A. RAHMAN KHAN (MEMBER); -Rao Muhammad Yasin Khan, the appellant, who is at present working as Principal, Comprehensive High School, Islamabad, has come in appeal, because his representation, dated 1-10-1983 to the Secretary, Ministry of Education with regard to his promotion to the job of Director, Federal Government Educational Institutions and also non-payment of the emoluments due to him while working against a Grade-19 post since 16-9-1975, has not been replied till to-date.
2. The learned counsel for State has argued that the appeal has not been filed within the time limit and, as such, it should be considered time barred. However, we consider that in cases of pay and allowances the cause for action continues to exist till the final decision is taken. There is an application for condonation of delay we, therefore, condone any delay in the filing of the appeal before us, and we allow the case to be considered on merit.
3. The appellant joined the Department of Education, Punjab, on 10-1-1956, as a Trained Graduate Teacher, whose services were later transferred to the Federal Government Educational Institutions, Islamabad on 31-5-1966. The appellant was promoted and confirmed in Selection Grade-18 vide Notification, dated the 1st June, 1970. The appellant was shown at serial No. 4 in the combined seniority list of the Inspectors/ Inspectresses, Principals, Comprehensive High Schools, Principals of Degree Colleges, while respondent No. 3, Dr. S.M. Ahmad was shown at serial No. 5. The Ministry of Education and Scientific Research Islamabad, vide SRO 520 (K)/72, dated 6th April, 1972, framed the rules for the recruitment of Class I and Class II gazetted posts in the Central Government Education Institutions. Rule 7 of Part I (a) and (b) is reproduced below: "(a) The post of Inspector/ Inspectress Principal, Comprehensive Schools and Selection Grade Headmasters/Headmistresses, shall be inter-transferable.
(b) The post of Headmaster/ Headmistress and the Heads of Department shall be inter- transferable, provided they possess the requisite qualifications."
Rule 8 (a) of Part 11 Recruitment by Promotion is also reproduced below: - "8(a)Recruitment by promotion to the post of Director shall be made from amongst the incumbents of the posts of Inspectors/ Inspectresses, Principals of Degree Colleges and Principals of Comprehensive Schools and Selection Grade Headmasters/Head--mistresses, who have rendered at least five years, service as such on the recommendations of the Selection Board."
The appellant was transferred as Principal of the Comprehensive High School on 18-10-1973, the first time. The post of Director, Federal Government Educational Institutions, Islamabad, fell vacant due to long leave of Mr. M.A. Zaidi. The appellant was given the current charge of the post of Directors, with effect from 16-9-1975. However, Mr. Zaidi died on 20-12-1975 and as a result, the appellant was allowed to continue as Director on current charge basis till 3-5-1976. During this period, the respondent-Department did not make any effort to get the appointment of the appellant regularised.
4. The learned counsel for the appellant submitted that in the meantime the Institutions of the Northern Areas were also placed under the administrative control of the Ministry of Education, Islamabad. The post of Director (Grade 19) became available for appointment in that area. The respondent-Department instead of regularising the appointment of the appellant against the current charge of Director, Education, NGEI decided to appoint the appellant as Director, Education, Northern Areas vide notification dated 4th May, 1976 in Grade 19 which is reproduced below: "Government of Pakistan Ministry of Education Islamabad, the 4th May, 1976.
Notification No. F.4(4)/75-FGEI(NA). Rao Muhammad Yasin Khan, Director (Acting), Directorate of Federal Area Educational Institutions, Islamabad, is appointed as Director of Education, Northern Areas, Gilgit (Grade 19) as direct recruitment for a period of 6 months from his date of assumption of charge This issue with the concurrence of Establishment Division.
(Sd.)
(Niaz Muhammad)
Section Officer"
5. The appellant, however, continued as Director, Education, Gilgit for three years i.e. From 4-5-1976 to 30-3-1979. During this period the appellant was approved by the Ministry of Education/Estt.
Division at least four times and the extensions were granted to him on the basis of these approvals.
This fact is not contested by the respondent-Department.
