1. ' MUNAWAR ALI KHAN (CHAIRMAN).--- Three appeals bearing Nos.69 of 1986, 70 of 1986 and 71 of 1986 which have been respectively filed by Messrs Ghulam Mustafa, Abrar Hussain Mirza and Hassan All Baloach are being disposed by this common judgment. These appeals arc directed against the same Government Notification No,S01(S&GAD)/2/7/1985, dated 13th March, 1986.
2. Whereby Mr. Khan Muhammad who figures as respondent in all the three appeals (hereinafter referred to as the said respondent) has been absorbed as Conservator Wildlife (BS-19). The said respondent entered Government service in Forest Department in the days of One Unit, when he was posted as D.F.O. In Sindh for the first time in January, 1967. He continued to serve in Sindh area until break up of One Unit. As per arrangement worked out on dissolution of One Unit, he stood allocated to Punjab, the Province of his domicile. However, he was rendered surplus in the said Province and therefore his services were placed at the disposal of the Chief Conservator of the new Province of Sindh, on deputation. The initial period of his deputation was two years which was subsequently extended from time to time until the issuance of the impugned notification. In the meantime the Punjab Government pressed for his repatriation but due to one or the other reason the Sindh Government was reluctant to part with him.
3. ' On promulgation of the Sindh Wildlife Protection Ordinance 1972, autonomous body. Namely Sindh Wildlife Management Board (hereinafter referred to as the Board) came into being. It was headed by the Chief Minister and the Secretary Forest Department became Member/Secretary of the Board. On its management side, services of a Deputy Conservator were placed at the disposal of the Board. The said respondent was posted obviously on deputation as Deputy Conservator of Forest/Wildlife from 1st July, 1972. In its meeting held on 22-11-1984 the Board approved certain measures intended to reorganise and revitalize the Wildlife Organisation. Among other measures, it was decided to establish a separate Wildlife Department on the lines of other three Provinces. In pursuance of this decision, Finance Department sanctioned a number of additional posts including the post of Conservator (BS-19) in the Wildlife Department vide F.D.O.'s Letter No,WL&FT(SOI)10(5)1985, dated l6th/22nd September, 1985. Meanwhile decision was taken at the level of the Board that the said respondent should be absorbed in the newly created post of Conservator on permanent basis. However, the Secretary, Forest and Wildlife Department wrote to the Chief Conservator, calling for options of the eligible D.F.Os. For appointment as Conservator, Wildlife. Two of the appellants namely: M/s. Ghulam Mustafa and Abrar Hussain Mirza alongwith several other D.F.Os. Gave their options which were forwarded to the Secretary Forest and Wildlife Department. Their options were placed before the Wildlife Management Board, though according to the appellants they should have been sent for consideration by the appropriate Provincial Selection Board. Unlike the two appellants and other D.F.Os., the said respondent did not signify his option for the said post of Conservator. Nevertheless as per decision of the Board, the said respondent was absorbed in the post of Conservator by the impugned notification. Aggrieved by the said notification, the appellants, after exhausting departmental remedy available to them, came to this Tribunal in the aforementioned appeals. Their prayer is that the appointment of the said respondent as Conservator, Wildlife be Set aside and the impugned notification be cancelled.
4. ' We heard the arguments of the learned counsel for the parties and also went through all such documents which were relevant for disposal of the appeals.
5. ' The preliminary objection raised by the learned counsel for the said respondent was two-fold: one, that on subsequent promotion of the appellants to the posts of Conservator (BS-19), the cause of action available to them disappeared and their appeals became infructuous: and two, that the appeals were hit by limitation. In reply to first objection the learned counsel for the appellants contended that had the claim of the appellants vis-a-vis the promotion of the said respondent as Conservator been accepted, they would have been promoted much earlier than they had been actually promoted and therefore, according to the learned counsel, the appellants' belated promotion would not affect their appeals nor would such promotions render their appeals infructuous. We are inclined to agree with views expressed by the learned counsel for the appellants and hold that their appeals filed earlier would remain unaffected by their subsequent promotions.
