RANA RIFAT SAEED (MEMBER): --The appellant Muhammad Aslam had been working as Assistant Director (B-17) in the Directorate of Education with effect from 30-6-1985 and as per recruitment rules of 7-3-1990, the next above post of Deputy Director (B-18) was to be filled 50% by promotion and 50% by direct recruitment, provided failing. Promotion the post would be filled by direct recruitment and further failing, that by transfer. The learned counsel had stated that there were 4 posts of Deputy Director (B-18) in the Directorate of Education. So far none had been filled by promotion and all the incumbents had been appointed through direct appointment. He had referred to the impugned order dated 29-5-1993, whereby the respondent Department had transferred one Mr. Abbas, Headmaster F.G. Boys High School, Jhang Sayedan to accommodate him against the post of Deputy Director which never belonged to his cadre and line of promotion.
This was a case of extreme favour to M. Abbas and a mala fide to the appellant done by the respondent Department in utter disregard to the recruitment rules. The Notification, dated 29th May, 1993 reads as under :-- "Islamabad, 29th May, 1993 NOTIFICATION No.F.3-406/70(SA)FDE: Consequent upon his selection as Principal B-18 vide Ministry of Education Letter No.F.G.7/92 CEI, dated 26th May, 1993, Mr. Muhammad Abbas, Headmaster, F.G. Boys High School, Jhang Syedian is hereby posted as Principal, F.G. Boys Model School, G-9/4, Islamabad against a vacant post with effect from 26-5-1993 (AN) and transferred as Deputy Director, Federal Directorate of Education, Islamabad against a vacant post.
2. No TA/DA will be paid.
3. This issues with the approval of the competent authority.
2. The learned counsel had clarified that as far as the posting/appointment of M. Abbas, Headmaster (B-17) as Principal (B-18), F.G. Boys Model School was concerned, appellant had no grievance, because this posting/appointment was in line of cadre/promotion of M. Abbas. But as far as second portion of the Notification with regards to M. Abbas 's transfer as Deputy Director (B- 18), Federal Directorate of Education was concerned, appellant had a point of grievance, because this post of Deputy Director was not in line of cadre/promotion of M. Abbas, instead it was in line of cadre/promotion of the appellant. The respondent Department had given appointment/promotion to M. Abbas. As Principal, F.G. Boys Model School and then when there was no need to give second posting to Mr. M. Abbas, he had again been transferred as Deputy Director. This showed that M.
Abbas had been favoured by the respondent Department by giving him 2-way promotion/appointments and when at least there was no urgency/expediency in the public interest to transfer/post him as Deputy Director in the Directorate. This had resulted in a definite impact 'and blockade in way of promotion of the appellart who had even put in more than 5 years service as Assistant Director and had not been considered for promotion by the DPC/Deptt. The appellant had joined as Assistant Director (B-17) on 30-6-1985 and according to the relevant Rules of 7-3-1990, he after 5 years i.e. With effect from 30-6-1990 had become eligible for consideration of promotion as Dy. Director (B-18). But instead of considering the appellant for promotion as Dy.
Director under the Rules, the respondent-Department/Ministry had brought in M. Abbas from other cadre and posted him as Dy. Director in the cadre of the appellant. This was an ill action and mala fide done by respondent Department against the appellant.
3. The learned counsel Hifzur Rehman (on behalf of Advocate, Hafiz SA. Rehman), Director of Education (Mr. M.B. Cheema) and representative of the Ministry (Mr. M. Dauds Khan) who were present had stated that no doubt the recruitment rules provided for filling in the vacant post of Dy.
Director 50% by promotion and 50% by direct recruitment and the vacancy in question was meant for promotion; but the appellant had no relevant experience in the said discipline i.e. He was not qualified to hold the senior post. They had clarified that appellant being not qualified could not be appointed as Deputy Director, but in order to run the Directorate a person who held a Degree of 2nd Class MA. Or so was to be appointed and since M. Abbas held the prescribed qualifications, he had been transferred against this vacant post. They also confirmed that previously no incumbent had been appointed as Deputy Director through promotion and the * vacant post of Deputy Director in question definitely belonged to promotion quota share for which M. Abbas, Headmaster was only the suitable officer to be appointed through transfer and there was none eligible and qualified hand from the Assistant Directors.
(a)Upon an observation, whether the recruitment rules provided 2nd Class Masters Degree or any other specific qualifications for filling in the post of Dy. Director (B-18) through promotion from amongst the Assistant Directors (B-17) who possessed 5 years service in B-17 in the relevant field?
There was no satisfactory answer from the learned counsel and the representatives of the respondent Department and Ministry, because the qualifications of 2nd Class MA. Had been prescribed only for the post of Deputy Director, if it was to be filled through direct recruitment or failing through transfer.
(b)Upon another observation, whether the name of the appellant who was the senior most Assistant Director with effect from 30-6-1985 possessing more than 5 years experience in B-17 in the relevant field had been placed before the D.P.C. For consideration of the promotion according to recruitment rules? They had replied that although appellant was the senior most Assistant Director, but his name could not be placed before the D.P.C. For consideration of promotion against the vacant post of Dy. Director, considering that he was not qualified.
