M/s. Abdul Hafeez Mirza and G. M.
Badaruddin, who were junior, with seniority (as Assistant Chiefs) dating from 1st March, 1973 and 31st May, 1973, respectively were promoted as Deputy Chiefs.
5. Vide the Nutrition Cell Planning & Development Division letter, dated 21st August, 1978 the appellant was deputed to the U. S. A. Fora post doctoral training of 9-12 months w. e. f. 1st September, 1978 under the World Hunger Programme. While the appellant was undergoing training in the U.S.A., the Nutrition Planning and Research Scheme in Pakistan, where the appellant had been working as Deputy Chief (Grade-19) and from where he had proceeded abroad for post doctoral training, was wound up. Vide the Gazette notification, dated 31st May. 1979 reproduced below, the appellant was reverted to his substantive post of Assistant Chief in the. Planning and Development Division : " Consequent upon the completion of the Nutrition Planning and Research Scheme, the following officers have relinquished charge of their posts w,e,f, 3Ist May, 1979 (A.N.). Thereafter, they are to be absorbed by respective Division/Ministry where they hold substantive posts :
(1) Dr. Abdul Hamid Maan, Deputy Chief.
(2) .. ..
6. As soon as the appellant received the above-quoted notification, he protested as its being against the terms of his deputation letter, dated 21st August, 1979. He also requested, vide his letter, dated 9th August, 1979 (addressed to the Secretary, Planning and Development Division) that it was he who should have been appointed as Deputy Chief in the Nutrition Cell rather than Dr. Mushtaq Ahmad who was an ad hoc appointee and had been posted there by tailoring, the qualifications for the said appointment only to suit him. The appellant followed up his request to the Secretary, Planning and Development Division on 1st October, 1979 and 30th January, 1980. The Establishment Division in reply to a reference from the Planning and Development Division said:- "No, 30/1/79/cp/III, Rawalpindi, the 2nd December, 1980.
Office Memorandum Subject : Promotion to the Posts of Dy. Chief in the Planning and Development Division, Islamabad.
(1)The undersigned is directed to refer to the Planning and Development Division's under order No, 3
(121) Admn-1/71, dated the 9th June, 1980 on the subject cited above and to state that Dr. A. H.
Moan's case has been considered in this Division and it has been found that Dr. Maan's supersession in 1976 merely on the ground that he had not completed the prescribed length of service was not in order. His juniors could be promoted only if Dr. Maan had been considered by the Central Selection Board and found unfit for promotion.
(2) Since Dr. Maan had been ignored for promotion for no fault of his, his case may now be placed before the Central Selection Board for promotion to Grade-19. If no Grade-19 vacancy is available at present, the junior most Grade-19 officer may be reverted to Grade-18.
(3) This issues with the approval of the Establishment Secretary."
7. Appellant's representation, dated 13th January, 1982 was finally turned down vide Planning and Development Division letter, dated 28th January, 1982 by saying that : "his case for promotion to Grade-19 was duly referred to the Establishment Division for consideration by the Central Selection Board who have considered his case and have not approved him for promotion." Thereafter, the appellant filed his present appeal before the Federal Service Tribunal, in time, on 2nd March, 1982 and the same is being disposed of by this order.
8. We heard the learned counsel from both sides as well as perused the relevant record.
9. The appellant, who had been a confirmed Assistant Chief w. e. f. 14th July, 1972 as already mentioned, was selected by F.P.S.C. As Deputy. Chief. The relevant notification, dated 19th August, 1975 to this effect is reproduced "Government of Pakistan Planning and Development Division (Nutrition Cell)
' Islamabad, the 19th August, 1975. Notification No, N.C. 5 (4) P.A.W.E./P.C/75. Having been selected by the Federal Public Service Commission for the post of Deputy Chief (Surveys and Economic Analysis) Nutrition Cell, Planning Division Dr. A. H. Maan, presently working as Deputy Chief (Surveys and Economic Analysis) in the same cell on an ad hoc basis since llth March, 1975 is appointed to Grade-19 with effect from 9th August, 1975 (F.N.) and placed on probation for a period of one year with effect from 9th August, 1975 (F. N.) extendable by order either before or after its termination by a further period not exceeding 12 months, provided that if no order is made by the day following the termination of either of the probationary periods, the appointment shall be deemed to be held until further orders."
10. The above notification should leave no doubt in anyone's mind that the appellant had been Regularly appointed. This fact is reinforced by the Planning and Development Division D.P.C. Held on 7th February, 1976 presided over by the Special Secretary, which considered the appellant (among others) and recorded : "As Dr. Maan already held the post of Deputy Chief in the Nutrition Cell, his case was not considered."
' However an exchange of letters between the Planning and Development Division and Establishment Division which had been going on before the D.P.C. Decision quoted above, would be relevant.
' A.D.O. Dated 27th September, 1975 quoted below said : From : Ch. Shauket All Joint Secretary.
Telephone 22701.
27th September, 1975.
