ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. Syed Rehman Shah, after selection by FPSC, was appointed as Legal Assistant (B-16) in the Ministry of Law' and Justice in February, 1977.
He was promoted as Assistant Solicitor (B-18) on regular basis with effect from 2-12-1985. He was allowed current charge of a vacant post of Deputy Solicitor (B-19) vide Notification dated 27-8- 1995, initially for a period of three months with effect from 27-8-1995, which expired on 27-11-1995.
His case is that his case for promotion as Deputy Solicitor (B-19) was not processed but contrary to recruitment rules, Mr. Dost Muhammad Malik, a BPS-18 Officer of the Government of Punjab, who was Additional Sessions Judge, was appointed against the post of Deputy Solicitor (B-19), which gave cause of grievance to the appellant, and he after exhausting departmental remedy, has approached this Tribunal by way of this appeal with the prayer that respondent No. 2, i.e. Secretary, Law and Justice Division be directed to allow the appellant to continue on the current charge and to place his case before the CSB for consideration for regular promotion to the post of Deputy Solicitor (B-19).
2. The appeal was admitted and notices were issued to the respondents and they have filed comments.
3. The appellant has appeared in person and argued his appeal. It is contended that the appellant is the Senior-most Assistant Solicitor (B-18) arid-is eligible for promotion as Deputy Solicitor (B-19) as under the recruitment rules, it is a 100% promotion post, therefore, no person by way of transfer or direct appointment could be brought in without any eligible persons being declared unfit. It is urged that respondent No.3 is a provincial employee, serving as Additional District and Sessions Judge in 13-18 in the Government of Punjab, could not be appointed on deputation as Deputy Solicitor, and his appointment is illegal and ultra vices.
4. Mr. Mirza Anwar Baig, the learned counsel appearing on behalf of private respondent No.3 was raised preliminary objection that the appellant has already filed writ petition in the Lahore High Court, Rawalpindi Bench. Which is still pending, therefore, this Tribunal has no jurisdiction and this appeal summarily be dismissed. In the alternate it is argued that same points are involved in the writ petition, therefore, during the pendency of writ petition, in the interest of justice, the hearing of this appeal be postponed as there is likelihood of conflicting judgments. To this, the appellant submitted that writ petition filed by him is not for the same cause of action but relates to different grievance, and this appeal before the Tribunal is competent.
5. Before we proceed to discuss the merits of the case, we would like to dispose of this legal objection. The question of eligibility for consideration for promotion of a civil servant comes under the definition of terms and conditions being regulated under the Civil Servants Act, 1973 and under section 3(2) of the Service Tribunals Act, 1973 the Tribunal exclusive jurisdiction to adjudicate upon the terms and conditions of Civil servant. The aggrieved person can prosecute his remedy in other forums y invoking of Labour Courts , or High Courts and by doing so, at his own risk but jurisdiction of the Tribunal is vast with exclusive jurisdiction and can adjudicate terms and conditions of civil servants independently, therefore, without prejudice to the maintainability of writ petition, we repel this objection and hold that the Tribunal has got exclusive jurisdiction.
6. The learned counsel for respondent No.3 also referred to a decision of this Tribunal delivered Ali Khan Subhopoto v. Secretary, Law and Justice Division) decided on 24-6-1993 (1994 PLC (C.S.) 30), and submitted that this Tribunal has already decided identical points, wherein the appellant has challenged the deputation of one Mr. Masoodul Hassan Shah, Additional and District Sessions Judge, therefore, earlier decision of Tribunal is binding on this Bench, irrespective of other factors, it was held that the appellant at that the was not eligible for appointment as Deputy Solicitor (B-19) and he was not an aggrieved person and could not seek declaration. Moreover, he had not impleaded Mr. Masoodul Hassan Shah as respondent in that appeal and further that appeal was also the-barred, as such the appeal was dismissed on legal points. Therefore, the facts of that appeal were not identical to the facts of the case in hand.
7. Mr. M. Javid Aziz Sandhu, the learned Federal Counsel for the respondent department submitted that the Secretary, Ministry of Law and Justice was competent Authority who could only determine whether any person is suitable for appointment as Deputy Solicitor was available in the Ministry or not. It was argued that during the course of current charge, the performance and work of the appellant was closely assessed by the superior authorities and he was not found up to the mark, and the works of the Solicitor's Wing is highly technical, sophisticated and requires vast judicial experience by the officers dealing with it. Therefore, Mr. Dost Muhammad Khemta was appointed against the post of Deputy Solicitor in the public interest. It is further argued that Assistant Solicitors and Research Officers (B-18) are eligible for promotion to the post of Deputy Solicitor (B-19) were lacking judicial and field experience and, therefore, their cases have not been processed. It has further argued that the Ministry of Law and Justice is actively considering to modify the recruitment rules to make an opening for judicial officers to join this post
8. The methods, qualifications and other conditions for various appointments to the posts of Solicitors (B-20); Deputy Solicitors (B-19); Assistant Solicitors (B-18); Research Officers (B-18) and Legal Assistants (B-17) in the Justice Division were laid down vide SRO. 700 (1)185, dated 17th July, 1985, which, inter alia, provided that the post of Deputy Solicitor (B-19) shall be filled 100% by- promotion provided that if no one is found suitable for promotion, the post reserved for promotion shall be filled by initial appointment and failing that by transfer but Rules were amended vide SRO No. 5(1)/95, dated 26th December, 1994 to the extent that: "Provided that if no one is found suitable for promotion the post or posts reserved for promotion shall be filled by transfer and failing that by initial appointment."
