SALEEM AKHTAR, J.---The appellants with the leave of this Court have called in question the judgment of the Federal Service Tribunal, whereby the second part of Notification dated 29-5-1993 in so far as it related to the transfer/posting of Mr. M. Abbas, Deputy Director, Federal Directorate of Education being ultra vires and unlawful the appeal was allowed to the extent that appellants/Department/Ministry shall consider the name of the respondent alongwith other eligible department Assistant Directors for promotion as Deputy Directors within next to months and if there was nothing adverse in his service record, shall not ignore him for such appointment and with all consequential actions/benefits.
2. The respondent was appointed as Assistant in the year 1967 and was promoted as Administrative Officer B-16 in the year 1975. He was promoted as Assistant Director B-17 in the Directorate of Education with effect from 20th June 1985. According to the Rules for the post of Deputy Director B-18, the respondent claimed to be eligible for consideration of such appointment.
The appellants, however, appointed one M. Abbas as Principal B-18 and transferred him as Deputy Director, Federal Directorate of Education, Islamabad against a vacant post. The respondent represented against this order as his name had not been sent to Departmental Promotion Committee and was not considered for this post. As he did not succeed in his departmental representation, held filed appeal before the Tribunal which allowed it and passed the order as stated above. Leave was granted to consider the question that as M. Abbas was not made a party to the proceedings and the appellants were not allowed to file written statement,/whether proper procedure had been followed by the Tribunal in the light of the contention mentioned above.
3. The learned Deputy Attorney-General contended that the respondent was not considered as the post of Deputy Director B-18 was meant for persons who had teaching experience and the same was lacking in the respondent. We are not impressed by this argument as it does not find support from the relevant rules. In any event, leave has not been granted to consider this question.
4. It is an admitted position that M. Abbas had been appointed as Principal and then transferred to the post of Deputy Director. According to the Rules the method for appointment to the post of Deputy Director is that 50% post shall be filled by promotion and 50% by direct recruitment and in case it is not possible then by transfer. At the relevant the there were four posts of Deputy Directors lying vacant and were to be filled according to rules. There is no doubt that M. Abbas was not joined as a party in appeal before the Service Tribunal. However, from the record of the Tribunal, it is clear that M. Abbas was present on the date of hearing and the learned members of the Tribunal had asked certain questions froth him. These facts show that M. Abbas was aware of the proceedings. He participated in them but neither the appellants nor the respondent thought it tit to join him as a party. There seems to be some reason behind it as from the documents placed on record by the respondent, M. Abbas was not interested in the transfer and was making representation that he would be transferred back as Principal of the college. The learned counsel for the respondent has placed a copy of Notification No.F.4-9/94(SA) FDE, dated 13-11-1994 that with effect from 24-10-1994 Mr. Muhammad Abbas, Deputy Director, Federal Directorate of Education has been transferred against the vacant post of Headmaster. It- is true that in the controversy before the Tribunal M. Abbas was a necessary party but depending upon the circumstances non joinder may not be a ground in certain cases leading to the dismissal of the appeal. In the present case M. Abbas was aware of the proceedings he appeared before the Tribunal. He participated in the hearing and the Tribunal also elicited his views. Furthermore, from the facts it is clear that from the very beginning he was reluctant to join the post of Deputy Director. This is borne out from the letter he had written and the Notification which was issued on 13-11-1994. In these circumstances in our view non joinder is not fatal to the maintainability of the appeal.
5. The next question is that the appellants were not allowed to file written statement. On the record there is a copy of the written statement/objections filed by the appellants. Under the rules after service of notice the respondent may file I objections within one week. When the matter was called before the Tribunal on 7-11-1993 the appellants were asked to file objections within 7 days and the hearing was fixed on 16-12-1993. On that date objections were filed. We do not find any illegality or irregularity in the procedure. The appeal is dismissed.