' Subject : Departmental Promotions to the post of Deputy Chief (Grade-19) in the Economic Group- Approval of the Central Selection Board.
' Dear Mr. Khaqan Mahmood, Kindly refer to your d.o. Letter No, 25/4/74-A1, dated the 22nd September, 1975 addressed to Mr. V. A. Jaffarey. The position regarding the past service of Dr. A. H.
Maan has been verified from the record and it appears that the total length of 15 years given in the Annexure-II to summary bearing under order No, 1 (3) P.A. & E./P.C./75, dated 6th March, 1975 was as a result of typographical error. Dr. Maan actually entered into Government service on 14th July, 1972.
He was appointed Deputy Chief, Nutrition Cell, on an ad hoc basis, with effect from 11th March, 1975 and regularised as a result of F.P.S.C. Nomination, with effect from 9th August, 1975. However, from the information submitted to F.P.S.C. By Dr. Maan (reproduced as Annex.) it appears that he has a research experience of about 11 years.
' Ten copies of his revised bio-data based on the information submitted by Dr. Maan to F.P.S.C. Are enclosed. His case may now further be processed. {{TABLE TABLE}} Yours sincerely, (Sd.)
(Shauket Ali)
Enc=one ' Mr. Khaqan Mahmood Additional Secretary, Establishment Division, Rawalpindi."
11 The Establishment Division in reply to the above-quoted D. O. said "Mr. M.S. Athar, Deputy Secretary Telephone : 68157.
D. O. No. 25/4/74-AI.Cabinet Secretariat.
Establishment Division Government of Pakistan.
Rawalpindi, the 4th October, 1975.
' Subject : Departmental Promotion to the post of Deputy Chief (Grade-19) in the Economic Group- Approval of the Central Selection Board.
' My dear Joint Secretary, ' Kindly refer to your do. Letter No, 5 (3) Admn. I/75, dated the 27th September, 1975, to the Additional Secretary, Establishment Division, on the subject noted above.
2. Dr. A.H. Maan has yet to complete the prescribed length of 12 years service to become eligible for promotion to Grade-19. As such, his case cannot be placed before the Central Selection Board unless he completes the prescribed length of service.
3. This issues with the approval of the Additional Secretary, Establishment Division.
Yours sincerely, (Sd.)
(M. S. Athar)
Ch. Shaukat Ali, Joint Secretary, Planning and Development Division, Islamabad."
12. While the Establishment Division, being absolutely convinced of the rectitude of their position, were insisting on the prescribed length of service of 12 years in respect of the appellant for putting up his case before the C.S.B. For promotion to the Grade-19 post of Deputy Chief, they did not seem to realise that he had already been appointed a regular Deputy Chief. We also do not know which particular rule of length of service was being invoked because none was being quoted by the Establishment Division in respect of the category of employees to which the appellant belonged.
The perusal of record leads us to the conclusion that in respect of Assistant Chiefs, Deputy Chiefs and Chiefs, it is only the qualifications and research experience which form the basis of their selection/promotion but no length of service. This seems all too logical in view of the high academic qualifications coupled with vast research work which the appellant's category of civil servants bring with them. We find support in our contention from the Establishment Division D.
0., dated 3rd January, 1976 from Joint Secretary (Abdul Ariz) to Joint Secretary (Ch. Shaukat Ali)
Planning and Development Division which said : if............. Your attention is invited to rule 11 of the Recruitment .Rules for posts in the Planning Division according to which appointments by promotion have to be made by adhering to the requirements of Annexure 11 in all respects. The rule, however, provides that the prescribed qualification and experience may be relaxed in suitable and deserving cases....,"
13. While the appellant was being, irrelevantly subjected to an unknown yardstick of 12 years' service for consideration as Deputy Chief we have, for comparison or contrast, the case of Abdul Haft Mirza, Assistant Chief in the R.C.D. Section of the Planning and Development Division. The said Abdul Hafiz Mirza in his application, dated 19th May, 1976 for promotion, to Deputy Chief, narrated that he had first class Master's degree in Economics, 114 years' experience in relevant field and 74 years of Government service which included teaching and research experience in a Pakistani and a foreign university. No one asked him any question as to completion of 12 years service before being promoted to the post of Deputy Chief, a Grade-19 post. He was cleared for promotion as Deputy Chief in the meeting of C.S.B. Held on 18th August, 1976 in the room of Special Secretary, Establishment Division.
14. We could spring other surprises where yards of different lengths have been used by the Establishment Division and equally innocently, or otherwise, accepted by the Planning and Development Division. However, in addition to the above unique example there is equally unique case of one Ghulam Farid Malik, Assistant Chief, Education, who had been appointed as such on 12th December, 1973 and was approved for promotion as Deputy Chief in the C.S.B. Meeting held on 28th May, 1976. The said C.S.B. Bad the courage to record : "The service record was good and he had the prescribed length of service necessary for promotion to Grade-19.. In this case the "prescribed length of service" became 24 years.