6. While still working as Director, Northern Areas, the Ministry of Education sent a D.O. Letter No.F.3- 55/7T Adm, dated 24th February, 1979 which is reproduced below: "Government of Pakistan Ministry of Education Islamabad, the 24th February, 1979.
To The Martial Law Administrator, Zone "E", Gilgit.
Sir, I am directed to state that the services of Rao Muhammad Yasin Khan, Director of Education Northern Areas Gilgit are required by this Ministry for appointment as Director of Education, Federal Government Educational Institutions, Islamabad. We shall be grateful if he is relieved as early as possible.
Your obedient servant, (Sd.)
(Muhammad Sarwar).
Deputy Secretary."
7. The learned Counsel for the appellant emphasized on the point that the appointment of the appellant as Director, Northern Areas for a period of three years as given above was never shown as ad hoc appointment. It was an appointment on promotion to Grade 19, as clearly given in the relevant notification. So therefore to term it as any ad hoc appointment' when the appellant was made to continue for a period of three years, as a result of four successive approvals, is considered rather unreasonable. He further argued that during this period no efforts were made on the part of the respondent-Department to have the appointment regularised whereas the performance of the appellant was always considered satisfactory because otherwise he could not have been approved to continue in this independent job for such a long time.
8. On reversion from the Northern Areas, Gilgit, the appellant was appointed as Director, Schools (Acting) vide Order No. F.3-35/77-Admn. I, dated 16-4-1979. However, the very next day another office order dated 17-4-1979 was issued which is reproduced below: "Mr. Rao Muhammad Yasin Khan is appointed as Deputy Director Schools. He will look after the work of the Director of Education for Schools till permanent Director is appointed."
9. On 19-6-1979 even the second order dated 17-4-1979 was changed and the appellant -was given the current charge of the post of Director, Federal Government Educational Institutions with effect from 7-4-1979. It was further pointed out that respondent No. 3 was simultaneously appointed as Director, Colleges on temporary basis vide order dated 16-4-1979 whereas the appellant was given the acting appointment of Director of Schools. The appellant made representation on account of the above changes in the appointment but instead of taking any decision on his request, the appellant's services were placed at the disposal of the Federal Board of Intermediate and Secondary Education, Islamabad on 5-9-1979. This was done without the consent of the appellant.
In addition to the above, the appellant was also reverted to the post of Deputy Director with retrospective effect so that he could not claim any additional benefits which may accrue to him due to the current charge of Director, Education. The appellant worked in the Federal Board for about one year and was then transferred as Principal, Comprehensive High School, Islamabad on 6-1-1981. The learned counsel for the appellant contended that respondent No. 3 who was placed junior to him in the combined seniority list cited above was appointed as Director, Federal Government Educational Institutions without actually having his promotion to Grade 19 regularised through Departmental Promotion Committee. This fact was objected to by the AGPR vide their letter No. GA/ M. Colleges/Principle/266, dated 30th January, 1980 which is reproduced below: "Office of the Accountant-General Pakistan Revenues.
Islamabad, the 30th January, 1980.
To The Secretary, Ministry of Education, Islamabad.
Sub:Discrepancy in fixation of pay of Dr. S.M. Ahmed, Federal Degree College and appointment thereof.
On the Introduction of National Pay Scales for the erstwhile Gazetted Teaching Personnels in the Federal Government Educational Institutions, Islamabad, the pay of Mr. S. M. Ahmad, Principal Degree College was fixed in Grade-19 with effect from 1-3-1972 as laid down in Ministry of Education letter No. F.7-3/ 74(SA)F.I., dated 1-11-1974. It may be recalled that the post of Principal Degree College, a senior scale/Grade-18 post has been continuing on year to year basis and Mr. Ahmad was not entitled to Grade 19, without the upgradation/creation of the post of Grade 19 with effect from 1-3-1972 and his formal promotion /appointment by the competent authority i.e. Establishment Division /Finance Division in that grade vide Establishment Division O.M. No. 5(1)/87-DV, dated 16-10-1967.
