SALAHUDDIN CHAUDHRI (MEMBER).--The appellant, Syed Ali Raza, is a Selection Grade Stenographer (B-16) in the Statistics Division, Islamabad. He felt aggrieved when for promotion to the post of Private Secretary (B-17) to the Secretary of the said Division he was ignored and his junior Khalil Ahmed Chaudhri was promoted to the said post on 26-5-1988 even though, according to the appellant, he was ineligible under the Rules for appointment to the said post. The departmental representation having not been responded to, Syed Ali Raza has preferred this appeal.
2. It is not disputed that the appellant is senior to Khalil Ahmed Chaudhri, respondent No, 3, as their dates of appointment as Stenographer are 25-1-1979 and 13-10-1981 respectively. In Selection Grade also the appellant entered on 9-4-1983 whereas respondent No, 3 got it on 2-2-1988. When the post of Private Secretary fell vacant the, Secretary of the Division constituted a three-man committee with himself as the Chairman, to select a suitable candidate for appointment to the said post. This committee went through the service record of six stenographers of the Statistics Division including that of the appellant and respondent No, 3, and recommended the name of Khalil Ahmed Chaudhri. It needs mention that at that time the appellant was in B-16 whereas Khalil Ahmed Chaudhri was in B-15. The recommendation was examined in the Establishment Division and the Statistics Division was requested to reconsider the case. The relevant para. of the Establishment Division U.O. No, 47/4/86-CP-4, dated 2-11-1987 reads as under:-- "The case has been examined in consultation with the Regulation Wing of the Establishment Division and it is held that according to the revised recruitment rules (copy enclosed) the post of Private Secretary is not a selection post in the sense that a senior officer with good or better record can he ignored altogether. Like all other promotions to posts in BPS-18 and 17 this post would be filled up on seniority-cum-fitness basis. The Statistics Division are, therefore, requested to reconsider the case accordingly."
The Statistics Division referred the matter back to the Establishment Division on 25-1-1988 drawing attention to the Recruitment Rules for Private Secretary notified on 8-2-1966 under which appointment to the post of Private Secretary was to be made through selection by the Secretary of the Division. The Establishment Division reiterated its earlier view vide its O.M. dated 17-3-1988 and clarified that the performance of the candidate as reflected in the A.C.R. with due regard to seniority was to be taken into account. The Statistics Division again pressed that it might be allowed to exercise its judgment and the recommendation already made should be approved. The Secretary of the Division also wrote a D.O. letter dated 2-5-1988 to the Additional Secretary, Establishment Division seeking his help to let Khalil Ahmed Chaudhri be his Private Secretary. The matter was put up to the Secretary, Establishment Division, who finally approved Khalil Ahmed Chaudhri's name and the decision was conveyed to the Statistics Division vide Establishment Division's U.O. dated 26-5-1988. Consequently, Khalil Ahmed Chaudhri was promoted to B-17 and it is this order which the appellant has challenged through this appeal.
3. The objection raised on behalf of the appellant was that the respondents ignored him for the higher post in total disregard and violation of the relevant Rules of Promotion. Instead, his junior who was not even eligible, was appointed to the post of Private Secretary. The learned counsel for the appellant pointed out that under the promotion rules in force minimum length of service required for promotion to the post of Private Secretary was seven years as Stenographer. He went on to add that having been appointed Stenographer on 25-1-1969, the appellant had far longer service than the minimum required. On the other hand, Respondent No,3 had less than seven years of service on 26-5-1988 when he was promoted. Further, the appellant was senior and also had better record. On the basis of these contentions the learned counsel maintained that the appellant had been wrongly ignored and so, the impugned orders could not be sustained in law. The Departmental Representative resisted the appeal on the main ground that the promotion to the post of Private Secretary was to be made on selection and the Departmental Promotion Committee selected Respondent No,3, on the basis of suitability and fitness and, therefore, the matter could not be agitated before the Tribunal in view of the bar under section 4(1)(b) of the Service Tribunals Act. Respondent No,3, who was present in person was also heard. He submitted that the Departmental Promotion Committee had selected him on the sole ground that he was more proficient than the appellant. In this connection he referred to the appellant's posting as Private Secretary on trial basis and pointed out that the posting orders had to be changed after a short while because the Secretary felt dissatisfied with the performance of the appellant.
