Appeal No. 236(R) /93 RANA RIFAT SAEED (MEMBER): --The learned counsel had mentioned that the appellant, Ch. Israrul Haque, had joined the Department as Investigator (B-16) through FPSC w.e.f. 22-70-1971. He was appointed as Research Officer (B-17) in the Ministry of Industries through FPSC w.e.f. 8-3-1976. Later on he had again joined respondent-Department i.e. NCRD as Deputy Director (B-18) through FPSC w.e.f. 20-8-1985 and then he had been promoted as Director B-19 w.e.f. 6-7-1988.
2. The learned counsel had brought out at bar that, although Recruitment Rules issued vide Notification dated 26-3-1984 provided for appointment to the senior post of the D.G. (B-20) 100% by promotion, failing through direct recruitment and further failing through transfer; but respondent No. 4, Mr. Abdul Hameed Naqshbandi, Joint Secretary (B-20) of the Secretariat Group had been transferred/appointed to hold the post of D.G., NCRD, under section 10 of the Civil Servants Act, 1973 vide Notification dated 27-3-1993. The appellant had made a representation on 3-4-1993 contesting the appointment of respondent 4 as mala fide, unlawful and violative of the relevant Rules. But this was not responded by the Department. Consequently he had submitted the instant appeal on 1-8-1993 within the prescribed time limitation.
3. The learned counsel had clarified that the respondent Department vide their comments had put in the only objection that the appellant did not possess the prescribed length of service and as such he could not be considered eligible for promotion/appointment as D.G. (B-20) in the NCRD.
But according to O.M. Dated 21-1-1981, as contained in 1989 ESTACODE at pages 289 and 290, one should have 17 years service in Grade-17 and above for being eligible for appointment/promotion to Grade-20 post, provided that where initial appointment takes place in Grade 18 and 19 and length of service for promotion to higher Grade (B-20) will be as 12 years in Grade-18 and above or 5 years in Grade-19. However, service rendered by an individual in B-16 or below will also be countable for making length of service as equivalent to Grade-17 by dividing by 2 or 4 the service rendered in Grade-16 or below respectively. He had clarified and established that both the appellants possessed the requisite length of service in accordance with the instructions of the Establishment Division and were eligible for consideration for promotion/appointment to the post of DG (B-20). Since the appellant had joined the Government in B-16 with effect from 22-7-1971 and in B-17 with effect from 8-3-1976, he had completed more than 17 years equivalent to B-17 service uptill the date of Notification/appointment of respondent 4 as DG with effect from 31-5-1992 on additional charge basis and under section 10 till further orders with effect from 27-3-1993 with counting the service in B-16 and dividing by 2.
Appeal No. 237(R)/1993:--Similarly the co-appellant, Zahur Ahmad Chaudhry, was appointed as Project Manager (B-17) in the IRDP, Government of Punjab w.e.f. 17-1-1974 had also completed length of service of 17 years in B-17 and equivalent for consideration of appointment/promotion to the post of DG, NCRD (B-20) upto the date of Notification/appointment of respondent 4 with effect from 31-5-1992 as additional charge and under section 10 till further order with effect from 27-3- 1993, without giving him the benefit of B-16 service rendered from 1-9-1972. He had stated that it was mala fide, unjust and unlawful under the relevant rules to ignore the appellant from consideration of promotion to the post of DG, NCRD (B-20) and instead of transfer/appoint respondent 4 under section 10 of the Civil Servants Act, 1973 with effect from 31-5-1992 with additional charge and with effect from 27-3-1993 under section 10 till further orders.
5. They had prayed for the acceptance of the appeals, for setting aside the order of transfer/appointment of respondent 4 as DG, NCRD being unlawful & violative of the rules and instead for consideration of the appellants for promotion/appointment to the post of DG, NCRD (B- 20). Respondent ministry should have considered the appellants i.e. Departmental officers (B-19) for assigning current/acting charge or regular promotion as DG, NCRD with effect from 1-6- 1992/27-3-1993.
6. The learned counsel and .The representative of the respondent Department had only submitted that the appellants could not be considered eligible for promotion/appointment as DG, NCRD (B- 20), as they had not completed the requisite length of service by then. With reference to the instructions, as contained in 1989 ESTACODE, at pages 289 and 290, the representative of the Establishment Division, Mr, Zakaullah Jan, Section Officer, had confirmed that according to the instructions and dates of joining the Government service by the appellants in B-16 and B-17, they possessed more than the required length of service for consideration of promotion/appointment to B-20 post and these instructions might not have been seen by the respondent Department and ignored the appellants for such consideration.
7. Under the aforesaid circumstances and after hearing the parties, we find that the respondent Department has not been able to make out the case to convince the Court for justification in making the temporary appointment of respondent 4 as DG, NCRD on additional charge basis w.e.f.
31-5-1992 and under section 10 w.e.f. 27-3-1993. It has otherwise been established through facts and instructions contained in 1989 ESTACODE at pages 289 and 290 and as confirmed by the representative of the Establishment Division that both the appellants possessed the requisite length of service for consideration of promotion/appointment to the post of DG, NCRD (B-20), but they have unlawfully been held from such consideration through an unjust and mala fide action of the respondent Department. We accordingly accept the appeal, set aside the order/Notification dated 27-3-1993, direct the respondent Ministry to consider/assign current charge to the appellant being senior officer in B-19 at the HQ to the post of DG, NCRD and forward his case within one month along with other eligible officers to the Establishment Division/CSB-II for consideration of promotion/appointment as DG, NCRD on regular basis.
8. Other identical appeal No. 237(R)/1993, by Zahur Ahmad Chaudhry, is also accepted to the extent that respondent Department shall also forward/include his name in the panel along with his senior colleague i.e. Ch. Israrul Haque, to the Establishment Division/CSB-11 for necessary consideration of promotion/appointment as DG, NCRD.
9,No order for costs. Parties be informed, ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --I have gone through the judgment initiated by my brother Mr. Rana Rifat Saeed and I am in full agreement with him that under the Recruitment Rules, recruitment to the post of Director-General (B-20) is to be made by promotion, provided that failing promotion, a post shall be filled by direct recruitment and failing that by transfer and unless a departmental candidate is considered unfit for promotion, then the question of direct recruitment or transfer would arise. From the arguments made by the departmental representative of the Establishment Division, it has become crystal clear that both the appellants are qualified to be considered for promotion as Director-General (B-20).I would, therefore, direct the respondent department to consider the cases of both the appellants, in accordance with law, for promotion as Director --General (B-20). With regard to current charge arrangement, I do not agree with my learned brother to the extent for setting aside the current charge Notification, as it is a stop-gap arrangement as department can take action in these cases according to Rules. Both the appeals are allowed to the extent indicated above.