MUHAMMAD ASLAM, MEMBER-II. This is an appeal from Mr. Jawad All Khan. Superintendent, Govt.
Printing Press, Punjab, Lahore, requesting lor issuing a direction to respondents No. 1 & 2 to consider the appellant for promotion and appointment as Controller, Printing and Stationery Department, Govt, of the Punjab. Lahore. The appellant has stated that the post of Controller, which fell vacant in 19S3 had to be filled up from amongst the eligible persons from within the Printing and Stationery Deptt, under the rules, but instead of this, the said post was tilled by transfer of an officer front outside the department. Later on, the incumbent of the said post was transferred and another person was likewise posted. In view of this the name of respondent No. 3 was struck of but the incumbent controller remained a party to the appeal by virtue of his official designation. Finding no response to the departmental representation made by the appellant on 27. 12.1992, he filed the present appeal before this Tribunal on 1.4.1993.
2. The appellant has stated that he was appointed in 1980 as Superintendent, Govt. Printing Press on selection through the Punjab Public Service Commission. Rule 5-A of West Pakistan Printing and Stationery Service Rules, 1962 (hereinafter called the recruitment rules) amended from the to the, provides for appointment to the post of Controller as follow:- "5.- Method of recruitment- Recruitment to Class-1 Service shall be made as follows:
(a) In the case of the post of Controller by selection on merit from among members of Class-I Service, seniority being considered only in the case of officers of practically the same standard of merit.
Provided that where no suitable member of Class-1 Service is available for appointment to. The post, the post may be filled at the discretion of Government:-
(i) by initial recruitment: or
(ii) by transfer of a suitable officer serving in any department of Govt, other than the West Pakistan Printing and Stationery Department."
3. The appellant contends that he is the senior most eligible officer in Class- 1 Service, referred to in rule 5 above, and has therefore, to be considered for appointment as Controller, under the said rule; that respondents No. 1 & 2 were under statutory obligation to consider him for promotion as Controller; that the said respondents filled the post of Controller, in violation of the said rule, by transfer of an officer who belonged to Ex-PCS cadre; that the method of transfer for appointment to the said post could only be resorted to after taking a decision that the appellant was' not a suitable person and that such a decision on the suitability or otherwise of the appellant has not been taken sofar.
4. The case was argued by the counsel for. The appellant and Learned DA on behalf of respondents.
There is no dispute about applicability of rule-5 of the service rules mentioned above for making appointment to the post of Controller, nor it has been denied that the appellant belongs to the service which the said recruitment rules apply. The appellant is admittedly the senior most officer in the said service.
5. The respondents have contested the appeal on the grounds:- That the present appeal does not lie before this Tribunal as per clause (b) of proviso to section 4(i) of the Punjab Service Tribunal Act, 1974.
That Ex-PCS officers had been posted as Controller from 1983 onwards and the appellant did not object till Feb. 1992 and as such the appeal is1 not maintainable.
That the appellant has not exhausted the departmental forum for making appeal to the higher authority.
That promotion cannot be claimed as of right under rule 9(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules. 1974 (hereinafter called the service rules).
That the post of Controller can be filled by transfer under Section 9 of the PCS Act, 1974 read with clause (ii) of proviso under rule 5(i) of the recruitment rules.
That in some ACRs, the appellant was rated as average and not fit for promotion.
That the post of Controller is a selection post and Govt, has discretionary power to fill the post either by initial recruitment or by transfer of a suitable officer, serving in any department of Govt.
That the representation of the appellant was considered in consultation with the SGA&I Deptt, and filed not tenable.
6. The provision of the PCS Act, 1974 the service rule and recruitment rules mentioned above, including those referred to by the appellant as well as the respondents have been perused. The relevant provision of Act, 1974 relied upon by the respondents challenging the jurisdiction of this Tribunal are in clause (b) proviso to section 4, as under:- "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade".