(2) It has also been observed that Ahmad's appointment has been made under rule 5 of the Recruitment /Promotion rules, whereas he has not yet been appointed to Grade 19 and as such your Ministry's Gazetted Notification No. F.3-16/76-Admn. I, dated 5-9-1979 is ultra vires and cannot be admitted in Audit. Moreover, the amendment to rule 4 of the Recruitment Rules, as notified by the Ministry of Education, in consultation with the Establish--ment Division, under No. F.6 2/74-CEI, dated 11-2-1976, has not been kept in view while appointing Mr. Ahmad as Director.
(3) It is requested that the case may please be looked into and the audit requirement as pointed out above, be met in order to enable us to regularise the emoluments being drawn in Grade 19 by Dr. Ahmed.
(4) An early action is requested.
(Sd.)
Syed Bilal Ahmad D. A. G."
10. With regard to the promotion of the appellant, it was contended that his name was submitted to the Departmental Promotion Committee for consideration for further promotion on two different occasions. Firstly it was submitted on 6-11-1982 but the name was withdrawn by the respondent- department before it could be considered. Second time, the name of the appellant was included in the list of those to be considered by the Departmental Promotion Committee to be held on 21-3- 1983 but one again it was withdrawn on some flimsy ground. It was contended that no reason was ever assigned officially for withdrawal of the name of the appellant from the Departmental Promotion Committee. As a matter of fact, the respondent-Department, it can be safely presumed in this case, was deliberately adopting dialatory tactics not to have the appellant's name approved by the Departmental Promotion Committee, This, it was submitted, was to deprive the appellant from his vested right to be promoted on account of his seniority, efficiency and excellent record. All this goes to prove the annoyance and unwillingness of the respondent-department which can be termed nothing but gravely mala fide.
11. And while all this was on, it was further contended, the appellant was one again given the current charge of the duties of Director, FGEI, Islamabad for a period of three months vide Notification No, F.3 8/81-Admn.1, dated 16 8-1981 which, however, continued till 15-11-1983. The respondent- department even did not issue any notifica--tion to regularize his current charge beyond the 3 months' initial period, On representation by the appellant, dated 1-10-1983, the respondent: Department instead of taking favourable action to have 'he proms of the appellant regularised which was his legitimate right posted, as Principal, Comprehensive High School vide Order No. F.3- 11/81(SA) D.F.G.E.I., dated 15-11-1983. This was done basically, one again, to deprive the appellant of any benefit which could accrue to him for having held the current charge of the post of Director, F.G.E.I. For the above period. It only supports the mala fides of the actions taken by the respondent- Department as stated in the proceeding para.
12. The learned Counsel for the State and also the representative of the respondent-Department contended that the appointment of the appellant as Director of Education, Northern Areas, Gilgit in Grade 19 was made on 'ad hoc' basis for a period of six months. Therefore, the appellant was not entitled to regular promotion as claimed by the appellant.
13. As regards the promotion of respondent. No.3 it was contended that he was promoted to Grade 19 on the introduction of the National Pay Scales for the gazetted teaching personnel for the Federal Educational Institutions, Islamabad. Although Respondent No.3 was junior to the appellant in the seniority list issued on 16-6-1974 but because of his promotion to Grade 19, he was declared senior. His name ha, never been approved by the Departmental Promotion Committee for promotion.
14. We do not find any substance to support the arguments of t1te learned Counsel for the State. In the case of the appointment of tire appellant as Director of Education, Northern Areas, Gilgit, the notifica--tion issued does not contain any such clause to declare the :appointment as 'ad hoc'.
Even later on the four successive approvals to allow the appellant to continue as Director of Education, Northern Areas did not mention any such amendment to make the appointment as ad hoc The appointment, as borne out by the record presented by the respondent --Department, was made in a regular way by selection and according to the bona fide Recruitment Rules of the Federal Government Educational Institutions as made applicable to the Northern Areas. There was no mention of any ad hoc appointment. It cannot, therefore, be made to interpret that the appointment was made on ad hoc basis as contended by the respondent-Department.
Furthermore, the appellant was made to stay in the Northern Areas which is considered 'hard area for service' for a period of three years and the services of the appellant were considered satisfactory. There is no evidence on record that any adverse remarks were ever conveyed to the appellant in his confidential reports.