6. ' As for the objection with regard to limitation, it may be pointed out that the appeal filed before this Tribunal is considered to be within time, if it is filed within 30 days after the expiry of statutory period of 90 days following the filing of the departmental appeal. Even if the dates mentioned by the learned counsel for the said respondent in course of his arguments are accepted as the dates on which the appellants filed departmental appeals, their appeals before this Tribunal are obviously within time. Apparently the learned counsel has erred in making the calculations for the purpose of limitation period.
7. ' It may be advantageous to reproduce the impugned notification which has sparked off the storm of the controversy between the parties. It reads as under: "With the approval of the competent authority, Mr. Khan Muhammad Khan, Deputy Conservator of Forests (Wildlife) (BS-18), on deputation from the Government of Punjab, is absorbed against the ex-cadre post of Conservator of Wildlife (BS-19) in the Wildlife and Forest Department, Government of Sindh, with immediate effect.
2. He will, however, continue to be on deputation with the Sindh Wildlife Management Board, Karachi.
8. ' It is admitted in the above notification that the said respondent was on deputation from Government of Punjab, and was working as Deputy Conservator of Forest/Wildlife (BS-18), when his appointment in the newly created post of Conservator Wildlife (BS-19) was notified. Para-2 of the notification has further clarified that he would continue to remain on deputation even after his appointment to higher post of BS-19.The question is if in view of the phraseology used in the impugned notification the induction of the said respondent in the newly created post of Conservator amounted to his permanent absorption in the said post and consequently in the Sindh Service of Forest/Wildlife Department. The answer to this question would obviously be in the negative. The object of permanent absorption of the said respondent could only be achieved by following the prescribed procedure.
9. ' As provided in rule 3(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred to as 1974 - Rules) appointment to a post has to be made by three modes namely: initial appointment in accordance with part-III or by promotion or transfer in accordance with part-II of these rules. Initial appointment to post of BS-19 can be made only on recommendations of the Public Service Commission. Obviously the appointment of the said respondent as Conservator was not made on recommendations of the Public Service Commission, and therefore, so called absorption in the post of Conservator cannot be termed as appointment by initial recruitment. Again appointment by promotion is made from amongst the civil servants of the relevant cadre on recommendations of the Departmental Promotion Committee. The appellant was admittedly a deputationist at the time of his appointment in the post of Conservator and as such he stood excluded from the definition of "Civil Servant" vide section 2(1)(b)(i) of the Sindh Civil Servant Act 1973. Thus, he was not eligible for promotion to the said post of Conservator.
10. Consequently his appointment in the said post cannot be regarded even by promotion. The third mode of appointment is by transfer. In this connection it may be pertinent to refer to rule 9(1) of the 1974 - Rules, which reads as under:- "9(1) appointment by transfer shall be made from amongst the persons holding appointment on regular basis in the same grade in which post to be filled exists."
11. ' Since the appointment of the said respondent as Conservator was made in higher post (BS-19), he cannot be held to have been appointed in the said post by way of transfer. However, the above rule could be invoked to absorb the said respondent permanently, while he was still working as Deputy Conservator (BS-18). This is because he admittedly had lien on the post of equivalent status (i,e, BS-18) on regular basis in the Province of his domicile. Even the rule 9(1) does not seem to restrict the appointment by transfer to only civil servants. Unlike the words "civil servants" used in sub-rule
(2) of rule 9, the word "persons" has been used in sub-rule (1) of the said rule. Obviously "persons" include even those who are not civil servants. It seems this has been purposely done in order to accommodate a suitable employee of Federal Government or any other Provincial Government or autonomous corporation, if he is otherwise qualified for the post. Therefore, the relevant Provincial Selection Board would have had no difficulty in clearing the said respondent for permanent absorption in the post of Deputy Conservator (BS-18) in which he was already working for quite some time. Of course on such absorption, rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules 1975 would come into play for determination of his inter se seniority vis-a-vis his colleagues holding equivalent posts (BS-18). Since his absorption was intended to be made not on his own request, he would get the benefit of his regular service in other posts held by him prior to such absorption.
