RANA RIFAT SAEED (MEMBER): --The learned counsel had stated that the appellant (Javaid Qadeer Qureshi) had been appointed as Technical Officer (B-16) w.e.f. 13-4-1978 in National Training Bureau (NTB). He had been promoted as Assistant Director (B-17) w.e.f. 28-7-1981 and also given move-over to B-18 w.e.f. 1-12-1988. He had referred to a provisional seniority list of Assistant Directors (NTB) corrected upto 31-12-1986 and issued vide memo. Dated 13-4-1987, wherein the appellant/appellants and private respondents 4 to 7 were shown at following serial Nos. Appellants
(a) Javaid Qadeer Qureshi (Appeal No.366(R)/92)at serial 6
(b) Zafar Naeem Qarni (Appeal No.367(R)/92)at serial 10
(c) Nizamul Haq (Appeal No.376(R)/92)at serial 11
(d) Sohail Ahmad (Appeal No.377(R)/92)at serial 12 Private respondents
(e) Ashiq Hussain Khokhar (respondent 4)(Nil)
He was not shown against any seniority, because he was not then working as AD.
(f) Abdul Rehman Khan Rana (respondent 5) at serial 2
(g) Zaigham Hussain Asghar (respondent 6)at serial 5
(h) Juma Khan (Respondent 7) at serial 8
2. The learned counsel, while referring to up to date seniority list of Assistant Directors/Junior Instructors (B-17) issued on 7-6-1992, had given the seniority serial numbers of the appellants and the private respondents as under:-- Name Serial No.Date of appointment in Present scale.
(1) (2) (3)
Appellants Javaid Qadeer Qureshi 4 w.e.f. 1-6-1981 Zafar Naeem Qarni 5 w.e.f. 8-1-1986 Nizamul Haq 6 -do- Sohail Ahmad 7 -do- Private respondents Abdul Rehman Khan Rana (respondent 5)1 w.e.f.1-6-1978 Zaigham Hussain Asghar (respondent 7)2 w.e.f. 3-5-1978 Juma Khan (respondent No. 7) 3 w.e.f. 29-6-1980 Ashiq Hussain Khokhar (respondent 4) 1 of list of AD (non-technical)w.e.f. 24-2-1989 He had mentioned that respondent 4 who had been promoted as Assistant Director (B-17) as late as on 24-2-1989, had surprisingly been shown in this seniority list of 7-6-1992 under footnote as Assistant Director (non-technical) for which, under the relevant rules issued on 28-12-1983, there was no provision of any appointment/recruitment/promotion as Assistant Director (non- technical). As such his appointment/promotion as Assistant Director (non-technical) w.e.f. 24-2- 1989 was ultra vires and was not supported by the recruitment rules.
3. The learned counsel had elaborated at Bar that there were total posts of Deputy Directors (B-18) in the NTB on date of hearing and Sri according to the relevant rules were classified as under:-- S. No.Name of the post to be filled Name of the post from which to be filled.
3.Deputy Director (Tech.)/Principal/ Instructor (Grade-18)Assistant Director/Jr. Instructor (Grade-17)
6.Deputy Director (Admn.) (Grade-18)Assistant Director (Admn.)/ Assistant Director (Acctts.) (Grade-17)
Although as per above classification, the Department had not further sub--divided the number of posts of Deputy Directors (11) into as Deputy Director (Tech.) and Deputy Director (Adorn.) and promotion to these posts seas being done from amongst the Assistant Directors/Junior Instructors in order of seniority, because there was no distinction in the classification and strength in the posts of Deputy Directors (Tech.) vis-a-vis Deputy Directors (Adorn.) then and likewise, in posts of Assistant Director (Tech.) vis-a-vis Assistant Director (Adorn.)/Assistant Director (Acctts) etc. As to have been notified by the Department. This was the reason that the provisional seniority list corrected upto 31-12-1986 and issued on 13-4-1987 did not indicate such distinction/classification in strength of posts of Deputy Directors and also being a very junior respondent 4 (Ashiq Hussain Khokhar) had no mention of a place in this seniority list which had been compiled/circulated keeping in view the recruitment rules of 28-12-1983. In fact, later on an additional new post of Deputy Director in sequence of other existing Deputy Directors had wrongly been allocated (without any office order) as Deputy Director (Adorn.) in order to promote a very junior official i.e. Respondent 4 (Ashiq Hussain Khokhar) who had then been serving in B-16 and below and departmental action to promote him vide Notification dated 31-5-1-992 as Deputy Director (Adorn.)
(B-18) ignorning/superseding appellants who were far senior to him as Assistant Directors was an undue favour to respondent 4 and mala fide and unlawful action.
