' A.
0. RAIZUR RAHMAN (MEMBER).-This appeal relates to the refusal of respondent No, 1 to consider the appellant for promotion to the next higher post of Deputy Chief in the Industries and Commerce Section of the Planning and Development Division.
2. The appellant, who was recruited as a Research Officer on 6th December, 1971 claimed that, in October, 1975 when a post of Deputy Chief fell vacant another person, who, according to him, was not fully qualified, was given an ad hoc appointment and latter placed on regular footing on the recommendation of the Federal Public Service Commission. However, the appellant had also appeared before the F. P. S. C, in response to their advertisement and, because of his higher qualification, background and experience, the Commission was unwilling to regularise the appointment of the other person, but, on an assurance, given by the departmental representative before the Commission, that most sympathetic consideration would be given to the Appellant when the next vacancy occurred, the F. P. S. C. Agreed to select the departmental candidate for the post in question. However, although a number of vacancies occurred, the appellant was not considered for promotion and the vacancy was filled by appointment of other persons, either by direct appointment or by transfer, although, under the rules, at Yeast 33% of the vacancies should have been filled by promotion which was not done. The appellant, having made a number of representations to the department, was finally informed on 27th June, 1981 that no vacancy was likely to occur in the near future but that his case would be given due consideration as and when any post fell vacant in the promotion quota. Against this decision, which was more or less a rejection of the prayer of the appellant, he preferred a departmental appeal on 18th July, 1981, which was not forwarded to the competent authority and the fact was intimated to him by the department on 25th July, 1981. Against this rejection of the departmental appeal he came to the Tribunal in appeal on 27th July, 1981. The appeal, being within time, was admitted for hearing, which took place on 25th October, 1983 and 22nd December, 1983 and is being disposed of by this order.
3. As contended by the appellant, in his memo. Of appeal and the arguments put forward during the hearing, the main grounds on which he has based his claim are that the rules made by the Government relating to promotion/appointment of officers as Deputy Chief in his department are not being followed, with the result that he has been left out of consideration for promotion in spite of the occurring of vacancies and others not entitled to promotion are being appointed to vacancies to which he has a prior claim for promotion, on the basis of his seniority and the rules determining the percentage of posts to be filled up, respectively, by promotion, by direct recruitment and by transfer from other departments. It is not denied by respondent No, 2 that, under the rules, 33% of the vacancies of Deputy Chief is to be filled by promotion. But, it is contended by them that the rules have not been violated and that vacancies have been filled according to the prescribed quota. According to them, one Mr. S. Nazir Ali was appointed as a Deputy Chief on promotion with effect from 26th March, 1970 while three other persons were appointed, respectively on 1st June, 1976, 21st March, 1977 and 19th May, 1977, the first and third by direct appointment and the second by transfer from other departments, while, according to the appellant, besides Mr. S. Nazir Ali, for posts were filled by direct appointment through the F. P. S. C.
And one by transfer. In this manner, actually, as many as six vacancies were filled between 1970 and 1981 but only one out of these had been filled by promotion, while the rules provide that at least two of these were to be filled by promotion. It has also been claimed by the appellant that some of the persons who were appointed as Deputy Chiefs were not fully qualified for the post and their appointment should, therefore, be treated as irregular and null and void.
4. A perusal of the relevant documents, including those submitted by respondent No, 2, shows that when a vacancy occurred of a post of Deputy Chief, on the deputation of a permanent incumbent to the R. C. D. Secretariat, one Mr. Abdul Razzaq Sheikh was appointed with effect from 7th June, 1976 by direct recruitment and, when another vacancy occurred later, one Mr. Tajammal Hussain was appointed, with effect from 21st March, 1977 by transfer. Subsequently, another vacancy was filled by direct appointment of one Mr. K. N. Soofi on 19th May, 1977. Still some time later, one D.