12. From the above discussion it has become crystal clear that prescribed procedure was not followed for absorption of the said respondent on permanent basis. Despite the Government's intention to "absorb" the said respondent on permanent basis, he was not absorbed in the post equivalent to the one he was actually holding, as pointed out above but instead his appointment was made in the higher post. If the holder of lower post is appointed in a higher post, such appointment manifestly amounts to promotion regardless of the language in which the appointment has been spelt. Accordingly it is misnomer to call such appointment as "absorption", much less permanent absorption. It was also not permissible to by-pass the prescribed procedure or the relevant law/rules under the cloak of the word "absorption". Even para. 2 of the impugned notification has evidently contradicted the intention of permanent absorption of the said respondent, as it is expressly mentioned in the said para. That he would continue to remain on deputation even after his promotion to higher post. This finds further support from the said respondent's own admission that he had not opted for the post of Conservator in which he has been absorbed by the impugned notification. Para. 5 of the written statement filed on behalf of the official respondents also shows that the consent of the said respondent for his so-called absorption in the Ex-cadre post of Conservator was still awaited. The preceding para. 4 of the written statement shows that it was after the Punjab Government had made query if the said respondent had given his consent for his absorption in the said post that his consent was called for. All this shows that the competent authority had neither the concurrence of the Punjab Government nor the consent of the said respondent when the impugned notification was issued purporting to absorb the latter in the ex- cadre post of Conservator permanently. Consequently the induction of the said respondent in the controversial post of Conservator Wildlife was any thing but his permanent absorption in the said post or in the Sindh Forest Service.
13. ' It was argued by learned counsel for the said respondent that the post of Conservator, Wildlife was an ex-cadre post and according to him it belonged to the Board which enjoys autonomous status. Therefore, his contention was that the appointment of the said respondent in the said post did not have the effect of prejudicing the interests of the appellants and consequently they had no cause of action to bring out the present appeals. He further submitted that it was for the Board to make selection for the said post and the Provincial Selection Board had nothing to do with the appointment in the said post. In reply to above arguments our intention was drawn by the learned counsel for the appellants to the Finance Department's Letter No, WL&FT(S01)10(5)/1985, dated 16th/22nd September, 1985 addressed to the Chief Conservator of Forest, Hyderabad. He argued that the said letter which conveyed the F.D's approval to the creation of the specified posts including the controversial post of Conservator, clearly shows that the said posts were created in the Wildlife Department of Government and not for the Board. The learned counsel further pointed out that the said posts had to be filled in accordance with the mechanism laid down in the letter of sanction itself.
14. We have given our due consideration to the arguments of both the sides. In our opinion ex-cadre post as such has no legal existence. However its literal meaning is nothing but a post falling outside the particular cadre. It has not been clarified in the impugned notification, which specific cadre the authority issuing the notification had in mind so as to keep the post in question outside its purview.
15. It may be pointed out that posts are sanctioned either for temporary period or on permanent basis.
16. Consequently they fall either in temporary cadre or in permanent cadre. No post is ever created or sanctioned as ex-cadre post. But it is c quite possible that a person belonging to particular cadre is appointed to a post falling in different cadre. In that case his appointment would be considered to have been made in the ex-cadre post. In other words the post in which the appointment is made would be ex-cadre post for the appointee, as the said post is not part and parcel of his own parent cadre. The said respondent was admittedly a deputationist from Punjab and as such he did not belong to any particular cadre of the Provincial Service. Accordingly his appointment in the controversial post of Conservator could not be regarded as appointment (absorption) in ex-cadre post.
17. ' As for the argument of the learned counsel for the appellants that the controversial post was required to be tilled in accordance with the mechanism laid down in Finance Department's letter referred to above, it seems it escaped the notice of the learned counsel that the revised sanction order, dated 15th July, 1986 was issued by the Finance Department in pursuance of the express directions of the Chief Minister dated 22-5-1986. Obviously it superseded the said Department's earlier sanction order relied upon by him. According to the revised sanction order regular post of Conservator was abolished w,e,f, 10-9-1985 and in its place ex-cadre temporary post of Conservator of Wild Life in the Wild Life and Forest Department was created from 13-3-1986 to 31-5- 1986 in the year 1985-1986 and for the whole following year 1986-1987. With the change in the status of the post, even the method of filling it as provided in the earlier sanction order ceased to apply.