This provision excludes the jurisdiction of the Tribunal in determining fitness or otherwise of a person for appointment and promotion and posting to a particular post. However, it does not exclude the jurisdiction of the Tribunal in dealing with such terms and conditions of service of a person as relate to his eligibility for. And his right to be considered for promotion to, a post, in accordance with the prescribed method. Similarly, the manner of filling up a civil post is also a term of service where the relevant rules relating to the appointment to the post make him eligible for such appointment. The terms and conditions of service of a civil servant, according to Section-III of PCS Act, 1974, shall be as provided in the said Act and the rules. Section 4 of the said Act provides the statutory basis for appointment to civil posts as under:- "Appointment to a civil service of the province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf".
The right of a civil servant to be considered for promotion is enshrined in section 8(I) to PCS Act 1974, as follows:- "A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a (higher) post for the the being reserved under the rules for departmental promotion in the service or cadre to which he belongs".
Similarly, Rule 14 of the Service Rules provides as under:- "All persons holding posts in the same functional unit who possess the minimum qualifications and experience prescribed for a higher post reserved for departmental promotion, shall be ^eligible to compete for promotion in the manner and subject to the conditions as may be prescribed".
It would be seen that these provisions relate to the manner of making appointment to civil posts as well as the terms and conditions for appointment by promotion or transfer and the eligibility of civil servants for such appointment.' On the other hand, the exclusion clause of the PCS Act, 1974 referred, to above relates to the determination of fitness or otherwise of a person to hold a particular post. The distinction between eligibility and fitness has been highlighted by the learned Supreme Court in Civil Appeals No. 1266 to 1268 of 1990 (PLD 1994 SC 539) whereunder it was held that the question of eligibility which is a term of Service has not been excluded from the purview of the jurisdiction of the service Tribunal while the question of fitness of a person or whether he has been rightly selected or not selected on account of fitness or otherwise to hold a particular post or to be promoted to a higher post has been excluded by the PST Act, 1974. Since the present appeal relates to the terms and condition of the appellant for considering him for the post, this Tribunal is competent to entertain the same. This Tribunal is also competent to examine the manner of filling up the post of Controller, or appointment thereto, as ii directly touches upon the appellant's right to be considered for the said post.
7. The respondents have registered the appeal under rule 9 (2) of the service rules which reads as under:- "Promotion including proforma promotion shall not be claimed as of right by any civil servant".
It 'is clear that the claim for being considered for promotion is not affected by this prohibition on claiming the promotion itself. The claim for Tieing considered is independently sustained by the provisions of the Section 8(1) of the PCS Act, 1974 and rule 14 of the service rules referred to above.
8. The responding department have retied on Section 9 of the PCS Act. 1974 which provides that every civil servant shall be liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government. By invoking this section it has been asserted that any officer can be appointed by transfer to the post of Controller as it is a selection post. This section primarily relates to the liability of a civil servant to transfer and not his eligibility for appointment by transfer. The liability of a civil servant for transfer is distinguishable from his eligibility to hold a post. Appointment by transfer is regulated by rule 11 of the Service Rules, as under:- "11. Appointment by transfer may be made if transfer is prescribed in the relevant service rules as a method of appointment to such post:
(i) from one functional unit to another functional unit if the person holds an appointment on regular basis in the same basic scale and rank as that of the post to which appointment by transfer is proposed to be made provided he possesses the qualifications prescribed for initial, recruitment to such post; or .............."
One of the conditions for appointment by transfer is that a person must fulfil the qualifications prescribed for the post of the borrowing functional unit. Therefore, the at of transferring a civil servant owing to his liability to transfer cannot interfere with the eligibility of another. Civil servant for appointment to the said post. Again, a transferee cannot hold a post without fulfilling the requisite qualification prescribed for the post. Section 9 was certainly not intended to fix square pegs in round holes. A transfer made under section 9 cannot be visualized to contravene the provisions of sections 3, 4 & 8 of PCS Act, 1974 and rule 11 of Service Rules.
