RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This appeal is directed against the Notification No.S&GAD/A-I(13)/5/92, dated 12-5-1992 whereby as many as 11 Officers were promoted in Grade B-20 as Secretary to Government from the dates of their appointment as such.
2. The facts briefly stated in the memorandum of appeal are that the appellant is in grade B-20 since 1988. He was appointed Director-General, Ghulam Abbas Institute of Medical Sciences and also Additional Secretary, Health on 18-2-1992. This Notification was amended by Notification dated 22-2-1992. These Notifications were further clarified vide Notification No. Admin/H-1-(26) /S.O.- III/90, dated 24-2-1992.
3. The Government enforced Azad Jammu and Kashmir Secretary Service Rules, 1992 on 24-2-1992.
The appellant was qualified to be promoted against one of the posts of Secretaries to the Government on the basis of his qualifications as Head of an Attached Department and also being holder of the post of Additional Secretary, Department of Health. The Government considered eleven Officers namely: S. Sajid Hussain, Professor Abdul Latif Ansari, Raja Naseem Akhtar Khan, Muhammad Ilyas Sulari, Khawaja Muhammad Usman, Ch. Muhammad Rashid, Ali Asghar Awan, Ch. Muhammad Latif, Sardar Muhammad Abdur Rashid, Raja Muhammad Altaf Kiani, and Sardar Riaz Ahmad Khan for the posts of Secretary to Government. All the above-named officers were holding the posts of Secretary to Government and as such they were approved by the Selection Board. The Selection Board did not consider the case of appellant for the post of Secretary to Government. He, therefore, lodged a review petition to the Government. The Government realised that the case of appellant was of sound nature. Therefore, in order to deprive the appellant from his legitimate claim the Government withdrew the Notifications, dated 22-2-1982 and 24-2-1992 vide Notification dated 8-6-1992. The result was that the appellant was removed from the post of Director-General of Ghulam Abbas, Institute of Medical Sciences. The appellant, however, is still holding the post of Additional Secretary, Health and is qualified and eligible to be promoted as Secretary B-20.
4. Notices were issued to respondents to appear before the Tribunal and put their defence against the claim of the appellant. Respondents failed to put their appearance before the Tribunal despite being duly served and having notice of the present proceedings before this Tribunal. The proceedings were ordered ex pane against all respondents on 7-2-1993. Raja Muhammad Hanif Khan, Advocate on 14-4-1993 appeared on behalf of respondent No. 1 and stated that he was appointed Government Advocate in this case and written objections would be filed on the next date. The next date of hearing fixed was 14-4-1993, The learned Advocate appeared on that date and stated that he had not received any direction from the Government to appear and plead this matter on its behalf. He was, therefore, not in a position to defend respondent No. 1 in this appeal.
The ex parte proceedings were maintained. In the meantime the appellant submitted an application on 6-4-1993 wherein he prayed for striking off the names of pro forma respondents.
The statement of appellant's counsel Mr. Tabassum Aftab Alvi, Advocate was also recorded. The learned counsel stated that no relief was sought against pro forma respondents and their names be struck off from the title of appeal. The application was ultimately granted and the names of pro forma respondents were ordered to be struck off by the interim order dated 25-4-1993. The case was being adjourned for ex parte arguments from time to time. Ch. Nisar Ahmad Nisar, Section officer appeared on 10-8-1993 who submitted an application for setting aside ex parte proceedings. Sardar Rafique Mahmood Khan, Advocate appeared on 30-8-1993 on behalf of respondents. The application for setting aside ex parte proceedings was under consideration and arguments were to be addressed on the application by the counsel for the parties on 21-10-1993.
Sardar Rafique Mahmood Khan, Advocate on this date got recorded his statement that he relied upon the comments of the Department which have already been placed on the record. Thus on behalf of respondent No. 1 in reply to the facts stated in the memorandum of appeal the respondent has relied on the comments of Services and General Administration Department dated 10-7-1993.
5. We have heard the learned counsel for the parties and have gone through the record.
The appellant bases his claim to be considered for appointment as Secretary to Government on the grounds that he was Head of the attached Department as Director-General Institute of Medical Sciences and as Additional Secretary, Health Department. As for the first ground is concerned the point which is to be resolved is as to whether the appellant as Director---General or Project Director, as the case may be, falls under the category of Head of an attached Department. The learned counsel for the appellant in support of his contention has relied on entry at Serial No. 15 relating to the Health Department of Schedule VII Part A annexed to Azad Jammu and Kashmir Rules of Business, 1985 and Serial No. 33 of Schedule IX. These two entries are as under:--
15. Health Department(i) Director, Health Services.
(ii)Project Director Institute of Medical Sciences.