4. The learned counsel had mentioned that the appellant had made a departmental representation on 8-2-1992 against the seniority list issued on 7-6-1992 pointing out that preparation of seniority list of Assistant Directors/Junior Instructors (B-17) and then a separate seniority list for Assistant Directors (non-technical) was ultra vires and not supported by the relevant rules, as no office order or notification had been issued by the Department to make two sub-cadres as Assistant Directors/Junior Instructors vis-a-vis Assistant Director (non-technical).
The appellant had also submitted department appeal on 6-6-1992 challenging the seniority and promotion of respondent 4 as Deputy Director (Adorn.) with effect from 31-5-1992. Since there was no response from the Department, the appellant/appellants had submitted the instant appeal to the FST with the prayer as under:-- "It is, therefore, respectfully prayed that the appeal may kindly be accepted, all the posts of Assistant Directors may be held to be belonging to one cadre and by setting aside the separate seniority list of Assistant Directors and the consequent promotion of respondent No.4, respondents Nos. l to 3 may kindly be directed to prepare a combined seniority list of Assistant Directors and consider the appellant for promotion to the post of Deputy Director (B-18) on the basis of combined seniority list from the same date from which respondent No.4 was illegally promoted as Deputy Director with all back benefits."
5. The appellant had further submitted that according to the recruitment rules issued on 28-12- 1983, there was fear, apprehension and provision that this junior respondent 4 promoted as Deputy Director (Adorn.) would become entitled for promotion as Director (Technical) (B-19), because' this post of Director (Technical) could be filled in 100% by promotion from amongst the Deputy Directors/Principals/Instructors (B-18) with 12 years service in B-17 and above or 7 years service in B-18 and above for direct recruits.
"2.Director (Tech.)
(Grade-19)Deputy Director/Principal/ Instructor (Grade-18)12 years' service inGrade-17 and above or 7 years' service in Grade-18 in case of direct recruits in Grade-18.
The point the appellants were trying to make was that since for promotion to the post of Director (Tech.), all Deputy Directors including Deputy Directors (Adorn.) . Were eligible for consideration of promotion in order of their seniority and respondent 4 (Ashiq Hussain Khokhar) who had been made Deputy Director (much earlier than his senior ADs) by affording an undue favour and through mala fide action of the Department, he would get promoted much earlier than the appellants who, no doubt as Assistant Directors/Junior Instructors (B-17) were far senior to him (i.e. To respondent 4), should although have better professional chances of promotion as Director (Tech.) accrued on the basis of technical background, but according to clear cut provision of eligibility for promotion for any Deputy Director, including Deputy Director (Adorn.) who would become Director (Tech.) on basis of seniority. Therefore he pointed out that according to the rules, the method and procedure for promotion particularly for filing in the posts of Director (Tech.) and Deputy Director (Tech.) was defective, as any Assistant Director/Junior Instructor including Assistant Director (Adorn.)/Assistant Director (Acctt.) could be promoted as Deputy Director (Tech.)./Principal/Instructor (,Grade-18) and likewise any Deputy Director including Deputy Director (Adorn.) could be promoted as Director (Tech.), as this was clear from the said provisions of recruitment rules for promotion against the post of Director (Tech.) and Deputy Director (Tech.) indicated therein as under:-- 2Director (Tech.)
(Grade-19)Dy. Director/ Principal/ Instructor (Grade-18)12 years service in Grade-17and above.
3Deputy Director(Tech.) /Principal Instructor (Grade-18)Assistant Director/Junior Instructor (Grade-17)5 years' service in Grade-17.
6Deputy Director (Admn.) AssistantDirector 5 years' service in (Grade-18) (Admn.)/ Asstt. Director (Acctts.) (Grade-17)Grade-17 They explained that there was an inevitable confusion in the recruitment rules, because no technical officer could be promoted/appointed against Admin. Posts, whereas Admin. And Accounts Officers (B-17 and 18) could be promoted as Deputy Director (Tech.) and Director (Tech.).
Evidently the chances of promotion of the appellant(s) particularly vis-a-vis the respondent 4 or the Admin./Accts. Officers were restricted by the Department in order to provide a faster promotion to the Adorn./Acctts. Officers against senior Admn. Posts and even against senior technical posts.
This was clear injustice that promotion of technical officers had been mala fidely slowed down by the department and restricted against the senior technical posts only, whereas Adorn./Accounts Officers in addition to their promotions against the senior Admin/accounts posts had also been allowed promotions against senior technical posts. The learned counsel and the appellants, therefore, had contended that this hotch potch and confusion in the recruitment rules had been created by the department only to help respondent 4 through unjust, irrational and mala fide action. The clear example was that of promotion of respondent 4 as Deputy Director (Adorn.) w.e.f.
31-5-1992, while he was far junior as Assistant Director to the appellants. They had, therefore, pleaded that his promotion as Deputy Director was ultra vires to the rules and unlawful.