(c)There was another observation that if at all the appellant being the senior most Asstt. Director was not suitable for promotion then whether his second junior had been considered alongwith him by the D.P.C. For promotion or for rejection of his case? There was no answer from them.
(d)They were asked whether the vacant post of Dy. Director belonged to the line of cadre/promotion of M. Abbas (transferred by the respondent Department/Ministry) or to the fine of cadre/promotion of the appellant? They had stated that the vacant post belonged to the cadre and line of promotion of the appellant, but it was a stopgap arrangement to transfer M. Abbas as Dy. Director. .
(e)Learned counsel and the representatives were questioned why M. Abbas, Head Master (B-17) who was not eligible and relevant officer to hold the post of Dy. Director had been given 2-way promotions/appointments firstly as Principal (B-18), F.G. Boys Model School and secondly as Dy.
Director (B-18), Federal Directorate of Education, because it looked a case of extreme favours afforded to M. Abbas by the respondent Department/Ministry to transfer him as Dy. Director in violation of the relevant rules by blocking the way of promotion of the appellant? They could not give any justification and satisfactory answer for transfer of M. Abbas, as Dy. Director.
4. Under the aforementioned circumstances and after hearing the parties, it is established as under :-- (a)That the Notification dated 29-5-1993 in so far it was concerned with the transfer/appointment of M. Abbas against the vacant post of Deputy Director, Federal Directorate of Education was ultra vires of the rules, unlawful and void.
(b)That the respondent Department/Ministry had afforded favours to one Abbas by giving him 2- way promotions/appointments in B-18; firstly as Principal (B-18),' F.G. Boys Model School which was in his line of cadre/promotion; secondly as Deputy Director (B-18), Federal Directorate of Education which was in line of appellant's promotion/cadre.
(c)That name of the appellant who was the senior most Assistant Director (B-17) possessing more than 5 years experience in the relevant field alongwith other Assistant Directors, had never been placed by the respondent Department/Ministry before the D.P.C. For consideration of promotion against the vacant post of Deputy Director (B-18). Mala fide and it will of the respondent Department/Ministry against the appellant was evident, because it was the job of the D.P.C. To assess the suitability for promotion of the senior A.D s. As eligible or fit for promotion to the vacant post of Deputy Director under relevant recruitment rules of 7-3-1990 and not the job of the respondent Department/Ministry to assess/declare the appellant unsuitable and unfit for promotion.
(d)That there were 4 posts of Deputy Directors (B-18) which should have been filled, 2 by promotion and 2 by direct recruitment. Although there was a queue of Assistant Directors/eligible officers waiting for consideration of promotion, but so far no Deputy Director had been appointed through promotion. This was not understood how the Department/Ministry had ignored the recruitment rules by not considering the departmental candidates/A.D s. Panel for promotion and not appointing them against promotion quota vacancies of Deputy Directors.
5. Accordingly we conclude, set aside the second part of the Notification dated 29-5-1993 in so far it related to the transfer/posting of Mr. M. Abbas as Deputy Director, Federal Directorate of Education, being ultra vires and unlawful and accept the appeal to the extent that the respondent Department/Ministry shall consider the name of the appellant alongwith other eligible departmental Assistant Directors for promotion as Deputy Director within next two months and if there was nothing adverse in his service record, shall not ignore him for such appointment and with all consequential actions/benefits. No order for costs. Parties be informed.
JUSTICE (RETD.) ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---I fully agree with my learned brother Mr. Rana Rifat Saeed, Member who is the author of the judgment and concurred by Mr. S. M. Ishaq.
The impugned order, dated 29th May, 1993 clearly indicates that every time this has been done in haste. Mr. M. Abbas, respondent Headmaster was selected as Principal against a vacant post of F.G. Boys Model School, and by same order transferred to administrative side as Deputy Director in the Federal Directorate of Education against a vacant post. We have never seen in the service matters that a person is selected as a Principal (B-18) for a particular institution where he did not join, as in this case, as Principal, F.G. Model School, G-9/4, and by way of same notification is transferred as Deputy Director. It is not known whether any person has again been appointed as a Principal of F.G. Model School, G-9/4, but crux of the matter is that impugned notification by posting Principal against a post of promotee is ultra vires and violative of Policy rules. We put a direct question to Mr. Muhammad Daud Khan, Assistant Educational Adviser, Ministry of Education to assist us as under what circumstances and under what discipline, the appellant was not considered for the post of Deputy Director against a vacant post and against their quota. He did not reply satisfactorily and only submitted that his Advocate will be in a position to explain this situation. It is very sad that the experts working in the Ministry of Education are not rendering any assistance to the Tribunal which is the only Constitutional forum to safeguard the interests of the civil servants. It is suggested that the Secretary, Ministry of Education to constitute a High-Powered Committee of Educationist to look into the grievances of the Teachers (teaching/non-- teaching) in the light of their terms and conditions, who are being dragged into litigations. They belong to a noble profession and have to incur huge expenditure on litigation to seek their grievances. A copy of this judgment may be sent to the Secretary, Ministry of Education (by name and personal) for consideration.