RAJA BASHIR AHMAD KHAN (CHAIRMAN): --Doctor Khawaja Mushtaq Ahmad, Poultry Development Officer, Department of Animal Husbandry, District Muzaffarabad, by way of this appeal has assailed the Notification No. Admin/A-5(6)/S.O.-V/92, dated 19-11-1992 whereby the appointment of respondent No. 4 Mr. Malik Maqsood Ahmad, was made against the newly upgraded post of Deputy Director Planning, Development and Evaluation in his own pay and scale.
2. The case of appellant is that he was appointed, as Veterinary Officer in Scale B-17 on 9-1-1975.
Respondent No. 4 was appointed Planning Officer on 9-3-1982 and is, therefore, junior to him by at least seven years. The post -of Statistical Officer was created in the year 1980 in the Department of Animal Husbandry. Appellant acquired additional qualification of MA. Economics with a view to have appointment against this post and for the purpose he requested for appointment against the post but respondents Nos. 1 to 3 rejected his request and appointed respondent No. 4 who was MA.
Economics third division without specialisation in the subject of Statistics: The appointment of respondent No. 4 against the post of Planning Officer on 9-3-1982 was made in violation of the rules since the respondent No. 4 did not possess the requisite educational qualifications. It was necessary to order his removal from the post.. The name of the post was changed from Statistical Officer to Planning Officer so as to give some protection to him. The post of Planning Officer B-17 was upgraded as Deputy Director Development, Planning and Evaluation B-18 and respondent No. 4 who did not possess the requisite educational qualifications even for the post of Planning Officer was appointed against, the said post vide impugned Notification No. Admin/A-5(6)/S.0-V/92, dated 19-11-1992. The rules for the upgraded post have not so far been framed and the rules of the Department of Animal Husbandry of the Punjab on the basis of parity shall be applicable. The basic qualification for this post is DVM. Appellant has been performing his duties against the supervisory post at the District level and was a fit person for appointment against the upgraded post. Appellant filed a review petition before the Government which still awaits decision. Appellant after waiting for statutory period of ninety days has filed this appeal for cancellation of the impugned notification.
3. The respondents have denied the facts stated in the memorandum of the appeal and have also pleaded that appellant has no locus standi to prefer this appeal.
4. We have heard the learned counsel for the respondents. Respondent No. 4 has also filed written arguments. Appellant, on his request was allowed to argue his case although learned counsel for the appellant was present in the Court.
5. The appellant during the course of his arguments abandoned major portion of his appeal relating to qualifications and appointment of respondent No.4 as Statistical Officer in 1982. The reason was very simple. Respondent No.4 was appointed Planning Officer on 9-3-1982 on the recommendations of Public Service Commission. This appointment remains unchallenged so far and appellant had no option but to give up his case so far it relates to the initial appointment of respondent No. 4 and also he could not question the qualifications for the said post at this late stage.
6. The appellant was at pain to take upon himself to canvass that the post of Planning Officer having been upgraded and converted into the post of Deputy Director Planning, Development and Evaluation falls in the categories of those posts which are being held by the Deputy Directors in the Department of Animal Husbandry and as is the case in respect of other posts of Deputy Directors the civil servants duly qualified should have been considered for promotion against the upgraded post. It was also argued by the appellant that in Punjab persons holding the post of Deputy Director Planning, Development and Evaluation should be BVSc/B.Sc. (AH)/DVM from the recognised University and the same method should be adopted in Azad Kashmir on the principle of parity with the Punjab.
7. The arguments and the counter-arguments on behalf of the parties could be considered when respondent No. 4 was appointed by promotion on the upgraded post and Notification to that effect was issued by the Government. The post was upgraded by the Government and it was pre-- conditioned that this post would be regulated under the Rules known as the Upgradation of Posts Rules, 1984. The Rules are reproduced below: -- AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT 'MUZAFFARABAD'
Dated the 15th December, 1984.
NOTIFICATION No. S&GAD/JS/1-A/1138-1238/84.---In exercise of the powers conferred by section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the Government is pleased to direct that the process of upgradation of posts shall be regulated by the following Rules, namely:-- (1)These Rules may be called the Upgradation of Posts Rules, 1984.
(2)Upgradation of a post shall imply the abolition of the existing post and creation of any new post in the higher grade.
(3)Upgradation of a post shall not mean automatic upgradation of its incumbent.
(4)Appointment to the upgraded post shall have to be made in the manner prescribed for that post.
(5)If a post is upgraded with immediate effect the incumbent shall be left without any post in his grade until he is approved for appointment to higher grade. Therefore, while sanctioning upgradation of the existing posts, it shall be clearly provided in the sanction letter that upgradation of the post would take effect from the date the post is filled by a person in the higher grade. Until the existing incumbent is formally appointed to higher grade the post and the incumbent would continue in lower grade.
(Sd.)
(Choudhry Muhammad Latif), Joint Secretary Services.
No. S&GAD/JS/1-A/1138-1238/84, dated the 15th December, 1984.
Rules 2 and a in the present case are relevant. The upgradation of post under Rule 2 implies that the original post shall stand abolished and a new post in the higher grade shall be created. The Notification dated 17-11-1992 had the effect of abolition of the existing post in B-17. The incumbent of the existing post respondent No. 4 after this Notification was left without any post and some arrangement had to be made to accommodate him and continue in service. Rule 5 has been framed to meet this kind of situation. It has been provided in the rule that until the existing incumbent is formally appointed to higher grade the post and the incumbent would continue in lower grade. In the spirit of the rule the Government has approved the appointment of respondent No.4 in his own pay and scale. The appellant could only question the appointment of respondent against the upgraded post when he is formally appointed by the Government satisfying all the requirements of appointment under the Civil Servants Act and the Rules made thereunder. In absence of usual process of appointment by promotion the appellant has no cause to approach this Tribunal. Viewing the case from this angle it can be held that the appellant is not an aggrieved civil servant in terms of section 4 of the Azad Jammu and Kashmir Service Tribunal Ad, 1976: We are of the view that the impugned Notification has been issued strictly in compliance with the Notification under which the post was upgraded.
8. The seniority list appended with the appeal shows that the post of Planning Officer falls under the category of non-Technical Gazetted Officer B-17 Administration whereas the appellant belongs to category of Officers of Technical Branch. The seniority list of appellant and other Doctors was issued under No.3281-97/hay noon/87, dated 9-7-1987 and the seniority list of respondent No.4 and other Officers belonging to Administrative Branch was issued under No.3300-3352/87, dated 9-7- 1987. The seniority list of appellant and respondent is not common. The appellant has, therefore, no locus standi to challenge the Government actions in respect of any matter, which relates to the non-Technical Administration Branch. The name of the appellant in the seniority list of Veterinary Doctors of Technical Branch is entered at Serial No. 16 meaning thereby that as many as 15 Officers of his department are senior to him. In case this post is required to be flied up by any of the Officers of Technical Branch, the senior most Officer shall be considered for the appointment for this post if the rules permit to do so. The appellant has, therefore, no locus standi to file this appeal and invoke the jurisdiction of this Tribunal.
9. The end result is that this appeal is devoid of any force which is hereby dismissed. The parties shall bear their respective costs.