6. The representatives of the respondent-departments and the learned counsel appearing on behalf of respondent 4, had mentioned that the promotion of respondent 4 had-been done in accordance with the relevant rules and since he belonged to the adorn./accounts sub-cadre and he was the senior most Admn. Officer (B-16), he had been promoted as Assistant Director (Adorn.) w.e.f. 25-2-1989 and being senior most Assistant Director (Adorn.) promoted as Deputy Director (Adorn.) w.e.f. 31-5-1992 and there was no violation of the rules and undue favour done to the respondent 4. Other private respondents 5 and 7 did not support this contention of the representatives of the departments and the learned counsel for the respondent 4. The representatives and the learned counsel, while referring to the recruitment rules had interpreted and assured that the promotion particularly of the respondent 4 had been done against senior Admin. Posts and would be confined as such and Adorn./Accounts Officers would/could not in accordance with the real spirit of the rules be promoted against senior technical posts i.e. Deputy Director (Technical) and Director (Technical). This was rightly and precisely the intention, interpretation and working spirit of the department, as read out from the rules and in no way rules were to harm or restrict the promotion of Technical Officers vis-a-vis to provide faster promotion to Admin/Accounts Officers of the Department.
7. Under the aforementioned facts and after hearing the parties, it is established that the recruitment rules had not rationally and correctly been made, because an Admin/Accounts Officer can in addition to their promotion against senior Adorn./accounts posts can also get promotion against senior technical posts, whereas a Technical Officer (i.e. The appellants) can only get promotion against senior technical posts and not against other senior admin/accounts posts.
Evidently this is an inbuilt confusion in the recruitment rules of 28-12-1983 for which no proper/rational attention/action had been taken by the respondent-Departments to rectify/remove this inherent and inbuilt hotch potch and confusion, because this anomalous situation is clearly visible from the provisions of recruitment rules. Although as per interpretation and elaboration of the spirit of the recruitment rules, given by the representatives of the respondent-departments clearly indicating that no Admin./Acctts. Officer can/shall be promoted against senior technical posts; but this interpretation is not sufficient and supported by the recruitment rules and cannot be considered as rational/fully lawful, until and unless the rules are properly attended to, processed, mistakes/confusions rectified/removed and corrected properly, otherwise inevitably an Admin/Accounts Officer will be running much faster on the promotion ladder/cadre and simultaneously competing for promotion for both Admin. And Technical senior posts. Further, no clear order/notification was produced as to have earlier been issued/circulated by the respondent-department to show the separation of technical and Admin./Acctts-sub- cadres and posts. As such to allocate newly created post of Deputy Director to Admin. Side/sub- cadre and afford promotion to a very junior official (i.e. Respondent 4) firstly as Assistant Director (Adorn.) w.e.f. 25-2-1989 and then Deputy Director (Adorn.) w.e.f. 31-5-1992 was by no means a logical and rational action of the respondent-- Departments. The recruitment rules have been made and tailored by the Admin wing to suit/afford more benefits/faster and two-way promotions to Admin Officers i.e. To both to Admin. And technical senior posts, whereas for Technical Officers (including Admin. Officers) only to technical senior posts.
8. This is an anomalous and imbalanced situation of recruitment rules which do require thorough logical examination and overhaul before notifying/acting upon. For present fair and just options will be as under:-- (a)To create four and more supernumerary posts of Deputy Directors (preferably technical) w.e.f.
31-5-1992 to accommodate/promote appellants and pro forma respondents 5--7 accordingly, because they are ADs from 1978-86 and respondent 4 (Ashiq Hussain Khokhar) was AD from 1989; (whereas appellants and pro forma respondents 5--7 of ADS from 1978-86 have not been promoted as Deputy Director and respondent 4 (Ashiq Hussain Khokhar) favourably/mala fidely promoted as Deputy Director with effect from 31-5-1992).
(a) or (b)
(b)To revert respondent 4 (Ashiq Hussain Khokhar) as Assistant Director and (c)(i) To rectify mistakes and rationalise recruitment rules for affording equal/parallel chances of promotion to all Assistant Directors (Tech. And Admin. Etc.) as Deputy Directors.
(ii)To make/notify separate sub-cadres as Technical and Admin/Accts. At least from the post of ADs upwards by distinguishing/notifying the strength/number of the posts separately and clearly for each sub---cadre and Then consider/make their promotions on basis of seniority-cum---fitness through DPCs upto Deputy Directors and through CSB for Directors etc
9. Under the aforementioned facts and merits we accept the Appeals Nos. 366, 367, 376 and 377(R) of 1992 to the above extent and remand the cases to the respondent-department with the direction to accordingly take further actions within next four months. No order for costs. Parties be informed.