MUHAMMAD IRSHAD KHAN, (MEMBER).--The appellant was appointed as Assistant Sub-Inspector in the Federal Investigation Agenc3 (hereinafter referred to as the F.I.A.), with effect from 7-11-1975.
In February, 1984, while attending a training course at the F.I.A. Training School, Islamabad, he came to know that some promotions to the higher post of Sub-Inspector had been made by the Directors of the F.I.A. At Lahore and Karachi, respectively. On enquiries being made, he found out that the Respondents Nos.4 to 6 working as Assistant Sub-Inspectors in the Central and Southern Zones of F.I.A., and who were appointed to the post subsequent to the date of the appellant's appointment and were thus junior to him, had been promoted to the higher post of Sub-Inspector without considering the appellant. He, therefore, submitted a Departmental Appeal to the Director-General, F.I.A., on 16-2-1984 but when received no reply thereto even after the expiry of the statutory waiting period of ninety days, he filed the present appeal.
2. Mr. Aminur Rahman Khan, the learned counsel for the appellant, submitted that promotion to the post of Sub-Inspector should have been made not on regional basis but on All-Pakistan basis in accordance with rules 12 and 13 of the F.I.A. (Appointment, Promotion and Transfer) Rules, 1975 (hereinafter referred to as the Rules). He invited a reference to the preamble of the F.I.A. Act regarding the establishment of the F.I.A. For investigation of certain offences committed in connection with matters concerning the Federal Government. He also referred to section 5 of the F.I.A. Act which confers on the members of the F.I.A. Powers of search and arrest etc. Throughout Pakistan. He then argued that the members of the F.I.A. Perform functions in connection with the affairs of the Federal Government and are not subject to territorial limits as laid down by the Honourable Supreme Court in PLJ 1985 SC 350. Therefore, the members of the F.I.A. Irrespective of their posting at particular regions serve the whole of Pakistan and promotion to the post in those offices should ordinarily be made on All-Pakistan basis. He further elaborated that if it is accepted for the sake of arguments, that some of the members of the F.I.A. Do serve on regional or provincial basis, even then the promotions to the post of Sub-Inspector should have been made on All- Pakistan basis.
3. Sardar Muhammad Amir Akbar Khan, the learned counsel for the respondent-Department, has taken a stand that the impugned promotions are in order having been made in accordance with rule 22 of the said Rules which provides for promotion in B.P.S.-3 to 15 normally in their own regions.
The Assistant Sub-Inspector and the Sub-Inspector are normally not transferable to other regions and have to take their seniority in their own region. He thus submitted that since juniors to the appellant had been promoted in their own region the appellants' interest has not been affected adversely thereby and he should have no cause of grievance.
4. We have given our anxious thought to the submissions made by the parties and carefully considered the relevant statutory provisions. Rules 12 and 13 of the said Rules are with advantage, reproduced below: - "12. For the purposes of promotion, direct appointment and transfer, the posts in the Federal Investigation Agency will be placed in the following groups, namely:
(i) Investigation.
(ii) Accounts.
(iii) Customs.
(iv) Income-tax.
(v) Engineering.
(vi) Legal.
These groups may, for the smooth administration of the Agency and with the prior approval of the Federal Government, be added to or modified as may be considered appropriate by the Director-- -General.
PART V. APPOINTMENTS BY PROMOTION
13. (1) Appointment by promotion shall ordinarily be made within the Groups mentioned in rule 12 by promotion of Officers and staff working in the next lower Grade or rank on the recommendation of the appropriate Departmental Promotion Committee of the Central Selection Board, as the case may be.
(2) .........................
(3).........................
A bare perusal of the above provisions makes it manifestly clear that the promotions shall ordinarily be made within the Groups and not within the regions. It was brought to our notice that during the pendency of this appeal the F. I. A. Themselves have issued a seniority list of the Assistant Sub-Inspectors on All-Pakistan basis and made promotions to the grade of Sub- Inspectors on that basis as is evident by the Director---General, F.I.A---s Office Order No. 81, dated 9-5-1985 whereby eighteen Assistant Sub-Inspectors were promoted as Officiating Sub-Inspectors with a specific mention that "the promotions are made on All-Pakistan basis and, therefore, those Officers may be liable to posting in any of the Offices of this Agency". We are thus led to the irresistible conclusion that the promotions to the post of Sub-Inspector in the F.I.A. Are to be made within the Groups on All-Pakistan basis and not on regional basis.