(2)
33. Director, Ch. Ghulam Abbas, Institute of Medical Sciences.
7. From these two entries the learned counsel submits that in Schedule VII .The Project Director, Institute of Medical Sciences has been placed separately alongwith Director Health Services meaning thereby that Project Director of Institute of Medical Sciences is holding the position of the Head of the Department independently as is the position of Director Health Services and in Schedule IX at Serial No. 33 the Project Director of Institute has been shown alongwith those officers who are holding the posts of Heads of the attached Departments. Director Heath Services has been shown at Serial No.11 of this Schedule and, therefore, entries at Serial Nos. 11 and 33 prove that Institute of Medical Sciences is an independent attached Department of the Department of Health.
The Services and General Administration Department in para. 2 of its comments have stated that according to Schedule No. I of Rules of Business at Serial No. 9 the Health Directorate has been shown as attached Department and the Head of Health Directorate is the Director of the Health Services. The Rules of Business have been amended and Schedules I to IX have been substituted by Schedules I to X. Schedule I of the Rules of Business contains the list of departments. The Health Department has been entered at Serial No. 15 which is reproduced below:- "15. Health Department 1. Health 1. Director Health Services."
In this Schedule Ch. Ghulam Abbas, Institute of Medical Sciences has not been shown as an attached Department. Naturally under column 4 relating to Heads of the attached Departments, the post of Project Director, Institute of Medical Sciences does not exist. Schedule VII contains the list of cases relating to the appointments, promotions, posting and transfers to be submitted to the Prime Minister. In this list the appointment of Director, Health Services and Project Director, Institute of Medical Sciences is to be made under the orders of the Prime. Minister. The fact that the appointment etc. Of Director, Health Services and Project Director are to be made by the Prime Minister does not prove that the Project Director is Head of the attached Department as is the case of Director, Health Services. In Schedule IX the Director, Institute of Medical Sciences has been placed as Officer of Category I alongwith almost all other Heads of the attached Departments. This Schedule is annexed to sub-rule (5) of Rule 44 to Rules of Business which is meant to lay down the powers of various administrative authorities. The placing of Project Director, Institute of Medical Sciences alongwith the Heads of the Attached Departments including Director, Health Services does not mean that Project Director enjoys the status of Head of attached Department. Schedule IX is restricted to exercise of administrative powers by Officers shown in the Schedule in accordance with the provisions of Azad Jammu and Kashmir (Civil Servants) Delegation of Powers Rules, 1981 and this Schedule has no relation with Schedule No.1 which relates to the Secretariat Department, attached Departments and the Heads of the attached Departments.
8. From the above discussion it is clear that appellant does not fall under the category of Head of an attached Department. He, therefore, cannot claim consideration of his appointment as Secretary to Government on this ground.
9. Appellant has stated in para. 2 of memorandum of appeal that he is an Officer of Grade B-20 and is holding the post of Additional Secretary, Health Department. In para. 2 of the written comments of the Department of Services and General Administration it has been stated that appellant has been performing his duties as ex officio Additional Secretary, Health. Appellant was appointed as Director-General/Medical Superintendent, Institute of Medical Sciences vide Notification No. Admin/H-1(26)/S.0-III/90 dated 18-2-1992. This Notification was amended vide No. Admin/H-1(26)/S.O.III/90, dated 22-2-1992. It was ordered that Mr. Atta Elahi Abbasi would continue to hold the post of Additional Secretary, Health and Dr. Muhammad Arif Shall perform the functions of ex officio Additional Secretary, Health. The Notification dated 22-2-1992 was amended to the extent that Mr. Muhammad Arif till further orders shall perform his functions as Additional Secretary, Health No. 2.
10. From the above-stated facts it becomes clear that the appellant has been an Additional Secretary Health since 18-2-1992 which post he is still holding.
11. The appellant has abandoned his superior claim against pro forma respondents. It is not possible and also fair to consider the comparative merits of the appellant and original pro forma respondents.
12. The promotions to the various posts in Civil Services are regulated b) section 8 of Civil Servants Act, 1976 which is reproduced below:-- "8. Promotion.--(1) A civil servant possessing such minimum qualification as mad` be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in any higher grade of the service of cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed.
