MUHAMNIAD SIDDIQUE FAROOQI (CHAIRMAN).--The appellant has brought the present appeal against orders, dated 6-3-1983 and 13-8-1975, issued by Services and General Administration Department. The brief facts of the case are that the respondent No.2 was promoted to the post of Deputy Director Industries, vide order 'No. Ad min/14691-96, dated 13-8-1975, subject to the recommendations of Public Service Commission. Prior to this appointment, the post of Deputy Director was advertised through Public Service Commission, a number of times. The first advertisement appeared in Pakistan Times, dated 12-8-1975. The second advertisement in Pakistan Times appeared on 8-9-1975 and the third one is shown to have been published in Daily Jang, dated 9-4-1978. Mr. Rasheed, appellant states that he was holding the post of Assistant Director in NPS-17, while the respondent No.2 promoted to the post in dispute, was holding the cost of Superintendent Training Centre in NPS-16 on 13-8-1975, when the impugned order was passed.
According to the appellant, the qualifications were changed in the different advertisements, for the posts in order to deprive him. It was stated that at one stage, appellant's application required to be sent to Public Service Commission was withheld by the then Director of Industries, due to his inimical attitude. The appellant stated that he was more qualified than the respondent No.2 because he had passed the B.Sc. Examination from University of Engineering and Technology and had almost 7 years' experience in NPS-17, whereas the respondent No.2 was a matriculate and was holding a lower post in NPS-16, when the impugned promotion order was passed. The appellant contended that the order of promotion, dated 13-8-1975 was an act of favouritism. He pleaded that on the basis of his better qualification and experience, for the higher grade, he should have been preferred for promotion, but he was not considered for that.
2. The respondent No.2 raised the preliminary objection that appeal was time-barred and it was not maintainable because the impugned order, dated 6-3-1983 had been passed on the basis of judgment of the Supreme Court. It was also pleaded that a review petition, against order, dated 13- 8-1975, made by the appellant, had been dismissed by the then Prime Minister, on 31-1-1986, therefore, the promotion of the respondent No.2 had become final.
3. We heard the arguments of counsel for the parties and perused the record. In our view, the following points need determination:-
(i) Whether the appeal is not maintainable before the Tribunal, in view of the fact that order, dated 6-3-1983 was passed in compliance with judgment of the Supreme Court, dated 17-5-1982?
(ii) Whether the appeal against order of promotion, dated 13-8-1975, which was initially of a temporary nature, is maintainable before the Tribunal at this stage?
(i.e)Whether the appeal is time-barred, against order, dated 13-8-1975?
(iv) Whether the respondent No.2 was not qualified for the post of Deputy Director Industries, and is not qualified for that post, even now?
(v) Whether the appellant should have been given preference over the respondent in the matter of promotion to the post of Deputy Director?
(vi) Whether the promotion of respondent No.2 to the post of Deputy Director Industry has achieved a permanent character?
(vii) Whether the appellant can be declared senior to the respondent"
4. The first issue is whether in view of the judgment of Supreme Court, dated 17-5-1982, the promotion of the respondent No.2 had become final and it cannot be challenged before the Tribunal? We examined the record and perused the judgment. It appears that Mr. Qamaruz-Zaman Niazi, who was promoted as Deputy Director vide order, dated 13-8-1975 was demoted by the Government to his previous post of Superintendent Training Centre (NPS-16) vide No.Admin.15573- 81/77, dated 5-12-1977. He went in appeal before the Service Tribunal, where his appeal was dismissed but on further appeal before the Supreme Court, his plea was accepted by the honourable Court to the extent that his demotion order could not have been passed without affording him an opportunity of being heard. According to the judgment, a civil servant continuing on any post even on ad hoc basis for more than 6 months cannot be reverted or removed from the post without a show-cause notice as according to the view taken by the learned Court, the nature of appointment after expiry of 6 months acquires a regular character at least for the purpose of taking any action against the official so appointed. The last para. Of the judgment being relevant to the issue is reproduced below:- "In view of the above, we reiterate our view taken in case 'Rafique Akhtar Chaudhry v. Azad Government' and hold that the reversion of the appellant from the post of Deputy Director Industries to that of Superintendent Training Centre, for want of a show-cause notice, is illegal, unsound and needs to be recalled. We, therefore, accept this appeal, set aside the judgment of the Service Tribunal passed on 7-6-1980 and declared that the reversion of the appellant, without a show-cause notice, is ab initio void. No order as to costs."