15. Before closing the illuminating chapter of different lengths of Yardsticks, we would like to quote the case of one Fasihuddin. He had been promoted Chief in the Economic Group w. e. f. 5th December, 1972 on ad hoc basis. In May, 1974, his services were transferred to the R.C.D. Secretariat Tehran. On 4th January, 1976 he applied to the Secretary, Planning Division that his appointment as Chief in the Economic Group against promotion quota be regularised. He then followed up this request with application, dated 11th July, 1976. On 26th November, 1976 the Planning and Development Division informed him that, in consulation with the Establishment Division, it had been decided to confirm him as Chief on return. In stark contrast, the appellant, who was a regularly appointed Deputy Chief and was deputed abroad as such, was reduced to Assistant Chief while still abroad despite solemn commitment to him and to the U.N. And this is what we deal with now.
16. The Planning and Development Division made the following commitment with the U.N. Against which the appellant was selected for training abroad. This commitment was made to appellant as well since there can be no other way of looking at it.
(i) "If a grant is awarded (a) the recipient will receive leave of absence for the grant period and (b) full use will be made of him in the field covered by his grant. Facilities for his continued work will be available.
(ii) the absence of the applicant during studies abroad will not adversely effect his status, seniority, salary, pension and similar rights.
(iii) on return from the grant period it is proposed to employ the receipient as follows : {{TABLE TEXT}} Title of post Duties and responsibilities. Deputy Chief, Nutrition Nutrition Planning and Programming."
17. Vide his representation, dated 1st October, 1979 addressed to the Secretary, Planning and Development Division, the appellant requested the Secretary concerned to honour the commitment. Dealing with the representation, the Deputy Secretary in the Planning and Development Division (S. Niaz Ahmad) in his 0. M., dated 16th October, 1979 sought approval of the Establishment Division for adjustment of the appellant against one of the two posts of Deputy Chiefs. Referring to the commitment aspect, the said Deputy Secretary stated with the approval of Secretary : " The aforementioned undertaking involves legal point whether it is a binding for this Division to consider him for appointment as Deputy Chief even if the post against which he was working has been abolished. Prima facie his services can be utilized elsewhere as Deputy Chief/Assistant Chief as the case may be and the commitment given to the international agencies to make full use of his services in the field covered by his grant would stand implemented. It may be mentioned that the Government reserves the right of abolishing certain posts as and when necessary and no employer can be compelled to retain the post he considers redundant. This measure would not prejudice to undertaking given by the Government to all international agencies. Dr. Maan cannot lay any claim to the post of Deputy Chief on the basis of this undertaking."
18. All we would like to say, as to the above-quoted eloquence of the D. S. Is that more than legal, it was a moral issue. No one was going to come from the U.N. Headquarters and ask us what we had done with Dr. Maan. The commitment was therefore, to ourselves and to our conscience whether or not we liked to stand by it. Also, admittedly, the morality bad been thrown overboard when Chief of Nutrition Cell (Dr. Sirajul Haq Mahmud), without any pangs and in a routine fashion, bad the Gazette notification, dated 31st May, 1979 issued (reproduced at page 5 above). We are sure that the said Dr. Mahmud would have been unhappy had he been treated in the manner in which he treated the appellant. However, the more concrete issue involved was that when the Nutrition Cell got wound up and the appellant who had been sent abroad as Deputy Chief reverted as Assistant Chief, was it LEGAL or ILLEGAL. We accept that the Government have a right to abolish posts. But why is the Deputy Secretary conveniently forgetting that in this case the post of the Deputy Chief had NOT been abolished. It is on record that one Dr.' Mushtaq Ahmad, who had been appointed Chief (Nutrition) on ad hoc basis on 14th September, 1979 had been imported and appointed in the post from where the appellant had gone abroad and to which he was to revert after training. Dr. Mushtaq Ahmad may have been a highly qualified person but being far junior to the appellant, who was regular Deputy Chief, this adjustment reeks of favouritism and manifests absence of honesty. That this action was illegal and hence mala fide all too apparent.
19. The role of the Establishment Division in this case is therefor anyone to judge. The Planning and Development Division could have done better but they chose to do otherwise.
20. The conclusion, we have reached, is that the appellant had been selected as Deputy Chief on ad hoc basis but regularised as such w. e. f. 9th August, 1975 vide Gazette notification, dated 19th August, 1975. He could not have been reverted to Assistant Chief, as was done vide Gazette notification, dated 31st May, 1979 which we declare to be null and void in so far as it applies to the appellant. Consequently, therefore, ww accept the appeal and hold that the appellant would be deemed to have continued as Deputy Chief (Grade-19) on regular basis w. e. f. 9t August, 1975. He would be paid his pay and allowances (including increments) which may be due to him. If necessary, a supernumerary post of Deputy Chief would be created for him till his adjustment against a regular vacancy. Since the appellant had been selected as Deputy Chief by the F P SC, there was no reason to refer his case to the C. S. P. As was done merely due to gross inefficiency and unprincipled acts of those concerned and the appellant made to suffer untold mental agony and pecuniary loss.
21. No order as to costs.