BASHARAT AHMAD SHAIKH, J.---Through the present appeal Raja Muhammad Asghar Khan challenges the order passed by the High Court on 29th of August, 1996 on a writ petition filed by respondent Ch. Muhammad Yusuf whereby the High Court, accepting the writ petition, directed that appointment to the post of General Manager in the Azad Kashmir Logging and Sawmill Corporation may be made in accordance with the relevant rules within a period of to months. It was also ordered that if the said direction was not implemented the appointment of Raja Muhammad Asghar as General Manager in his own pay and scale shall become inoperative.
2. Before adverting to the other details a subsequent development has to be noted. After the decision under appeal, on 28th of October, 1996 the Board of Directors of Azad Kashmir Logging and Sawmill Corporation approved the re-organisation of the administrative structure of the Corporation and ordered that in future there shall be three General Managers in the Corporation. In pursuance thereof the contesting officers of the Corporation, namely, appellant Raja Muhammad Asghar and respondent No. l Ch. Muhammad Yusuf were appointed as General Managers on acting charge basis on 29th of October. This order was challenged by the appellant by filing a writ petition within to days of the order. The petition is pending in the High Court and a copy has been placed on record with the concise statement of respondent No. 1. It is now contended by the learned counsel for respondent Ch. Muhammad Yusuf that present appeal has become academic in nature. However the appellant's learned counsel does not accept this proposition.
3. The facts are that Ch. Muhammad Yusuf and Raja Muhammad Asghar were serving as Managers in the Azad Kashmir Logging and Sawmill Corporation when on 23rd of October; 1995 the Minister Incharge of the Forest Department in his capacity as Chairman of the Board of Directors of the Corporation passed an order entrusting the charge of General Manager Operations/Sales to Raja Muhammad Asghar on temporary basis and in his own pay and scale. By the same order another person was similarly entrusted the charge of Manager Forests/Operations, the post previously held by Raja Muhammad Asghar. It is stated in the order that it was being passed in view of urgency of the matter and that it was subject to the approval of the Board of Directors. It is claimed that this power was exercised with reference to rule 7 of the Rules of Business of the Azad Kashmir Logging and Sawmill Corporation which lays down that the Chairman shall exercise all powers of the Board in disposal of urgent cases and that such orders shall be placed before the Board for concurrence/information in the next meeting of the Board to be held within six months.
4. Respondent Ch. Muhammad Yusuf filed a writ petition .On 6th of December, 1995 to challenge the order mentioned above. He stated that he was senior in service to respondent Raja Muhammad Asghar and he was entitled to be promoted to the post of General Manager Operations/Sales but Raja Muhammad Asghar had been illegally appointed to that post. Amongst the grounds raised in support of this contention it was stated in the writ petition that there was a specific procedure for appointment/promotion to the post of General Manager but the Chairman had bypassed that procedure. It was also contended that the post of Manager, held by Ch. Muhammad Yusuf, was subordinate to the post of General Manager and by issuing the impugned orders the Chairman had violated the dictum of the Supreme Court laid down in Muhammad Rashid Chaudhry v.
Chairman, AKLASC and others 1993 PLC (C.S.) 1201, in which case this Court disapproved an order by which an officer of the Azad Kashmir Logging and Sawmill Corporation was transferred to a post carrying higher grade in his own pay and scale on the ground that such an order was not covered by law. It was prayed that the impugned order may be quashed and any other appropriate writ may also be issued. However, this judgment does not find any mention in the judgment under appeal although the learned Judge has clearly mentioned that rights of senior persons have been seriously affected.
5. As already mentioned the writ petition was accepted but the order impugned before High Court was not set aside and the High Court instead ordered that the appointment to the post of General Manager may be made within a period of to months failing which the order would become inoperative: This has given rise to a point forcefully put forward by the learned counsel for the appellant, Mr. Ghulam Mustafa Mughal, that the High Court travelled beyond its jurisdiction by issuing the direction mentioned above. It was contended by the appellant that the relief granted by the High Court was neither, solicited by respondent No. I nor did it flow from the proceedings before the High Court. It is also argued by the learned counsel that the power to fill up the post of'
General Manager on permanent basis, as directed by the High Court, lies with the Board of Directors which had not been impleaded as a party in the writ petition. Basing his argument on a number of cases decided by this Court, the learned counsel argued that a direction or writ cannot be issued against a functionary without making him a respondent.
6. The gist of the order under appeal is that the learned Judge in the High Court accepted the contention raised on behalf of the present appellant that the impugned order passed by the Chairman had been competently passed by the Chairman of the Board of Directors because it was an urgent case within the meaning of rule 7 of the Azad Kashmir Logging and Sawmill Corporation Rules of Business, which lays down that: "7 (i) The Chairman shall, in the disposal of urgent cases, exercise all the powers of the-Board. Such cases shall normally be submitted to him through the Managing Director. The Managing Director may, when he thinks it necessary, consult any other Director before submitting the case to the Chairman. Orders passed by the Chairman shall be placed before the Board for concurrence/information of the Board within six months (in the following Board meeting).
(ii) Any case which the Chairman may require by general or special order to be sent to him."
However, the learned Judge expressed the view that it was necessary that regular appointment to the post should have been made without further delay within a reasonable the but a period of seven months had already elapsed during which no step was taken in that direction. It was pointed out that:-- "...........I think, there have been already a delay in the matter which seriously affected the tights of the senior persons who feel embarrassed by the appointment of junior person. No doubt, ever the junior person can be appointed on the basis of selection if he is found more suitable than the seniors, but such a course can only be adopted after the appropriate Selection Committee has applied its mind and made its recommendations.