The perusal of the judgment shows that the appeal of the respondent No.2 was accepted by the Supreme Court and the order of his demotion was set aside on a technical ground. The judgment of the Supreme Court never aimed at perpetuating the promotion of respondent No.2, if it was otherwise found illegal, but further action could only be taken, after the issuance of show-cause notice. It was nowhere provided that the legitimate right of any individual, if, found infringed, would also be effected The respective claims per the appellant and respondent No.2 were not in dispute nor considered by the Supreme Court, The appellant was not a party before the Supreme Court in the proceedings, preferred by the respondents. The judgment of Supreme Court has restored the respondent No.2 to the position, held by him on or before 5-12-1977 but did not bestow upon him a better claim. The respondent p No. 2 has not acquired a licence to use the judgment as a 'penacea against all infirmities, shortcomings, weaknesses, or faults, which can be found with order of his promotion, dated 13-8-1975. He has a right of being heard and any form seized of a case against him is bound to hear him before any action is taken. In view of these facts, it is held that any person, who had a right to bring any legal proceedings, for any relief against respondent No.2 is not debarred by the operation of the judgment of Supreme Court, from seeking the relief through any proceedings otherwise maintainable, before any forum. Thus, the present appeal is maintainable against the order, dated 13-8-1975 notwithstanding the judgment, dated 17-5-1982, if this appeal is otherwise competent.
5. In respect of the matter, whether the appeal is competent, against order, dated 13-8-1975. We have found that the appellant preferred a review petition before the Government, which was dismissed by the Prime Minister, on 31-1-1976. The appellant states that he preferred an appeal in the Service tribunal against the said order but the same was returned to him with the remarks that in view of the order of promotion, dated 13-8-1975 and order of Prime Minister, dated 31-1-1976, the promotion of the respondent No. 2 was not of permanent nature, therefore, the appeal was not maintainable against such an order. Thereafter, the respondent No.2 was demoted by Government order vide order, dated 5-12-1977, but after the judgment of Supreme Court, the respondent No.2 has been again appointed as Deputy Director vide order, dated 6-3-1983. Through order, dated 31- 1-1976, it was directed that the post may be got filled in, through Public Service Commission, indicating therein that appellant as well as the respondent No.2 were not qualified for the post and it was further directed that respondent No.2 be allowed to continue on the post, till the Public Service Commission makes a selection for the post, after advertisement within 6 months. It was reiterated in the order, dated 31-1-1976 that the promotion was purely temporary and that the respondent No.2 was holding the post as stopgap arrangement. Now after the respondent's restoration to the post, vide order, dated 6-3-1983, the promotion was challenged again by the appellant, through a review petition but the petition has not been decided. After compliance of the judgment of the Court, further action warranted by law, should have been taken, but the authorities have stayed their hands. It has not been made clear by the Government, not by any other authority that any action was in hand, for the filling up of vacancies through the appropriate forum. This neglect on the part of the Government, and other departmental authority coupled with the prolonged continuance of the respondent on a higher post, certainly gives a cause of action to the appellant to seek a remedy, before this Tribunal. The respondent No.2, is enjoying the post since 31- 10-1975. The excuse that promotion was of temporary nature, loses all its weight in the circumstances of this case, and it cannot deprive the appellant from seeking any remedy. We are supported in our view by a number of authorities from Pakistan jurisdiction.
6. In respect of limitation, the counsel for the appellant submitted that the order of promotion was challenged through the review petition and further remedy before the Service Tribunal was also sought at the proper time but the appeal was returned to the appellant. In the meantime, the appellant was demoted to the post of Superintendent Training Centre (NPS-16) vide order, dated 5-12-1977. The cause of action accruing to the appellant was brought to an end by the order, dated 5-12-1977. The appellant actually wanted that he should be also considered for promotion treating the post as vacant. After the demotion of respondent No.2, on 5-12-1977, the appellant was no longer entitled to any further relief as the cause of action did not subsist. Therefore, he could not move any authority. Now on restoration of the respondent No.2, to the post of Deputy Director vide order, dated 6-3-1983, the cause of action has been revived because in spite of temporary nature of promotion, the respondent No.2 is holding the post, since long with benefits and it is not known whether this arrangement would continue till the retirement of the contestant parties. Thus, in view of the special feature of this case, he feels aggrieved and has come to challenge the promotion, which has been again made effective, vide order, dated 6-3-1983. According to the appellant, he moved a fresh review petition but there was no response and from the date of fresh order, dated 6-3-1983, his appeal is within time. In view of the submissions of the counsel for the appellant, we feel that the period involved is well explained and it cannot be said that appellant was ever sitting idle over his rights or in respect of remedy, which he could have sought before any forum. The entire period seems to have covered by the events stated by the appellant. In these circumstances, it is held that the appeal of the appellant is not hit by the limitation.
