MUHAMMAD ASLAM, MEMEER-I.- This judgement shall also dispose of appeal No. 101/96 (titled, Amir Mussain Naqvi and others r. Chief Secretary. Punjab and others) as the same questions of lay and fact are involved in both these appeals.
The appellant Mr. Bashir Akhtar Shai. Was appointed as Principal. Govt. Comprehensive High School, Gujrat (BS-18) on 20.12.1981. He was promoted to BS-19 on 12.5,1994. He has appealed against the approval of the contesting respondents No, 6 21 for promotion as DPI (BS-20) ,on the ground that although he is senior to the said respondents by virtues-his seniority in BS-18. BS-19, he was not considered alongwith them for the said promotion which w as to he considered on the basis of a combined seniority with the said respondents The following service rules are applicable in the case of appointment promotion to various posts to which the appellant and the answering respondents were appointed/promoted in the department
(i) WEST PAKISTAN SERVICE (GAZETTED) (COMPREHENSIVE HIGH SCHOOL BRANCH) MEN'S SECTION RULES, 1969.
These rules provid for terms and conditions of appointment to the posts (Principals and Subject Specialists Govt. Comprehensive High School) known as Comprehensive Cadre. The appellant was appointed in BS-i8 under these rules.
(ii) WEST PAKISTAN. EDUCATION SERVICE ~ (CLASS-1.
ADMINISTRATIVE BRANCH) (MEN'S SECTION) RULES. 1962 (AS AMENDED BY NOTIFICATION DATED 28.9.1972.).
These rules provided for appointment and promotion to various - . Posts upto Director of Education (BS-19). These rules provided for appointments/promotions to various posts in the Institutions other than those where appointments upto BS-18 were made under the above mentioned Comprehensive Rules. -1969.
These rules. (1962 Rules) were repealed and substituted by the notification dated 5.4.1989 by the following rules
(iii) PUNJAB EDUCATION (SCHOOL EDUCATION) RECRUITMENT RULES. 1987 AS AMENDED TROUGH NOTIFICA TION DA TED *4.1989. < These rules provide for promotion on selection on merit to the posts including the posts of Director Education (BS-19) and DPI (BS-20), as follows:- .
Director of Education (Schools)/Additional Director Public Instruction or other equivalent posts as may be declared by the Govt, from tome to time. #tbs By promotion on selection on merit basis from amongst Directors/Additional Directors Public Instruction of the Functional unit with 17 years of service in post carrying BS- and above provided that where initial appointment was made in post carrying BS-18 the length of service shall be l2 years in posts carrying BS- and above. #tbe #tbs Director Public instruction t School) or other equivalent Posts as may be declared by the Govt, from lime to rime. #tbe By promotion on selection on merit basis from amongst the holders of the posts of Deputy directors/Deputy Directress/District Education Officers (Male) and- (Female(/Principal In-service Pre Service Teachers Training Colleges (Male and Female) Principal and Subject Specialist Elementary College
(Male) and (Female)/Principal Comprehensive Schools/Principal Higher Secondary Schools. (Male and Female)/Headmaster Headmistress of High School (BS-18) with at least l2 years service in BS-17 or above provided that in case of incumbent initially appointed in BS-18, the length of service for promotion shall be 7 years.
2. The appellant was appointed to BS-18 bn 20.12.1981, whereas' respondents No. 6 to 21 were appointed/promoted to BS-18 on different dates in 1982. 1986 & 1990. The appellant was promoted to BS-19 on 12.5.19^4 and the answering respondents were promoted in BS-19 on different dates in 1985 and 1994.
3. All these promotions/appointments are covered under the rules mentioned at i. 11, iii above, as the case may be. The department prepared separate seniority list of officers of Comprehensive Cadre, treating the appellant as a member of the said cadre, and of the General cadre, treating the answering respondents in the said cadre, and submitted the case of promotion of members of the general cadre i.e. Answering respondents, for promotion to the post of DPI (BS-* 20). Their promotion was recommended the provincial Selection Board in its meeting held on 5.10.1995 and approved by the Governor Punjab in Dec. 1995. The appellant preferred writ petition No. 11649/96; the learned Lahore High Court passed an injunctive order on 4.7.1996 restraining promotion, of respondents! However, the writ petition was dismissed in limine being not maintainable for lack ol jurisdiction with the observation that the appellant could approach the Service Tribunal for redressal of his grievances.