5. We now proceed to consider the import of rule 22 of the said Rules relied upon by the learned counsel for the respondent-Department which reads as under:- "22. Vacancies in posts in Grades 3 to 15 in offices which serve only a particular province or region and the incumbents of which are not ordinarily transferable to offices of the Agency located in other provinces or regions shall be filled by appointment of persons domiciled in the province or region concerned."
It may first be noted that the above rule is applicable to the appointments by direct recruitment and does not relate to the appointments by promotion. In any case the implication of even above rule would be that the vacancies in posts in B.P.S.-3 to 15 in provincial or regional offices of the F. I.
A., the incumbents of which are ordinarily transferable from one office to another, shall be filled on All-Pakistan basis. Since the post of Sub-Inspector, as has been seen above, in ordinarily transferable, even in accordance with the provisions of rule 22, the appointments to the post of Sub-Inspector are to be made on All-Pakistan basis.
6. Yet another point made out by the learned counsel for the appellant was that the promotions of, the Respondents Nos.4 to 6 to the post of Sub-Inspector had not been made by the competent Authority. In support of his contention he referred to the provisions of rule 11 of the said Rules which lays down that the Authorities competent to make appointments, whether by promotion, transfer or direct recruitment to the various grades, shall be as follows:- Grades 11 to 16Director-General Grades 3 to 10Director-General or Additional Director-General or any officer not below the rank of a Director to whom the powers are delegated by the Director-General.
It was submitted that previously the posts of Sub-Inspector were in Grade-7 and the Directors concerned had been authorised to make appointments thereto. However, on the introduction of the Scheme of Basic Pay Scales the posts of Sub-Inspector were placed in B.P.S.-11 (previously Grade-11) with effect from the 1st of July, 1983. The Directors concerned therefore, ceased to be the Appointing Authority in respect of those posts from that date viz. The 1st of July, 1983, and the competent Authority for making appointments to the posts of Sub-Inspectors thereafter was thus the Director-General, F.I.A., in terms of rule 11, referred to above. It was argued that since the appointments of the Respondents Nos.4 to 6 were made with effect from the 1st of August, 1983, i.e. After the upgradation of the post of Sub-Inspector to B.P.S.-11, by the Directors concerned who were no longer competent to do so and as such the orders issued by them in this regard, were incompetent and illegal. There appears some force in the contention of the learned counsel. Since, however, our finding recorded above on another issue is sufficient to grant relief asked for by the appellant, we do not consider it necessary to go into this question leaving it for the Ministry of Interior and the F.I.A. To examine the matter with a view to bring rule 11 in conformity with the provisions of the Scheme of Basic Pay Scales, 1983.
7. An objection was taken on behalf of the respondent-Department that the present appeal was time-barred. The appellant, on the other hand, has filed an application for condonation of delay and in support thereof an affidavit duly sworn in by the appellant, was also filed stating therein that the order of promotion of the respondents Nos.4 to 6 issued by the Director, F.I. A., Lahore, came to his notice only in the second week of February, 1984, when he was undergoing a training course in the F.I.A. Training School, Islamabad, and as soon as he came to know about it he submitted a representation to the Director---General, F.I.A., on 16-2-1984, but when received no reply thereto even on the expiry of the statutory period of ninety days, he filed the present appeal. No counter- affidavit was filed by any of the respondents in rebuttal of the contention of the appellant. The delay thus having been explained to our satisfaction is condonable and we accordingly condone the same.
8. As a result of the above discussion, it is held that the promotions of the respondents Nos.4 to 6 to the post of the Sub-Inspector having been made on regional basis in total disregard of the Rules, were incompetent and irregular. The appeal is, therefore, accepted with the direction that the appointments of the respondents Nos.4 to 6 to the posts of Sub-Inspectors made otherwise than in accordance with the prescribed method shall be deemed to be on ad-hoc basis and the vacancies thus made available shall be filled by considering all eligible candidates, including the appellant, in accordance with the Rules on All-Pakistan basis.
9. No order as to costs. The security deposited by the appellant should be refunded to him.
A. E.