SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of the abovementioned 13 civil appeals by a common judgment as the questions of law arising in the above appeals are identical.
2. Civil Appeals Nos. 179 to 182 are directed against the judgment of Federal Service Tribunal dated 28-6-1993, Civil Appeals Nos. 187 and 923 are filed against the judgment of Federal Service Tribunal dated 7-8-1993, Civil Appeals Nos. 188 and 190 of 1995 are filed against the judgment of Service Tribunal dated 29-9-1993 while Civil Appeal No. 189/95 arises out of the judgment of Federal Service Tribunal dated 30-9-1993. Except Civil Appeals Nos. 188 to 199 of 1995 which are filed by the employees of Pakistan Railways, the rest of the appeals, have been preferred by the Pakistan Railways.
3. The learned Service Tribunal through its judgments dated 28-6-1993 and 7-8-1993 which are impugned by Pakistan Railways and others in Civil Appeals 179 ,to 187 of 1995 and 923 of 1994, granted move-over to private respondent. In the said appeals from BPS-17 to BPS-18, while in Civil Appeals Nos. 188 to 190 of 1995 the learned Tribunal through its to judgments dated 29-9-1993 and 30-9-1993 refused to grant move-over to the appellants in these cases from BPS-17 to BPS-18, Leave has been granted by this Court in the above appeals to consider the contention whether a civil servant who is working on acting charge basis against a post is entitled to move-over in the next higher grade.
4. Mr. Fatal-i-Hussain, the learned counsel for Pakistan Railways contended before us that private respondents in the appeals filed by Pakistan Railways were working on acting charge-basis against the posts which were in BPS-17 and therefore, they were not entitled to move-over to the next higher grade as -one of the criteria for move-over to the next higher grade is, that the person must be working `on regular basis on the post. (For the sake of convenience, we will refer here the appellants in Civil Appeals Nos. 179 to 1,87 of 1995 and 923 of 1994, and respondents in Civil Appeals 188 to 190 of 1995 as the appellants and the respondents in Civil Appeals Nos. 179 to 187 of 1995 and 923 of 1994 and appellants in Civil Appeals Nos. 188 to 190 of 1995 as respondent'. The learned counsel for the respondents jointly contended that they were serving on acting charge basis for a number of years and there being no restriction for grant of move-over to the civil servant of this category, they were entitled to move-over to the next higher grade in terms of Finance Division O.M.F.1(82)R-3/85, dated 1-1-1986. Mr. Rana Muhammad Sarwar, the learned counsel for respondents in Civil Appeals Nos, 183 to 187 of 1995 contended that respondents in these appeals were given the current charge of the post and, therefore, their cases were different from the respondents in other appeals who were appointed on acting charge basis. The learned counsel for the respondents, however, jointly contended that in any case, the appointment of respondents on acting charge or current charge basis could not be treated otherwise that on regular appointment, as these appointments were made in accordance with the rules applicable to the civil servants.
Both the learned counsel for the appellants and the respondents have relied on O.M. No.F.I (82) R- 3/85, dated 1-1-1986 in support of their respective contentions. The above O.M. Was issued with the concurrence of the President and laid down a detailed criteria for grant of move-over to the employees of Federal Government serving in BPS-16 to BPS-19. This O.M. Superseded the earlier O.M.
Issued by Finance Division bearing No. F.1(83) R-3/85(ii), dated 2-9-1985. It is conveyed under O.M.
No.F.I (83)R-3/85, dated 1-1-1986, which became effective from 1-12-1985, in respect of all those employees who reached the maximum of pay scales from 16 to 19 on or before 1-12-1985 that they were made eligible for consideration for move-over to the next higher grade with effect from 1-12- 1985 except the employees of technical categories who were already eligible for move-over from an earlier date. According to paragraph 3 of the above O.M. The guidelines for scrutiny of the.
Cases of move-over by the Selection Committee/Move-over Committee were contained in the Annexure to the memo. Which is printed as Annexure to the memorandum alongwith the above memo. At pages 657 to 659 of ESTACODE and read as follows:- Subject:--Guidelines for considering cases of move-over of employees in BPS-16 to BPS-19 .