The persons eligible according to rules for promotion for the said post are Assistant Solicitors (B-18) and Research Officers (B-18); having 12 years' service in BPS-17 and above, or 7 years service BPS-18 in case of direct recruits in BPS-18. From the perusal of the rules, it is clear that there is no provision for Deputy Solicitor having judicial or field experience or any other hurdle for the purpose of promotion to the post of Deputy Solicitor. Had there been any such intention, such condition should have been incorporated in the rules, and nothing more than that could be read into it. Therefore, Recruitment Rules are to be followed. There can hardly be made any distinction in the spheres of duties of an Assistant Solicitor and the Deputy Solicitor. Undoubtedly, the appellant fulfils the requisite conditions of eligibility for consideration for promotion to the post of Deputy Solicitor (B- 19) and his eligibility had to be adjudged by the CSB as provided under Rule 7 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, before making resort to the mode of appointment by way of transfer, which factor is missing in this case. It may also be pertinent to mention here that the Establishment Secretary in his d.o. Letter dated 12 February, 1996, addressed to the Law Secretary, in the writ petition, while examining the case of Mr. Dost Muhammad Khemta as Deputy Solicitor, had pointed out glaring irregularities and the relevant paragraphs are reproduced below: "2. It appears from the examination of the case conducted within the Establishment Division and the correspondence exchanged with your Ministry that apparent violations of the Civil Servants Act, 1973 and the recruitment rules for this post as notified in SRO 700 (1)/85, dated 17th July, 1985, have occurred in the appointment of Mr. Dost Muhammad Malik, Additional District and Sessions Judge (BS-18) as Deputy Solicitor (BS-19) on deputation basis for period of 3 years. A Notification No.1/256/94-E.4, dated 12-11-1995 was issued by Establishment Division to this effect. The violations appears to be:
(a) According to the Recruitment Rules for this post notified in SRO 700(I)/85, dated 17th July, 1985 this post was to be filled 100% by promotion and not by transfer as was done.
(b) Under section 9 of the Civil Servants Act, 1973, a civil servant is eligible for promotion to a higher post reserved under the rules for departmental promotion in the service or cadre to which he belongs. This being a selection post in BS-19. Under section 7, Part I of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, promotion and transfer to posts in basic Pay Scales 19--21 and equivalent of the Central Selection Board, which was not done and no panel of names of eligible incumbents containing the names of appellant Syed Rehman Shah was submitted to the Establishment Division for convening/consideration by the Central Selection Board.
(c)No provision exists in the recruitment rules for this post for deputing provincial civil servant.
3. In view of the above violations it may be difficult to defend the Government position before the Honourable Lahore High Court, Rawalpindi Bench. However, the Establishment Division is not aware of the objective situation under which the Law and Justice Division has filled the vacancy by transfer.
4. Accordingly, it is proposed that this Division's reply to the Honourable Lahore High Court, Rawalpindi Bench, would be entailed filing a written statement to the effect that this appointment was made at instance of Law and Justice Division who would be able to provide details in this regard.
5. Under the circumstances the parawise comments filed by the Law and Justice Division with the Honourable Lahore High Court Rawalpindi Bench may please be defended by themselves under their own arrangements."th We are of the view that since the eligibility of the appellant for the post of Deputy Solicitor (B-19), which is a selection post, reserved for promotion, as required under the rules, has not been assessed by the CSB. The Law Secretary, with due respect cannot debar persons from consideration but has to place case before the CSB to examine eligible persons for promotion. This action was without jurisdiction and contrary to the rules as the post was to be filled 100% by promotion. In the identical situation, the Tribunal in Appeal No. 403(R)/93 by its judgment had directed the department to place the case of the appellant before the CSB for consideration for promotion according to law and the said C judgment of the Tribunal was upheld by the Hon'ble Supreme Court in C.P.L.A. No. 312 of 1994 filed by Federation of Pakistan, by order dated 2nd November, 1994. Therefore, reiterating earlier view and following the aforesaid decision of the Supreme Court, we direct respondent No.2, Secretary, Law and Justice Division, to place the case of the appellant before the CSB-11 for consideration for promotion to the post of Deputy Solicitor (B- 19) according to law, within to months. The appeal stands disposed of in the above terms.