7. So far as the qualification of respondent No.2 is concerned, he is F.A. At present and it is stated that he was Matriculate at the time of passing impugned order. We have pursued the three advertisements in newspapers. The first one appeared in Pakistan Times, dated 12-8-1975. Extract of the same is given below:- "1. One temporary (but likely to continue) Post of Deputy Director Industries. (Gazetted Class-I).-- Pay Scale; Rs.750-75-1500. Higher start can be given to well-experienced candidates.
Qualifications: Graduate of any recognized University in Economics or Engineering or Technology with at least five years' practical experience in planning for Small Industries. Probation period: Two years."
The second advertisement appeared in the same newspaper on 8-9-1975. The extract is reproduced below:- "Qualification: (a) M.Sc. Chemical Technology 2nd class or M.Sc. Industrial Engineering/Chemical Engineering with 5 years' practical experience of his work against a responsible post in a Government Department, autonomous body/Corporation or well-reputed Industrial concern.
Other qualification: Administrative experience and academic qualification such as M.A. Economics.
A.M.I.E. Chem. Would be considered as additional qualification. (b) For departmental candidate M.A. Economics with at least 6 years' experience of Industrial planning and administration. Age: Minimum 28 years. Maximum: 35 years for new entrants case of experience hand."
The third one appeared in Daily Jang, dated 9-4-1978. The extract is also reproduced as under:- The perusal of advertisement clearly shows that the respondent No.2, who was only F.A. And acquired diploma in weaving or the Textile Manufacturing (Technology) was not at all qualified for the post of Deputy Director. He stated that he is better qualified for having qualified the weaving course but it does not make him eligible for the post on the facts of the advertisements. In view of these facts, his appointment was illegal. Prima facie, the appointment appears to be an act of favouritism. It has been stated that Public Service Commission approved him for the post but on enforcement of Public Service Commission/Ordinance, 1978, all the recommendations of the Public Service Commission on which the appointments were made between 24th August, 1978 to the date of the framing of Public Service Commission function rules 1977, were annulled. Such appointments were declared ad hoc. Apart from the effect of the legislation, we feel that if a person was not holding the qualification prescribed, by the Government, the recommendation in respect of such a person was an illegal act of the defunct Commission and it conferred no right nor any title on the respondent No-2 for holding the post of Deputy Director. The Commission also seems to have ignored better qualified person. Such a recommendation of Commission can be termed as mala fide in the eyes of law, even if no malice appears in the mind of any member of the Commission.
The opinion of the Public Service Commission, even if not turned down, by the competent authority, would have not been, otherwise helpful to the respondent No-2, if challenged by any aggrieved person, because, the Commission was not itself legally constituted and its recommendations were of no value. The constitution of the Public Service Commission then existing for lack of the approval of the President was found violative of the Azad Jammu and Kashmir Government, Rules of Business, R. 11 & Schedule III, in the reference No.1, by the President of Azad Jammu and Kashmir PLD 1978 SC (A J & K) 37.
8. Whether the appellant should have been given preference over the respondent No.2, in the mater of promotion is a question, within the domain of the Selection Authority and the Government.
In case no person before the Commission was qualified for the post, the Commission should have deferred the selection. At the most, the Commission could suggest to the department concerned for changing the standard of the qualification and after the change, if any, in the qualifications, the Commission could invite the applications, in light of the decision of Department/ Government. No such bourse seems to have been adopted. Ordinarily, a person, who is a graduate and was in NPS- 17 should have been preferred to one, who was an intermediate and held the post in NPS-16, if none of them was qualified and neither of the two was holding a post, in the cadre from which the promotions were to be made. It has been stated that promotion to the post of Deputy Director could have been made from the post of Assistant Director but not from the post of Superintendent, Training Centre. A copy of rules, prevailing in Punjab has been produced. The rules enforced in Punjab were by implication applicable in Azad Kashmir because, while adopting the principal of parity, in matter of pay scales, it was declared by the Government of Azad Jammu & Kashmir that officers in Azad Kashmir will be entitled to the same pay scales as are admissible to their counter- parts in West Pakistan/Punjab provided the method of recruitment and nature of responsibility be the same. The qualification had been prescribed in Azad Kashmir as appears from he advertisements and it also appears that both the contestant officers were not qualified for the spot. The senior in status, in the discretion of the Selection Authority could have been given preference but again, we may remark that we cannot determine any of these matters, at this stage, because Selection Authority is stated not to have yet taken a decision in the matter of filling up of the post, held by the respondent No. 2.
