S.M. ISHAQ (MEMBER).---The appellant, Abdul Rashid, was initially appointed as Statistical Investigator in the Federal Bureau of Statistics on 1-1-1960 and subsequently he rose to the rank of Director, Data Processing, in BPS-19 on 27-2-1974. He was serving as such when he was appointed by transfer as Director (B-19) in the Directorate General of Registration on 1-3-1977 and since then he has been serving there. He has, however, reached the maximum of BPS-20 by move-over.
2. The appellant's case is that according to the notification issued by the Ministry of Interior on 2-4- 1989 the post of Director-General (BPS-20) in the Directorate General of Registration was to be filled in by 100% promotion and failing that either by initial appointment or by transfer. However, the conditions laid down for filling the post of Director-General are that the promotion shall be made from amongst the Directors (BPS-19) who hold the post on regular basis and possess in the relevant field 17 years service in BPS-17 and above, or 12 years service in BPS-18 and above in case of direct recruits in BPS-18, or 5 years service in BPS-19 in case of direct recruits in BPS-19 and failing promotion the post shall be filled in by initial appointment and failing that by transfer.
3. According to the appellant, after the notification laying down the method, qualifications and experience for the post of Director-General was issued, Messrs Javed Qayyum Khan and Asad Mahmood AM were appointed. The former served from 20-5-1989 to 26-7-1993 while the latter is working since 27-7-1993 whereas the appellant was not considered for the post although, according to him, he fulfilled all the conditions prescribed for appointment to the post of Director.- General, Registration. The appellant, however, after exhausting the departmental remedy, filed the present appeal before this Tribunal on 24-11-1993.
4. The learned counsel for the appellant mainly contended that since the method, qualifications and other conditions laid down for the post of Director---General (BPS-20) in the Notification dated 2-4-1989 are mandatory, therefore, no discretion is left with the appointing authority to fill the post directly or by transfer so long as the candidate eligible for promotion with requisite qualifications and experience is available in the Department. He contended that the appellant, who is the senior most officer requisite conditions for appointment, was not considered for promotion to the post of Director-General and thus the respondents had acted in flagrant violation of the rules contained in the Notification dated 2-4-1989. He vehemently argued that even the incumbents who were appointed in preference to the appellant to the post of Director-General did not possess 17 years experience in a responsible position in the field of National Registration, Civil Registration and Population Studies as laid down in the Schedule to the said notification and thus respondents Nos. 1 and 2 had acted arbitrarily when they unjustifiably denied the benefit of promotion to the appellant who had already been serving with the requisite qualifications and experience in the organisation since 1-3-1977. According to the learned counsel, the appellant's case was never submitted before the Selection Board for consideration to the post of Director-General and thus injustice-was done when the officers from the other departments were taken without considering him for promotion.
On the basis of the above submissions it was prayed that the directions be issued to the respondents for the appellant's consideration for promotion to the post of Director-General, Registration (BPS-20), and if he succeeds in obtaining promotion then the officer holding the post at present be repatriated to the Police Service of Pakistan. .
5. The learned counsel for the respondents has raised two preliminary objections. The first is with regard to the limitation while the other is that Mr. Asad Mahmood Alvi has not been impleaded as necessary party in the memo. Of appeal and as such the appeal is incompetent. As regards limitation we do not agree with the submission of the learned counsel for the respondent--- Department that the cause of action arose to the' appellant on 20-5-1989 when Mr. Javaid Qayyum Khan was appointed as Director-General and, therefore, he should have agitated his grievance at that time and not on the appointment of Mr. Asad Mahmood Alvi, who was subsequently appointed as such on 27-7-1993 as, in our view, under the rules issued on 2-4-1989 the appointment of Director-General (BPS-20) was to be made amongst the Directors by 100% promotion, therefore, the cause of action accrues to the appellant whenever appointment to this post is made from outside the Department and shall continue to accrue till his case is finally rejected by the Central Selection Board. As far as the second objection is concerned, we are of the view that though the name of Mr. Asad Mahmood Alvi has not been mentioned in the memo. Of appeal yet it appears from the record that the Director-General, Registration, whose name is Asad Mahmood Alvi, has been described therein as respondent No. 3. It also appears from the contents of the appeal that the appellant is aggrieved by the transfer of Mr. Asad Mahmood Alvi (respondent No. 3) as Director-General, Registration and it is only this transfer which he has challenged in the present appeal, therefore, it cannot be said that he (Mr. Asad Alvi) has not been impleaded as respondent in the memo. Of appeal and thus the appeal is incompetent. In this view of the matter both the objections raised by the learned counsel for the respondent-Department are over-ruled and we now proceed to, dispose of the appeal on merits.