Abdul Have was appointed as Deputy Chief in the Technical Services Cell of the Planning and Development Division, with effect from 12th April, 1979. In this manner, against five vacancies occurring during the period in question, three were filled by direct recruitment and one each by promotion and transfer. According to para. 6 of part I of the recruitment rules notified on 23rd January, 1970, vacancies under the 33% promotion quota were to be filled first and the vacancies reserved for direct recruitment and transfer were to be filled up later. In the present case, after the appointment of Mr. S. Nazir Ali, no vacancy was filled by promotion. According to respondent No, 2, as the appellant and other Assistant Chief did not possess the required qualifications and experience, two of the posts were filled on 21st March, 1977 and 19th May, 1977 by transfer and direct recruitment respectively. A reference to the qualifications required at the relevant time for Deputy Chiefs of the Industries and Commerce Section shows that one of the qualifications for the post was Second Class Master's Degree in Economics (with Industrial Economics) and 8 years' experience of work relating to Industrial or Commerce. On the basis of this requirement, the appellant, in our opinion, was fully qualified for the post of Deputy Chief. He is an M. A. (Eco.) 2nd Division from the University of Karachi and also M. A. (Eco.) from the Vanderbilt University, U. S. A.
And had experience of work as well as research relating to Industry and Commerce for a period of about 16 years from 1961 to 1977.. During the course of the arguments, it was contended on behalf of the department that the appellant did not possess the prescribed academic qualification as mentioned above. This point was contested by the appellant, who not only claimed that he possessed a foreign M. A. Degree in Economics (with Industrial Economics as one of the subjects), but that one of the other persons, Mr. K. N. Soofi, who had been appointed as Deputy Chief, did not at all possess a degree in Industrial Economics. The appellant's claim regarding his own qualification was passed on the certificate issued by the Vanderbilt University on 15th July, 1975 in which, inter alia, it was stated : `Mr. Sher's study programme called for an emphasis upon industrial enconomics with a view to "the fundamental principles of industrial economics which are deemed essential to wise decision making in planning, financing, administering and evaluating the economic development programmes and projects."
5. To settle the disputed point, respondent No, 2 was directed to obtain the views of the University Grants Commission, who reported as under : "The case has been examined in the Commission and we are of the view that Mr. S. A. Shei the person in question does possess Master Degree in Economics with emphasis on Industrial Economics as required for appointment of Deputy Chief. On the other hand, Mr. K. N. Soofi has Master Degree in Economics and Business Administration. Though he possesses required qualification of Master Degree in Economics but does not possess specialization in Industrial Economics. Same is the case with Mr. A. Razzak Shaikh. He also does not have specialization in Industrial Economics. Mr. Sher fulfills the qualifications as required for the post of Deputy Chief."
6. In view of the report of the University Grants Commission, we have no hesitation in holding that the appellant was fully qualified, both academically and experience-wise, for the post of Deputy Chief in the Industries and Commerce Section of the Planning and Development Division and there is no justification for the department claiming that he did not possess the required qualification and experience. The plea of the department on this point is, therefore, rejected.
7. It is also seen from the record that at the time when the first vacancy was filled by direct recruitment through the Federal Public Service Commission. The appellant also was a candidate and he appeared before the Commission. The ad hoc appointee of the department, who was also the departmental nominee, was selected for appointment after the departmental representative had given an assurance to the Commission that the appellant's case for promotion would be given most sympathetic consideration when the next vacancy occurred. This was because, as reported on the file by the departmental representative the appellant had impressed the Federal Public Service Commission "by his impassioned plea for justice which was being denied by the Planning Commission by not promoting him" and "it required a considerable amount of persuasion to convince the F. P. S. C. That justice is being done in the Planning Commission".
8. It appears that, in spite of this assurance, the appellant's case for promotion was not considered on the baseless plea that he did not possess the required qualification and experience. Had the assurance not been given by the departmental representative to the F. P. S. C. It is quite possible that they may not have agreed to the appointment of the departmental candidate, who was actually selected. It is, therefore, clear that the appellant's case has been adversely affected by the departmental representative giving an assurance to the F. P. S. C. Which the department has failed to honour up till now.
9. In view of the fact that the appellant possessed the requisite qualifications for the post in question, and he should have been considered for promotion to that post as far back as 1976, and that as many as 5 or 6 vacancies have been filled thereafter, we are of the view that the department should immediately take up the question of promotion of the appellant to the post of Deputy Chief and decide the matter on merit. Because, in sheer) violation of the rules, he was left out of consideration for no fault of his, the question of according him seniority in the new post, with effect from the date he should have been considered for promotion, should also be examined and decided at an early date.
10. With the above orders, the appeal is allowed.
11. There shall be no order as to costs.