The following are the guidelines for processing the case of move-over.
Cases of move-over of employees in BPS-18 and 19 shall be scrutinised and recommended by a Selection Committee comprising the Secretary of the Administrative Ministry or in the case of attached Department the Head of the Department if he is drawing pay in BPS-22 and a representative of each of the Establishment and Finance Divisions not below the rank of Joint Secretary. The Ministries and Divisions shall prepare a working paper for the Selection Committee embodying the particulars of each officer as per pro forma enclosed with these guidelines.
3. Cases of move-over of employees BPS-16 and 17 will be scrutinized by the concerned Move-over Committee and will be approved by the competent Authority. The pro forma referred to in para. 2 above will also be used in this para.
4. While considering an employee for move-over, the Selection Committee/Move-over Committee should briefly indicate the grounds for their recommendation. If a case is postponed, the exact ground for postponement vide para. 7 of the guidelines should always be specified. The Ministries/Divisions and Departments should ensure that when the reason for which the case' was postponed ceases to exist, the case is placed before the Selection Committee/Move-over Committee as early as possible.
Criteria for Move-Over
5. An employee must fulfil the following requirements for move-over to Pay Scales 17, 18, 19 and 20, as the case may be:
(i) He should be a regular member of the service, cadre or post concerned and should have completed the following length of service to a post in the pay-scale in which he is to move-over:- B-18 .. 5 years B-19 .. 12 years B-20 .. 17 years
(ii) His confidential reports for the last five years in the existing post/pay-- scale are free from adverse remarks and-
(a) are average to good in the case of move-over to Scale-17 and 18;
(b) are generally good in the case of move-over to Scale-19 and at least good or above for move- over to BPS-20.
(i.e) No penalty under the relevant rules was imposed on him during the last five years.
(iv) He has not reached his present pay-scale by move-over.
6. Subject to fulfilment of the conditions mentioned in the preceding paragraphs move-over would be admissible from 1st December of the year following the year in which he reached the maximum of his basic pay.
7. The Selection Committee/Move-Over Committee may postpone consideration of a case:--
(i) If the officer is on long leave or is under suspension, or disciplinary action is pending against him or he is on deputation abroad or posted to an ex-cadre post abroad; or
(ii) his C.R. Dossier is incomplete or some other information is wanting. .
8. If a case was postponed and the employee concerned is subsequently allowed move-over, this will be allowed with immediate effect in cases covered under para. 7(i) above and the qualifying period from the date the move-over was due to the actual date of move-over shall count towards increments in fixation of pay. If the case was postponed under para. 7(ii) above, move-over shall be allowed from the date the move-- over was due."
Item No.5 of the annexure reproduced above amongst others., lays down the criteria for move-over from BPS-17 to 18 and 18. To 19 and from 19 to 20. One of the conditions prescribed a$ a criteria for grant of move-over to the next higher grade is, that a civil servant must be a regular member of the service, cadre or post concerned. The question for consideration before us, therefore, is whether the respondents who were admittedly working either on current charge basis or on acting charge basis, could be considered as the regular member of service, cadre or post on which they were working on current charge or acting charge basis. The subject of current charge appointment has been dealt with in O.M. No. 112/76-AR I/R-I1, dated 18th June. 1980 as amended vide O.M. Of same number dated 10-4-1981, printed at pages 206 (Sl. No. 137) to 208 of ESTACODE 1989. It reads as follows:--- "Serial No. 137: According to the existing instructions all appointment by promotion in higher posts are to be made through regular selection process i.e. With the approval of the Central Selection Board/Departmental Promotion Committee and the authority competent to make appointment to the grade in which the vacancy exists. However, in those cases where a vacancy in a higher post occur for less than to months and it is considered impossible for good reasons to make arrangements for day to day work of that post to be carried on otherwise, the current charge of the duties of that post may be given temporarily, with the approval of the authority competent to make appointments to the said post, to the senior most officer in the cadre present at the place or in the organisation where the vacancy may have occurred if he is otherwise fit and eligible for promotion.