6. The appellant's contention that according to the Rules issued on 2-4-1989 the post of Director- General was to be filled in by 100% promotion amongst the Directors and thus there was no justification for posting an officer of higher grade from outside in the Registration Department, is unfounded as the Government has a right to appoint or pick and choose a proper person for a particular post in order to raise the efficiency of Government service and by doing so if any Government servant is not given promotion then no infringement of his fundamental rights is caused. In the present case, it appears that, respondent No. 3 was not promoted to higher post in preference to the appellant but was transferred in his own scale to the Registration Department.
We, therefore, find that the respondents' action was neither uncalled for nor unfair because it falls within the domain of the Government to transfer an incumbent from one post to another. Likewise the Government has discretion to upgrade a post for an officer of higher rank for improving efficiency. No doubt previously the post of Director-General was in BPS-20 and when it fell vacant then ordinarily, under the Rules, it should have-been filled amongst the departmental candidates but if due to certain exigencies that was not done and the appellant's case could not be submitted to the Central Selection Board for clearance he (the appellant) cannot challenge his grievance as no one can claim promotion as a vested right. In fact the Government, as already stated, has the plenary powers to organise or reorganise the department or to make shifts ands changes in postings and transfers of officers in order to streamline the system., The Honourable .Supreme Court has also in the case reported as 1984 SCMR' 740 held that promotion is a matter lying within the exclusive discretion of the competent Authority and no officer has a vested right therein.
Therefore, there is no dispute that the Government enjoys unfettered authority in regard to postings and transfers of Government servants as also the power of upgrading the post for appointment of a certain officer of higher grade against any post. Its was brought to our notice that the post of Director-General has been upgraded to BPS-21. The question, however, remains that how the appellant, who, according to his counsel, fully satisfies the conditions for promotion to the post of Director-General which has to go to the departmental candidates on the basis of their seniority, in terms of the rules issued on 2-4-1989, which provide that the post shall be filled by 100% promotion, was left out of consideration. Apparently the conditions of promotion seem to have been violated. The Government may have reasons for not promoting a person from amongst the departmental candidates as Head of the Department but then such an exercise of powers which harms the interest of a certain class of people, not being in consonance with the rules, is unlawful.
The appellant in terms of rules issued on 2-4-1989 should have been considered for promotion as Director-General but the Government, instead of considering him for promotion, acquired the services of some outsider for appointment as Director-General thereby infringing the provision of 100% promotion for the said post amongst the departmental candidates. Now that the Government has upgraded this post to BPS-21 about which we are not sure whether such an arrangement is temporary or permanent, the appellant, who claims promotion in the Department cannot be promoted as Director-General as it would mean double promotion from BPS-19 to BPS-21. It is not possible because no one can be given two promotions at a time. It is thus an inscrutable riddle for us as to how the appellant should be accommodated when his claim for selection/promotion to BPS-20 remains unchallenged and the post, of Director---General has been upgraded by the Government to BPS-21. The only course left for us now in the present situation is that the appellant's case for promotion be processed under the Rules and, if selected by the Central Selection Board, he may be promoted in the Department in BPS-20 by creating some post in that grade under some designation whatever the Government may like to assign to it or alternatively in some other Department by transfer, the arrangement by which he had originally joined the Department so that he could avail of the benefit of promotion which he has rightly claimed. However, as and when the post of Director-General is downgraded to BPS-20, at any stage, the same shall be offered to him.
7. In the result the appeal is disposed of as indicated above with no order as to costs.
8. Parties to be informed accordingly.
M. ILYAS LODHI (MRMBER).---I agree with the above.
RANA RIFAT SAEED (MEMBER):--According to recruitment rules issued vide Notification dated 2-4- 1989, the post of Director-General is in B-20 and is to be filled 100% by promotion from amongst the Directors (B-19) having requisite experience. Since the appellant did possess more than the requisite experience and service length in B-17/18/19 at the time of posting of present D.G. (Mr. Asad Mahmood AM B-21) vide Notification dated 24-7--1993, it was lawfully expedient and mandatory under relevant rules on the respondents' Department/Ministry to have considered the appellant for current charge/regular promotion as D.G. (B-20) through Secretary, Interior/Central Selection Board-II/competent authority. This had not been done by the respondent's Department/Ministry and the said Notification dated 24-7-1993 for posting Mr. Asad Mahmood AM had been issued. The learned counsel as well as the representative of the respondents Department had stated that the posting/appointment of the respondent No. 3 (Mr. Alvi) was in his own pay and scale in B-21 and it was personal to him, whereas the post of D.G, was in B-20 and had not been upgraded to B-21.