4. The appellant has contended that he is senior to the 'contesting respondents by virtue of earlier date of appointment in BS-18 as well as BS-19. He has further contended the since no combined seniority list has been issued under the aforementioned rules, the contesting respondents cannot be promoted by ignoring the appellant who would be senior to them in the combined seniority list and that his right for being considered for promotion in BS-20 has been infringed as he was not included in the list of officers who were approved for promotion by the Provincial Selection Board as well as the Governor while his juniors were so approved. It is further contended the S&GAD Deptt,, issued an advice on 4.1.1996 to respondent No. 2 for preparing a combined seniority list of all the officers of school cadre for further promotion in BS-19 and 20. The-said advice was further reiterated on 7.5.1996. Another direction was issued by respondent No. 2 on 3.6.1996 asking respondent No. 5 to submit cases of promotion of the teachers to BS-19 and BS-20 on the basis of combined seniority list. Instead of complying with this direction, respondents No. 6 to 21 are now sought to be promoted on the basis of the approval of the Provincial Selection Board/Governor obtained in disregard of the provisions of the rules. The appellant has further contended that in case the said respondents are allowed to be promoted, the appellant would become junior to them. It is also contended that any seniority list consisting of officers of only one group ignoring the other groups mentioned in the feeding cadre as mentioned iff the aforementioned 1987/1987 rules would result in discrimination against the appenaiit./.Tha appellant has requested Jor issuing, a*direction for preparation of a combined seniority list and after finalizing the same, for submission of the case for promotion to the posts in BS-20 to the Provincial Selection Board for considering the appellant for promotion alongwith others on merit and in accordance with the rules. *
5. Secretary Education, (respondent No. 2) and DPI (SE) (respondent NO.51 in their written objections have stated that the appellant belongs to comprehensive cadre whereas respondents No. 6 to 21 belong to general cadre; that all the previous rules that were repealed related to the general cadre and the 1987/1989 rules also relate to the same cadre, therefore, the question of combined seniority fist consisting of officers belonging to comprehensive, cadre and the members of general cadre does not arise; that some members of comprehensive cadre were promoted to BS-20 while they wCre treated in comprehensive, cadre, including the appellant himself who was promoted to BS-19 on 12.5.1994 with the condition that he would retain his seniority in the lower grade in the.
Comprehensive cadre: that the appellant accepted his promotion to BS-19 being in comprehensive cadre and therefore, now cannot claim joint seniority with the members of general cadre; that the appellant as well as Rana Ikram UL Haq, a member of comprehensive cadre, filed writ petitions in the Learned Lahore High Court which were disposed of/dismissed: and another writ petition No. 1059/95 filed by Mst. Ivlisbah-un-Nagira was dismissed by the learned Lahore High Court (Rawalpindi Bench) with the observation that the Education Deptt, was within its right to maintain a separate seniority list for each of its cadres; that the appellant is junior in his own comprehensive cadre and as such'invoked the jurisdiction of this Tribunal against one vacancy of BS-20 as per categorisation done under the four-tier formula according to the Strength of comprehensive cadre in terms of SGA&I Deptt.'s circular letter dated 25.9.1980; that the appellant is under suspension and is tinder inquiry under E&D Rules, 1975 on charge of mis-conduct and therefore, cannot claim promotion, lt is further contended that the advice of SGA&I Deptt._ contained in their letters dated 16.4.1996 and 3.6.1996 for preparation of combined seniority list could not attain finality as the matter was referred back to the said Deptt, for review keeping in view the difficulties thqt the rules for comprehensive cadre of 1969 were never repealed and therefore, the merger of comprehensive cadre with the general cadre was hot possible and that in case the service rules 1987/1989 were to be implemented, combined seniority of male and female cadres too had to be prepared. It is also stated that promotions of members of comprehensive cadre to BS-19 were made on the basis of separate seniority lists of comprehensive cadre as they are governed by separate rules which have not so far been repealed; that the posts of Principals of comprehensive schools can be held by the members of general cadre, comprehensive cadre,. Municipal cadre, provincialized and nationalized cadres but members of all these cadres cannot claim combined seniority with the members of general cadre; that promotions under rule 14 of the Punjab Civil Servant (Appointment & Conditions of Service) Rules, 1974 are required to be made from within the functional unit and therefore, the appellant cannot claim promotion in the functional unit which comprises only general cadre; that no final decision has so far been taken regarding the preparation of combined seniority list, but promotion of respondents NO. 6 to 21 is not against the judgement of the learned Lahore High Court dated 16.5.1996 in writ petition No. 11317/95. Which was disposed of on the assurance of the departmental representative that there were 55 Grade-20 posts available and recommendations were made to fill-up only 23. Posts whereas there are only l2 officers of the category' of the appellant -who can be said to be within the ambit of promotion in Grade-20 and that promotions shall not be made against l2 vacancies before the final decision was taken in. The matter.