2. Situations arise in various departments where higher posts have to be filled urgently for 'short periods independently of the normal promotion and appointment procedure which takes the. The matter has been considered in consultation with the Ministry of. Finance. In order to overcome the difficulty, the President has been pleased to delegate the power to make current charge appointments as follows:-
(i) Secretaries/Additional Secretaries. For
(ii) Heads of Attached Departments not Grade below Grade-21 including Chairman, F.P.S.C. And Chairman, Federal Inspection 17 to 20 Commission in respect of their own officers.
(iii)Auditor-General of Pakistan. Audit Department.
(iv)Military Accountant-General for Upto Military Accounts Departments. Grade 20
(v) Member Finance, Railway for Railway's Audit Department.
(vi)Head of Department as defined in For Grade S. R . 2(10) not below Grade-20. 17 and 18.
3. The exercise of the powers as delegated shall be subject to the observance of the following conditions:-
(i) the arrangement should not be made for a period of less than one month and should not exceed three months. However, it may be extended by another three months with the approval of the next higher authority;
(ii) as soon as the current charge is given, a proposal for regular appointment should be initiated and referred to DPC/CSB within a month; and (i.e) in making current charge arrangement, the senior most officer available in the organisation and present at the place where the vacancy may have occurred, if he is otherwise fit and eligible for promotion, should be considered.
(iv) An officer appointed to hold -current charge of a higher post shall be allowed, in term of F.R. 35 and proviso to section 17 of the Civil Servant Act, 1973 pay in his own grade plus additional pay 'scale equal to ' 10% of his grade pay (Please see revised orders vide Serial No. 13-8-A below).
(v) The existing orders on the subject are modified to the above extent.
(vi) This Office Memorandum issues with the concurrence of the Ministry of Finance."
From the above instructions, it is quite clear that the appointments on current charge-basis are of a purely temporary nature or a stop-gap arrangement which are to remain operative for a very short duration until a regular appointment is made against the post. In fact under the above instructions ,no sooner an appointment is made on current charge-basis, a proposal for regular appointment according to rules is to be initiated. The subject of appointment on acting charge and current charge-basis is also dealt with under Rule 8-B for the Civil Servants (Appointment, Promotion and Transfer Rules, 1973, (hereafter to be referred as the Rules only) which reads as follows:- 8-B.(1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge-basis.
(2)So long as a civil servant holds the acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but maybe appointed on acting charge-basis to a higher post.
(3)In the case of a post in Basic Pay Scales 17 to 22 and equivalent, reserved under the rules to be filled by initial appointment, where the appointing authority is satisfied that no suitable officer drawing pay in the basis pay scale in which the post exist is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organisation, cadre or service as the case may be,. In excess of the promotion quota.
(4)Acting charge appointment shall be made against posts which are likely to fall. Vacant for a period of six months .Or more, Against vacancies occurring .For less than six months, current charge- appointment may be made according to the orders issued from the to the.
(5)Appointment on acting basis shall be made on the recommendations of the Departmental Promotion Committee or the Central Selection Board, as the case may be, save in the case of post in Basic Pay Scale 22 and equivalent.
(6)Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority, (7)Acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis. "
Sub-rules (1) and (2) of the Rules deal with the appointments on acting charge basis against posts reserved under the rules for departmental quota. It provides that where a vacancy in the departmental quota is to be filled in public interest and the senior most civil servant who is otherwise eligible for promotion does not possess the specified length of service, the authority may appoint him to that post on acting charge-basis. It further provides that so long such civil servant holds acting charge appointment, no other person junior to him is to be considered for regular promotion but may be appointed on acting charge basis to a higher post.