18. Now the question would arise what impact the above change created on the appointment of the said respondent in the controversial post of Conservator by the impugned notification. We have not been shown any revised notification by which even the impugned notification was reworded in the light of the change in the status of the said post. Thus, the impugned notification remained intact.
19. ' As per revised sanction order, the controversial post of the Conservator continued to be the Government post sanctioned in Wild Life Department of Government, though on temporary basis.
20. Consequently it became a part and parcel of the temporary cadre of the said Department. But as has been held earlier it cannot be designated as ex-cadre post.
21. ' The next point for our consideration is whether said respondent could be appointed in the controversial post with the change in its status and if so, what would be the nature of his appointment. The admitted position is that he was a deputationist from Punjab already holding a post of Deputy Conservator (BS-18) at the time of his appointment in the said post. Since the revised sanction order was silent as to the method of filling the post, it had to be filled under the normal rules to be invoked for filling such post. It was obvious that the post was sanctioned in the Government Department of Wild Life, that Government money was allocated for the post and that another Government Department namely Finance Department had accorded its approval for creation of the post. Thus, for all intents and purposes the controversial post of Conservator was a Government post. It was not a post of the Board. Accordingly it was be filled in accordance with the 1974 rules, regardless of its being a temporary post. It was for competent authority to decide if it was to be filled by direct recruitment or by promotion. If it was intended to be filled by promotion then such promotion was to be made from amongst the D.F.Os. Of the Department after clearance by the appropriate Provincial Selection Board. Admittedly the Secretary Forest Department had invited options of the eligible D.F.Os. Of the Department through Chief Conservator of Forest. It is also not denied that two of the appellants namely, Mr. Ghulam Mustafa and Mr. Abrar Hussain Mirza alongwith several other D.F.Os. Had given their option for their appointment in the controversial post. But some how their options were placed before the Board instead of being sent to the appropriate Provincial Selection Board. In other words the said two appellants who were eligible for promotion to the said post of Conservator and who had also given their options like other D.F.Os.
22. Were ignored and instead the said respondent who was neither eligible nor had given option was appointed as Conservator Wildlife in the controversial post.
23. ' The upshot of the above discussion is that the appointment of the said respondent in the controversial post of Conservator Wildlife is not legally sustainable. At best his appointment in the said post was in the nature of ad hoc promotion of the deputationist (not being civil servant) as a temporary measure or a stop-gap arrangement, pending the filling of the post in accordance with prescribed procedure. Accordingly the said respondent would continue in the controversial post only until such time the post is filled by appointment of suitable hand in accordance with the prescribed procedure. We have noticed that the said respondent has already held the controversial post for more than two years. We, therefore, wish the Department would avoid further delay in filling the post in question in accordance with prescribed procedure.
24. ' The appeals of M/s. Ghulam Mustafa and Abrar Hussain Mirza are therefore partly allowed with no order as to costs. However, the case of third appellant namely Mr. Hassan Ali Baloch appears to be on different footing. It is admitted by him in para. 3 of his memo of appeal that he was promoted as Conservator of Forest vide Government of Sindh Notification No,SOI(S&GAD)- 3/103/75, dated 24-6-1984. In view of his own admission he was already working as Conservator (BS-19) when the impugned Notification was issued. Moreover, this appellant is not stated to have given his option for his appointment in the controversial post of Conservator, obviously for the reason that options were invited only from the D.F.Os. Of the Department. He being conservator at that time was not eligible to give his option. If at all he had any grievance against the appointment of the said respondent it was based on his apprehension about his future interests such as seniority etc. Surely no appeal can be entertained on that ground. Thus, no cause of action had accrued to this appellant and as such his appeal is not competent and is dismissed with no order as to costs.