9. There is no dispute that the appointment is regulated by section 5 of the Recruitment Rules. A plain reading of the said rule would indicate that as a first step, the post of Controller is to be filled by selection on merit from amongst members of class-1 service which has been defined under rule 4 of the Recruitment Rules and inter alia includes the Superintendent of Govt. Printing and Stationery Deptt, presently held by the appellant. As a second step, where no suitable member of class-1 service is available, the post is to be filled, at the discretion of the Govt, by initial recruitment or by transfer, in this case, the first step has been admittedly not taken which was a pre-requisite for a possible recourse to the second step. Determining of suitability for selection for the post of Controller would also necessarily require specific steps to be taken as visualized under rule 9(i) of the Service Rules reproduced below:- "Appointment by promotion or transfer to. Posts in various grades shall be made on the recommendations of the appropriate Committee or Board".
10. The appropriate Board in the case of the appellant is Provincial Selection Board as per rule 4 (8) of the Service Rules. Admittedly, the case of the appellant has not been considered by the said Board, it may be pointed out that discretion of the Govt, to resort to the method of transfer could be exercised only by observing the provisions of rule 7 of Recruitment Rules which is reproduced below:- "No person shall be appointed to the class-I service by initial recruitment or by transfer unless he holds a degree or diploma in Printing Technology from a recognised University or Institute obtained as a result of two years course pf academic and practical training and possesses at Ieast five years experience as an officer in-charge of a Govt. Printing Press or a large private press".
11. The respondent No. 3 admittedly does not fulfil the qualifications laid down in the above- mentioned rule. Again, the appointment by transfer is to be made in accordance with rule 9(i) of the Service Rules which requires that appointments by transfer are to be made on the recommendations of the appropriate Board, and only of such persons as possess the qualifications and meet the conditions for transfer to the post. Admittedly, the appointment of respondent No. 3 by transfer to the post of Controller has neither been made on the recommendations of the Provincial Selection Board nor in accordance with the provisions of rule 7 mentioned above.
12. The respondents have also argued that the representation of the appellant was considered in consultation with the SGA&I Deptt, and filed as not tenable. This plea will not hold in the light of the obligatory requirement of consideration of the case by the competent selecting authority which admittedly has not been done. Similarly, the appropriate authority to determine fitness or otherwise of the appellant on the basis of average reports and entries in the ACRs of the appellant describing him not fit for promotion would be the selecting authority in terms of rule 9(1) referred to above, which in this case is the Provincial Selection Board and not any other authority in the responding departments.
13. The argument that the appellant did not object to the appointment of officers belonging to other departments till 1992 and therefore, is not entitled to claim for consideration for the post of Controller is also not tenable. This claim cannot be turned down merely because he did not apply for it earlier. This plea cannot absolve the respondents of their statutory obligation to fill up the post in the prescribed manner and consider the appellant lor promotion/selection in accordance with the rules, in this connection, the ratio of the judgment in PLD 1994 SC 233 is applicable. It has also been argued that the appellant did not exhaust the departmental forum for making appeal to the higher authority. The respondents have admittedly turned down the representation of the appellant which was sent by respondent No. 2 to the respondent No. I. The respondents should have sent the appeal to the higher forum, if any. And the appellant cannot be said to have failed in availing of the departmental remedy. The Learned Supreme Court in its judgment 1988 SCM R 1458 decided on 9.6.1987 has endorsed the view, that it is the duty of the authority receiving the application or representation to forward it to the proper authority.
14. It is clear that the appellant who is eligible to be considered for appointment as Controller has not been so considered by the competent authority, and the said post has not been filled in the prescribed manner. It is not open to the appointing authority to ignore the consideration of the case of the appellant and induct an outsider without fulfilling the requirements of the rules.
15. In the light of the above discussion, the. Appeal is allowed with the direction that the responding departments shall place the case of the appellant before the Provincial Selection Board for consideration of his fitness or otherwise for appointment to the post of Controller in accordance with the law and rules.