6. Chief Secretary. Secretary SGA&I Deptt, and Chairman.-Provincial Selection Board (respondents No. 1. 3&4) in their parawise comments have simply stated that preparation of seniority lists is the responsibility of Secretary Education (respondent No. 2i and that notification for promotion of the answering respondents has not beeti issued as yet. These respondents have requested for deciding the appeal on merits.
7. Respondents NO. 7,13 to I6 & 18 to 21 in their written objections have contended that the appeal is pre-mature and not maintainable as no final order, original or appellate, has been made by any authority so far and that he appellant has not exhausted the departmental remedy; that the writ petition No. 16649/96 filed by the appellant was disposed of on the ground that the department had not passed the final order and that ICA 395/96 filed by the appellant was also dismissed. It is also contended that the \vit petition No. 11317/95 filed by Mr. Ikram-ul-Haq Rana, another officer of comprehensive cadre, like the appellant, was also disposed of by the learned Lahore High Court on 16.5.1996; that another writ petition No. 1059/95 filed by yet another officer of comprehensive cadre, Mst. Misbah-un-Nisa Nagira, was also dismissed by the Learned Lahore High Court (Rawalpindi Bench). It is also contended that there are separate mles of recruitment in the comprehensive and general cadres and the appellant got his promotion to BS- 19 on the basis of seniority under the rules of the said cadre, and he cannot claim promotion on the basis of combined seniority; that the-preparation of combined seniority list is not possible unless the existing Comprehensive Cadre Rules, 1969 are repealed and new cadre rules are promulgated for both the cadres; that DPI (respondent No. 5) has no jurisdiction to notify any promotion to BS-19 or to issue combined seniority list in violation of rales.
8. Arguments were heard. The answering respondents have raised the objection that the appeal is premature and not maintainable as no final order has been passed by the authority and that the appellant has also not exhausted departmental remedy. The learned counsel for the appellant argued that the objections is not tenable as a separate appeal No. 101/96 has been filed and the appellants in the said appeal, like the appellant in the instant appeal, were also members of the comprehensive cadre and they also claim promotion to the post of DPI (BS-20) on the basis of their earlier dates of promotion to BS-19 than those of the answering respondents. (The appeal No: 101/96 filed by M/s Amir Hussain Naqvi. Rana Ikram-ul-Haq and Ch. Muhammad Jarneel is also being disposed of through this judgement). The cases of these appellants in the said appeal are identical'-in nature with that of-the appellant. They filed representations dated 9.7.1995, 5.12.1995.
22.8.1997 and 24.7.1995 for their promotion to BS-20 w.e..f. 12.12.1990. Since no decision was taken on their representations, they have filed the above noted appeal after the expiry of 90 < ays. The learned counsel in the instant appeal contends that since his aforesaid colleagues have filled representations in the same matter, it would not make any difference if he had not fifed the representation. He has relied upon the law laid down in the judgement of this Tribunal dated 30.3.1977 reported as 1977 PLC (CS) 165 and upheld by .The learned Supreme Court vide judgement reported as '983 SCMR 859. In that case, it was held that since some of the appellants in that case had filed the representations.