6. In fairness to all, it is desirable that a direction is issued to the Board to the effect that regular appointment be made in accordance with the rules within a period of to months from the date of this order. The quashment of impugned order will affect the business of the Corporation, hence, such an action is, therefore, avoided in the interest of the Corporation. "
7. The observations reproduced above clearly show that although the learned Judge accepted the order passed by the Chairman to be valid but he was of the opinion that rights of the senior persons were being seriously affected by the delay and the impugned order was not being quashed for the reason that it would adversely affect the working of the Corporation. We do not agree with the learned counsel for the appellant that the impugned order of the Chairman was not quashed by the High Court. In this connection it is important to note the contents of the operative part of the judgment of the High Court. It runs as follows:-- "7. As upshot of the above discussion, the writ petition is accepted and the authorities are directed to make the appointment to the post of General Manager in accordance with the Rules within a period of to months from the date of this decision, failing which the order of appointment dated October 23, 1995, in respect of respondent No.4 would become inoperative."
8. As we read the relevant parts of the judgment it becomes clear that the order of appointment dated 23rd of October, 1995 was 'to become inoperative after lapse of to months. The learned Judge did not refuse the prayer for setting aside the order but only postponed it till lapse of to months. It is stated in para. 6 of the judgment under appeal that the quashment of the impugned order of appointment was being avoided so that the business of the Corporation may not be adversely affected.
9. The facts show that the direction given by the High Court has not been implemented by the Board of Directors. The High Court ordered that the post of General Manager which had fallen vacant immediately before 23rd of October, 1995 may be filled up on regular basis but the Board has only filled up the post on acting charge basis. It may be argued that since the Board had not been impleaded as a respondent it was not bound to implement the direction given by the High Court but the fact relevant for the present appeal is that the appellant herein cannot raise the plea that he is in any practical way adversely affected by the impugned direction of the High Court.
10. An important development is that the Board has also created to more posts of General Manager and the to contestants, namely, the appellant and respondent ho. 1, both have been appointed as General Managers on acting charge basis. Therefore, both of them are now equally placed and the dispute arising out of the Chairman's order of 23rd of October, 1995 is no longer a live issue. The appellant is not satisfied with the Board's order and has tiled a writ petition for redress of his grievance. The matter can be effectively decided by the High Court. However, this has brought material change in the situation.
11. By passing the order of 23rd of October, 1995 by which he entrusted the charge of the post of General Manager to the appellant herein, the Chairman of the Corporation violated the dictum of this Court in Muhammad Rashid Chaudhry's case which has been mentioned earlier and which had been specifically mentioned in the body of the writ petition filed to the High Court. In the precedent case it was held that there is no concept in the service laws of transferring or shifting of an employee of the Corporation to a post carrying higher scale and that also for indefinite period. The relevant portion of the judgment tray be reproduced: "According to rule 27 of the AKLASC Employees Service Rules in case all matters not expressly provided in those rules members of the service shall be governed by appropriate rules/orders of the Government.
Therefore, the Civil Servants (Appointment and Conditions of Service) Rules, 1977 are applicable to the Corporation. The concept of promotion as envisaged in section 8 of the Civil Servants Act is that promotion is to a post carrying higher grade while the accepted connotation of "transfer" is the shifting of an official to an equal post. There is no concept in the service law of transferring a civil servant to a post carrying higher grade and that also for an indefinite period. According to the scheme of the service law if a vacancy is to be filled by promotion it is to be filled through the relevant Promotion Board. However,- if a vacancy cannot be filled immediately civil servants can be appointed to higher posts pending completion of the formalities in accordance with the Rules of 1977 mentioned above. These rules provide for appointment by promotion on acting charge basis (rule 10-A), appointment on current charge basis (rule 10-B) and appointment by promotion on officiating basis (rule 13). In rule 10-B there is also a reference to appointment on ad hoc basis. If the rules already in force are found wanting in any situation the proper course is that the Government. Should amend the Rules. The prevalent practice of ordering civil servants to posts carrying higher grades should be brought to an end because sometime the senior persons are left to work in the some position while their juniors enjoy higher status and enhanced powers without adjudication of their suitability for promotion by the Promotion Board. In this contest we may usefully reproduce the following passage from the judgment of this Court in Mubasharul Haq v.
Azad Government of Jammu and Kashmir 1991 PLC (C.S.) 426):-- The other ground on which the order of the Service Tribunal proceeds is that no additional benefit had been conferred on the to respondents. We find this ground equally untenable. The to respondents are functioning as Executive Engineers which posts carry higher responsibilities and, therefore, enhanced powers and status.
Under an Executive Engineer many S.D.Os. Work as their subordinates and the possibility cannot be ruled out that even the appellant himself could have been posted under one of the respondents. Mere fact that they have not been allowed salary in the high scale does not lead to the conclusion that there is no additional benefit to them. "'
Since the order passed by the Chairman was in violation of the direction reproduced above this Court cannot pass any order, which indirectly validates or gives efficacy to an illegal order.
12. The order of 23rd of October, 1995 by which the appellant was entrusted with the charge of General Manager specifically contained the stipulation that it was a temporary order and that it had been passed subject to approval of the Board of Directors. It follows that the aforesaid order had to be replaced by an order by the Board of Directors even if a direction had not been passed by the High Court. The legal position is clear that stopgap order which was passed for entrusting the charge of General Manager to the appellant created no right and such an order could be withdrawn or substituted any the.
13. Keeping all these factors in view we have reached the conclusion that the prayer for vacation of the direction given by the High Court for filling up the post of General Manager on regular basis cannot be granted in the changed circumstances and for the reasons mentioned above.
It is accordingly ordered that the appeal shall stand dismissed, leaving the parties to bear their own costs in this Court.