(a)In the case of a selection post, on the basis of selection on merit; and (b)In the case of non-selection post, on the basis of seniority-cum-- fitness."
The first condition for promotion to a post is the eligibility of the person being considered for promotion. A civil servant shall be eligible for promotion who possess minimum qualification as may be prescribed for the purposes of promotion to a post referred to in subsection (1) of section 8 of the Act. The post may be either a selection post or a non-selection post. The post of Secretary to Government has been declared as a selection post under the Azad Jammu and Kashmir Secretaries Service Rules, 1992. The method of appointment to the said post is as under:-- "2.4. The post of Secretary shall be filled by: (1)Selection on merit and suitability for responsibility from the following groups:-- (a)By transfer of Officer holding the post of Head of an attached Department in BS-20 and Commissioners, or equivalent of Management Group.
(b)By promotion from amongst Officers holding the post of: (i)The Head of Department in B-19.
(ii)Additional Secretaries (including Law Department) and Officers of BS-19 in the Secretariat and Management Group.
(iii)Deputy Inspector-General of Police.
(2)The transfer for ex officio appointment of a Judge of High Court or an Officer of equivalent status, in the case of Secretary, Law and Parliamentary Affairs."
Sub-clause (2) of clause (b) of sub-rule (1) to Rule 4 of the said Rules makes Additional Secretaries eligible for promotion as Secretary. The learned counsel for respondents has argued that appellant is not Additional Secretary but has been appointed as ex officio Additional Secretary Department of Health and is not eligible to be considered for promotion as Secretary to Government. On the other hand the learned counsel for. The appellant meets this argument by submitting that ex officio holder of an office is as good Officer of the Department as the one holding the post. It is not the post but the functions which are being performed by the holder of the Office.
13. It is not the name of a particular post but the functions which are being performed by the incumbent of the post. In our opinion for the purposes of abovementioned Rules, Additional Secretary and the ex officio Additional Secretary fall in the same category. Appellant when appointed Director---General/Medical Superintendent of the Institute on 18-2-1992 was also given additional charge of the post of Additional Secretary, Health. This Notification was amended and the appellant was declared ex officio Additional Secretary, Health (Financial and Development Affairs). This Notification was again amended on 8-6-1992 and appellant was appointed Additional Secretary, Health No. 2. The meeting of the Board was held on 20-a-1992 and the appointment of the pro forma respondents was made on 12-5-1992. For the purposes of these dates the Notification No. Admin/H-1(26)/S.O.-III/90, dated 22-2-1992 is relevant. Under this Notification appellant was performing his functions as ex officio Additional Secretary, Health. Appellant, being holder of and performing functions against the post of Additional Secretary, Health and was eligible for promotion as Secretary to Government.
13-A. The Services and General Administration Department while submitting the panel of Officers to Selection Board No. 1 on 12-5-1992 nominated the following Officers for selection for the posts of Secretary to Government B-20:-- From the perusal of this panel it appears that Principal of a Degree College, Project Director Cadet College Pallandari, Additional Commissioner Development, Additional Secretary Animal Husbandry, Additional Secretary Forests were also included in the working paper. The appellant did possess the required eligibility to be considered for the post. The Department has not stated any cause to drop the name of appellant who was otherwise eligible to be considered for the said post.
14. We have already stated that the names of pro forma respondents-were struck off on the application of the appellant. The appellant has prayed that the Notification dated 12-5-1992 may be amended and appellant may be promoted on the post of Secretary to Government with effect from 12-5-1992. We could only grant this prayer if all the incumbents of the posts of Secretary to Government were before us and after considering comparative merits of the appellant and other Officers, we could pronounce a proper verdict in accordance with the law on the subject. The abovementioned relief in the present circumstances cannot be granted. However, we feel that appellant was eligible for promotion as Secretary to Government. He has not been considered for the promotion to the said post and would like to give relief to the appellant that his claim for promotion for the post of Secretary to Government shall be considered by the Selection Board concerned if there is any vacancy of Secretary to Government available in future.
15. The result of the above discussion is that the appellant succeeds in his appeal to the extent indicated above. We, therefore, accept this appeal to the extent that the Selection Board shall consider the case of the appellant for his promotion to the post of Secretary to Government if and when there is a vacancy of Secretary to Government available in the Secretariat in future. No order as to the costs.