4. It appears from the facts brought on record that under the old Rules of 1966, referred to earlier in this order, the Secretary of the Division was empowered to select a candidate from amongst the Stenographers in the Ministry/Division. The relevant Rule 3(a) of 1966 Rules is reproduced below:- "3(a) Recruitment to the post shall be made by promotion on the basis of selection by the Secretary from amongst those Stenographers who are permanent or eligible for confirmation as such in the Ministry/Division concerned."
However, after coming into force of the Civil Servants Act, 1973, and in pursuance of sub-rule (2) of rule (3) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, fresh rules superseding the 1966 Rules were framed and notified on 22-10-1987. Therefore, there should be no dispute that it were these Rules of October, 1987 which were applicable to the case of the appellant.
No doubt when the Departmental Promotion Committee recommended the case of Khalil Ahmed Chaudhry the old 1966 Rules were in the field and the revised rules were still at the draft stage.
Although the Establishment Division did bring it to the notice of the Statistics Division that the promotion rules were being revised yet it could not be said that the Statistics Division should have followed the rules which were yet to be approved and legally enforced. But once they were enforced the Departmental Promotion Committee as well as the competent authority was bound under the law to proceed under those rules alone. The revised Rules of 1987 laid down conditions for promotion in rule 3 which reads as under:- "3. Conditions for promotion.- Promotion to the post in column I below shall be made by selection from amongst the persons who hold the post specified in column 2 on a regular basis and possess qualifications and experience prescribed in column 3 : Name of the Post Person eligible Conditions of eligibility.
Private Secretary (BPS-17)Regularly appointed Stenographers, including those in the selection grade.Seven years satis - factory service as Stenographer, includ ing service in selec tion grade."
The above rule lays down seven years of service as Stenographer as a condition of eligibility. It is not disputed that having entered the cadre of Stenographer on 25-1-1979 the appellant fulfilled the condition. On the other hand, on 26-5-1988 the total length of service of Respondent No,3 was less than seven years since he came to hold the post of Stenographer on 13-10-1981. Obviously, he was ineligible for promotion to the post of Private Secretary. In the light of these facts, we are of the considered view that there is hardly any force in the plea that the appeal is not maintainable because of the bar under section 4(1)(b) of the Service Tribunals Act and that this Tribunal is not competent to interfere. It is true that the promotion to the post of Private Secretary is to be made through selection even under the revised rules and it is the function of the departmental authorities to determine the fitness of the candidates for promotion. But the determination has to be in accordance with law and not in violation of law and the rules. As mentioned earlier, under the rules in force, Khalil Ahmed Chaudhry was not eligible to be considered whereas the appellant was. In these circumstances, this Tribunal has the jurisdiction to interfere. In the case reported as Government of Pakistan v. Muhammad Sadiq 1985 SCMR 699 the Supreme Court of Pakistan has observed as under:- "It is a fact that at no stage it was disputed that the two appellants when considered and approved for promotion or even when appointed to the upgraded posts were not eligible to be promoted.
Hence their consideration, recommendation and appointment was all against the law, in excess of the powers conferred on the Departmental Promotion Committee and the Competent Authority. It had nothing to do with their fitness or suitability. The question of fitness and suitability arises amongst eligibles and not amongst eligibles and ineligibles. The bar contained in proviso (b) to subsection (1) of section 4 of the Tribunals Act is inapplicable."
5. The above reasoning apart, the appellant was senior to Respondent No,3 both as Stenographer and even in the Selection Grade. Further, his confidential record shows that he had in the last five years been graded higher than the Respondent No,3. During the said period the appellant received four "Very Good" and one "Good" report whereas Khalil Ahmed Chaudhry was assessed "Very Good" in two years and "Good" in three years.
6. In the light of what has been stated above we are firmly of the view that the name of the appellant was ignored for the purpose of promotion to the post of Private Secretary in utter disregard of the relevant rules in force and his grievance is well-founded. We direct that Syed Ali Raza shall be promoted as Private Secretary (B-17) with effect from 25-6-1988, the date on which his junior was promoted. If necessary, a supernumerary post shall be created to implement these directions. We further direct that the appellant shall be paid all back benefits as admissible under the Rules.
7. No order as to costs.
8. Parties to be informed accordingly.