15. The representative of the 1?Stablishment Division confirmed that the name of the appellant was included in the list of those to be considered for promotion for consideration by the Department Promotion Committee at two different occasions i.e. On 6-11-1982 and 21-3-1983. His name was withdrawn by the respondent-Department on both the occasions before it could be considered.
The respondent Department did not give any reason while requesting for withdrawal of the name of the appellant. The learned Counsel for the respondents was also unable to explain the circumstances which may two them to withhold the name of the appellant from consideration by the D . P. C. On both the occasions. It also remained rather unexplained as to why the appellant could not be appointed as Director of Education, F.G.E.I.. Islamabad as stated in the D.O. Letter, dated 24th February, 1979 requesting for the reversion of the appellant from the Northern Areas. In our opinion it is amply clear from the above discussion that the seniority and efficiency of the appellant were never objected to by the respondent-Department at any stage. In fact : is a case where we have to presume that the respondent-Department took arbitrary decision to withdraw the name of the appellant from the D.P.C. And, therefore, is directly responsible to withhold his promotion which was due to him on all counts. The appellant has suffered for no fault of his and for unknown reasons beyond his control. It can be safely said that if his name was considered by the D.P.C. The appellant would have been approved for promotion
16. This unjustifiable omission whereby a wrongful loss was caused to the appellant clearly amounts to mala fide because the relevant law did not envisage supersession of a civil servant without assessing him unfit for promotion after proper consideration by the appropriate Departmental Promotion Committee. It is an established legal position that a public authority who inflicts a wrong or a loss upon a person in contravention of the law cannot be allowed to say that he did so with an innocent mind because it is evidently malice in law, although so far as his mind is concerned, he may have acted honestly or innocently. For, malice in law is to be inferred when an order is made or omission is committed contrary to the object and purposes of the relevant law or rules. It is not enough that the order is passed or action is taken under colour of power conferred. It must be done in actual exercise of it and no power is conferred to make such an order or to take such an action in abuse of the law. There is a rich case-law laid down by the Superior Court to support this proposition. It may be useful to reproduce below a description of mala fide given by Mr. Hamoodur Rahman, J (as he then was) In PLD 1960 Dacca 854 (relevant portion at page 864):- "In the category of actions considered to be mala fide the Courts have often included actions which have been variously described as "misuse of powers" or even "abuse of powers" or as acts done in "colourable exercise of powers". We would, however, be content to say that a total disregard of the provisions prescribed by the statute or rules framed under the statute may well be characterised as a misuse of powers and bring it at least within the ambit of an act which, in the language of the Supreme Court in Zafarul Ahsan's case, "in fact is not taken though it purports to have been taken under the statute."
The above-established legal position and the aforesaid circumstances of the case lead to an irresistible conclusion that the act and omissions of the departmental authorities impugned by the appellant are nothing but mala fide and are, therefore, without lawful authority.
17. The appellant has a well-earned and d well-established vested right to promotion. In all fairness, it will be against the principle of natural justice to deny him this right. As already observed, the appellant was promoted on regular basis for appointment in N.P.S. 19 in the Northern Areas after clearance by the Central Selection Board, and the competent authority also approved his appointment. When he came back from the Northern Areas, he should have been allowed to continue in N.P.S. 19 if a post was available. This is not denied on behalf of the respondent- Department that a post in N.P.S. 19 did exist when the appellant was reverted to Islamabad as Deputy Director and his grade was reduced to N.P.S.-18. It was, therefore, not proper on the part of the respondent Government to post the appellant in N.P.S. 18 as it amounted to demotion which can be done only as a penalty after giving the opportunity of being heard. Since the appellant had already, been approved, there was no question of reconsidering his fitness for promotion to N.P.S.-19. We therefore, direct that the appellant shall be deemed to have continued in N.P.S.-19 after his reversion from the Northern Areas with all consequential benefits.
18. It was stated by the appellant in person that he would be reaching the age of superannuation on 24th January, 1987. We would, therefore, expect the respondent-Department to make it possible to take action on the above directions of the Tribunal within a period of not more than three months and order accordingly.
A. E.