Respondent No. 3 (Mr. Alvi) had only been continuing as D.G. In his own pay and scale on purely temporary basis, because he was B-21 officer of the Police Group and the present posting was an ex cadre for him.
10. Therefore, in my own assessm ent, the appeal is to be accepted to the extent that the respondents Department/Ministry shall forward the case of the appellant to appropriate authority/Central Selection Board/Establishment Division within next two months for consideration of current charge/regular promotion as D.G. (B-20) and upon maturity/appointment as such, the respondent No. 3 i.e. The present incumbent who is an ex-cadre officer of B-21 of Police Group, shall be considered for appropriate appointment/posting by the respondent Department/Ministry/Establishment Division in B-21, whether as an independent Additional Secretary Incharge Registration Office or elsewhere, because the present post of D.G. (B-20)
Registration Office under the relevant rules belongs to 100% promotion quota of the appellant's cadre. Almost identical Appeals Nos. 236 and 237(R) of 1993, which were heard on 4-11-1993 have already been accepted/decided on similar lines by the Federal Service Tribunal.
ABDUL RAZZAQ A THAHIM (CHAIRMAN).-- Appellant Mr. Abdul Rashid is working as Director .In the Directorate General of Registration, Islamabad. He has filed this appeal in which he has prayed as under:-- "(a)The appellant may be considered for promotion to the post of Director-General, Registration (BPS-20) as per provisions contained in the notification dated 2-4-1989 which embodies the terms and conditions of service.
(b)In case he is approved for such promotion by the Selection Board and the competent authority, then the officer holding the post of Director---General, registration may be withdrawn and repatriated to the. Police Service of Pakistan."
The leading judgment has been initiated by learned Member Mr. S.M. Ishaq and he has concluded that the appellant's case for promotion to BPS-20 be processed under the Rules and if selected, he may be promoted to BPS-20 by creating some post in that grade under some designation or alternatively in some other department by transfer, as the present incumbent who is in BPS-21 has been posted as Director-General. Mr. M. Ilyas Lodhi, Member was agreed with the findings of Mr. S.M.
Ishaq, but Mr. Rana Rifat Saeed, Member has taken a different view. I have gone through both the judgments proposed to be delivered. The contention of the appellant is that under the Notification No.SR0.297(1)/89, dated 2-4-1989, the post of Director-General (BPS-20) is to be filled in 100% by promotion, and he being eligible, has been ignored and instead Mr. Asad Mahmood Alvi, an officer of Police Service of Pakistan in BPS-21, has been brought as Director-General by way of transfer.
Under the Notification SR0.297(I)/89, dated 2-4-1989, the post of Director-General (BPS-20) is to be filled in 100% by promotion from the Directors (BPS-19), failing that by initial appointment and failing that further by transfer. There is nothing on record to show that the appellant has been ignored for promotion due to adverse record and further that he was not eligible for promotion to hold that post. In case the appellant was not considered fit for promotion, the other option left to the authorities was to fill the post of Director-General through initial appointment by advertising the post and selection by FPSC and in case of failure to get a suitable hand, then appointment could be made by transfer, with the approval of the competent authority. The respondent department has taken the stand that it is the discretion of the Government to fill up a post and the learned Member Mr. S.M. Ishaq has made some observations, but when the rules are framed by the Government itself to fill up certain posts then the procedure laid down for filling up the posts has to be followed and, in my humble view, the appointment made otherwise than the prescribed manner cannot be termed as regular appointment/promotion but it is an ad hoc appointment which cannot continue for an indefinite period. The respondent department has also failed to produce any document to show that the post of Director-General has been upgraded to BPS-21 or any other mode has been prescribed therefore, rather than the existing rules. For the aforesaid reasons, I agree with the findings recorded by Mr. Rana Rifat Saeed, Member that the department shall forward the case of the appellant to appropriate authority/Central Selection Board within next two months for consideration for promotion as Director-General (BPS-20), on merits-cum-seniority, who is otherwise eligible for promotion as Director-General (BPS-20) under the rules.
ORDER OF THE TRIBUNAL By virtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the decision of the Tribunal shall be in terms of the opinion of the Chairman.