Sub-rule (3) of the Rules provides for appointment of a civil servant. Of acting charge basis against a post in Pay Scales 17 to 22 reserved for initial recruitments, from amongst the departmental promotees, who is senior-most and is otherwise-qualified to be promoted, in excess of departmental quota, if the appointing authority is satisfied that no suitable candidate is available and it is expedient to fill that post. Sub-rule (4) of the Rules further provides that acting charge appointment can be made against the posts which are likely to be vacant for a period of six months or more. However, against the vacancy occurring for less than six months only current charge appointments are to be made. Sub-rule (6) and (7) (ibid) which are relevant for the purposes for present cases, clearly provides that appointment on acting charge basis shall not amount to appointment by promotion on regular basis for any purpose including seniority. It further provides that the appointment on acting charge basis does not confer any vested right for regular promotion to the post held on acting charge basis. From reading of the instructions which appear at page 206 of the ESTACODE reproduced above and rule 8-B (ibid) it is quite clear that the appointments by way of acting charge or on current charge, basis are not of permanent nature but only stop-gap arrangements and that it does not confer any right for regular promotion to that post and that appointments on acting charge or current charge basis do not amount to a regular appointment against the post or cadre. Appointments on acting charge or current charge basis also do not confer any right to claim seniority on account of that appointment. We have already reproduced earlier, the criteria which has been laid down for move-over to BPS--18, 19 and 20 which appears at page 658 of ESTACODE and one of the essential conditions for grant of move- over is that the person concerned must be a regular member of the service, cadre or post concerned. It is an admitted position in the cases before us that the respondents were serving in BPS-17 or 18 either on acting or current charge basis and were not regular appointees against that posts and, therefore, they were not entitled to move-over either in terms of O.M.F.1(82) R-3/85,.
Dated 1-1-1986 or in terms of the Rules.
The learned counsel for the respondents lastly contended that they were treated in a discriminatory manner by the department inasmuch as that in cases of some of the employees who were also working on acting charge basis, the department allowed move-over to the next higher grade. The respondents' counsel specially referred to the cases of Fiaz Karim and widow of K.M. Aslam and some others. The learned counsel for the appellants on the other hand contended that in none of the cases referred by the respondents, the appellants had allowed move-over to the higher grades. The learned counsel for the appellants pointed out that move-over in those cases was allowed either under the orders of learned Service Tribunal or learned Wafaqi Mohtasib, which could not be challenged further as they became the-barred on account of negligence of the staff of appellants. The learned counsel for the respondents conceded before us that in all the cases referred by them, the department had declined to grant move-over, but either under the orders of Service Tribunal or Wafaqi Mohtasib, which the appellants failed to challenge, move-over to next grade was allowed. They, however, maintained that failure on the part of appellants-to challenge the orders of Service Tribunal or the Wafaqi Mohtasib, amounted to a discriminatory treatment of respondents by the appellants. We are unable to accept the above contention. As move-over in all such cases was allowed by the appellants under the orders of the Tribunals of competent jurisdiction, mere failure on the part of appellants to challenge those orders further, which according to the appellants was on account of negligence of their staff, could no amount to discriminatory treatment of the respondents in the above cases.
5. As a result of the above discussion, the appeals filed by Pakistan Railways (C.As. 179 to 187/95 and d923/94) are allowed and impugned judgments of the Service Tribunal are set aside while Civil Appeals 188 to 190 of 1995 are dismissed and to impugned judgments of the Service Tribunal in these appeals are upheld. There will, however, be no order as to costs in the circumstances of the cases. Before parting with the cases, we would like to observe that appointments on current or acting charge basis are contemplated under the instructions as well as the Rules for a short duration as a stop-gap arrangement in cases where the posts are to be filled by initial appointments. Therefore,continuance of such appointees for a number of years on current or acting charge basis is negation of the spirit of the instructions and the Rules. It is, therefore, desirable that where appointments on current or acting charge basis are necessary in the public interest, such appointments should not continue indefinitely and every effort should be made to fill posts through regular appointments in shortest possible the. A copy of this judgment be sent -- Establishment Division for future guidance.
MUKHTAR AHMAD JUNEJO, J.---While agreeing with my learned brother Saiduzzaman Siddiqui, J.
That the appeals filed by the Pakistan Railways (C.As. Nos. 179 to 187/95 and 923/94) be allowed and the impugned orders of the Service Tribunal be set aside and the Civil Appeals Nos. 188 to 190 of 1995 be dismissed, I would disassociate myself from the observation made by his Lordship in para. 5, after the operative part of the judgment, and would like to avoid expressing my view one way or the other, in respect of general policy of the Government.