9. So far as the nature of promotion of respondent No.2 is concerned, it is very much clear that his promotion was ordered, subject to the recommendations of Public Service Commission. Such promotion remains temporary, irrespective of the period, so far elapsed. In a recent decision of Supreme Court of Pakistan, reported in 1986 SCM R 1583, it has been held at page 1584 as under:- "It is not denied that passing of the departmental examination was one of the conditions of service.
Moreover, the probationary period which was initially for two years could be extended either before or after its expiry failing which according to the rules, the service was to be treated until further orders. It is also an admitted position that the probationary period was not extended, therefore, the service of the petitioner as an Inspector was until further orders. The Tribunal while disposing of the contention raised by the petitioner observed as follows:- 'No doubt, his probation was not extended within time, neverthe--less, this fact does not absolve him from appearing in the departmental examination. In fact, when the order of termination was passed, he in terms of his appointment order, was serving until further orders. As such, the appellant's services could be terminated at any time.'
Learned counsel appearing for the petitioner could not meet the point made in the impugned order. His only contention was that the petitioner could have again appeared for passing the examination. This was for the departmental authority to permit him or with hold permission to do so."
The appointment of Mr. Niazi to the post of Deputy Director was subject to the approval of Public Service- Commission. The Selection Authority as stated earlier has not so far approved the promotion of Mr. Qamaruz---Zaman Niazi, for the post of Deputy Director, therefore, the nature of his appointment to his post remains temporary uptil the decision of Selection Authority and it can be terminated on a decision of the Government to this effect, after issuance of show-cause notice.
10. So far as the question of seniority of appellant is concerned, the appellant has been also promoted to the post of Deputy Director in NPS-18 vide Order No. Admin.A-3(38)/85, dated 9-5- 1985. This promotion is regular, having been made on the recommendation of Azad Jammu and Kashmir Selection Board. The respondent No.2 is not so far promoted to NPS-18 on the regular basis.
The appointment of respondent No.2 in NPS-18 on the post of Deputy Director does not give him any right for seniority nor for permanent appointment to the post, which is clear from proviso to the sub-rule (5) of rule 23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service, Rules), 1977. Thus, even if, the respondent No.2 is approved for appointment, to the post of Deputy Director in NPS-18 at any further date, he will rank junior to the appellant. It is accordingly held that appellant on he basis of his earlier selection coupled with regular appointment is senior to the respondent No.2 as Deputy Director in NPS-18 and temporary nature of promotion gives no right of seniority to the respondent No.2.
11. Whether the promotion of respondent No.2 made in violation of rules, without any qualification as well as the merit, should be set aside by the Tribunal at this stage has been a question of concern for us. He is holding the post for a pretty long time, without reference to the prescribed selection authority and his case is to be considered by the Selection Authority, as well as of the Government, in matter of confirmation. This promotion as evidenced by the orders, dated 13-8-1975 and 31-1- 1976 is of temporary nature. It does not in any way effect the appellant. Therefore, we are of they view that in spite of so many irregularities, committed by the Government, as well as by the defuncted commission, for giving relief to the appellant, it is not necessary to set at naught an order, unless a decision is taken, by the Selection Authority and by he Government in this behalf. It should meet its logical and in the light of the recommendation of the Selection Authority and the decision of the Government. The case should be referred to the Selection Authority by the concerned department as early as possible and illegality committed so far, should not be allowed to perpetuate.
12. The appeal is accepted to the extent that the appellant is declared senior to the respondent No.2 and it is further declared that the promotion of respondent No.2 continues to be of temporary nature till it is approved by the prescribed authority. The appointment of respondent No.2 as Deputy Director in NPS-18 will give him by any right for seniority, not for the regular appointment. He may continue in terms of order of Prime Minister, dated 31-1-1976. We make no order as to the cost.
A.A. /44-S/Lb/S