Ii was not necessary for others to file the representations because "the issue involved was the same and the ratio of the order to be passed upon the 10 representations was automatically applicable to the remaining two". tWith that observation, the objection of the respondents with regard to the maintainability of the appeals of those who did not file the representations, was repelled, lt was further submitted by the learned counsel for the appellant that making a representation in promotion matters is not obligatory' on the civil servants because it is the statutory obligation of the Govt, to make promotions of civil servants concerned from the due date. He has relied upon the Supreme Court's judgement reported as PLD 1994 SC 233 wherein similar objections of non-making of representation in promotion matter was over-ruled. It was lastly submitted by the learned counsel for the appellant that the Governor had passed an order on the relevant file. Since no representation against an order passed by the Governor is required under section 21 of the Punjab Civil Servants Act, 1974. His present appeal without representation is competent. He has relied upon the Supreme Court's decision reported as 1993 SCMR 1326. That appeal was dismissed by this Tribunal on the ground that "as the order of Chief Minister had not been communicated to the appellant, or implemented, it had lost its efficacy.". That decision was not maintained by the Supreme Court, by holding that "the mere fact that it was not .Communicated- to the appellant, did not detract from its efficacy "The objection with regard to the appeal being premature is accordingly over ruled.
9. The crucial points that arise out of the contentions of the parties and required consideration for decision are as follows:-
(i) Service Rules applicable for promotion of the appellant.
(ii) The functional unit or the cadre to which the appellant belongs.
(iiii Whether combined seniority is required to be issued for promotion of the appellant and the contesting respondents.
10. The Comprehensive Rules, 1969, referred in para-I-A ri) as stated earlier provide for appointment/promotion to the posts upto (BS-18) and not the post of Director and above. (BS-19 & BS-20). The method of appointment to the post of Director is prescribed in 1962 rules referred in para-I-A (ii) above. This method includes the'members of comprehensive cadre as well as general cadre (appellant as well as answering respondents) in the feeding cadre lor promotion to the post of Director. It follows therefore, that both the parties had to compete for the.Post of Director, being members of their respective cadres in the lower posts. No other service rules provided for promotion of member of comprehensive cadre or of any other cadre to the post of Director. 1962 Rules were repealed/through notification dated 5.4.1989, whereby 1987 rules were also amended so as to include members of the comprehensive cadre for promotion to the post of Director. The post of DPI (BS-20) is to be filed by promotion on selection from ' amongst Directors. It follows that members of the comprehensive cadre as well as general cadre upto BS-18 were eligible for,promotion as Director first under the 1962 rules and then under 1987/1989 rules. It also follows that feeding cadres for the post of Director under 1962 rules were identified with reference to their respective cadres, and the feeding cadres under 1987/1989 rules were identified by the Functional Unit "School Education." The issue whether members of the comprehensive cadre were eligible for promotion to the post of Director under the 1962/1972 Rules came up before this Tribunal in appeal No. 459/94 titled Amir Hussain Naqvi and two others (comprehensive cadre) VS: Govt, of the Punjab and others (General Cadre). The appellant in the said appeal claimed eligibility for promotion to the post of Director on the basis of 1962 Rules. The Tribunal allowed the appeal vide r judgement dated 26.3.1995 with the following observations:- "It is noticeable that officers of four different cadres or sub-cadres were to be.Considered for selection. The seniority had to be determined in the context of the entire "department" rather than any smaller group. It goes without saying that the post in BS-19 was of quite a high status and that is why it was intended to be filled by a broad-based selection of officers of the entire department rather than a small cadre. That was ' why such officers belonging to the Administrative Branch, Collegiate Branch, Superior Science College Branch and the Comprehensive Schools Branch, were all permitted to compete. Seniority in their case was to be determined vis-a-vis the whole "Department". It meant nothing but seniority in BS-18, i.e. The next lower scale.. It, was not disputed that the appellants were promoted in BS-18 from 18.11.1979 whereas all the respondents were promoted in BS-18 on 23.2.1982. These promotions were made in the context of the entire department'. The respondents were therefore undeniably junior to the appellants ai.u! Yet they were promoted to BS-19 on 26.8.1985 whereas the appellants were promoted 8 years later i.e. On 10.11.1993/8.3.1994. This unusual phenomenon called for an explanation but none was offered."
11. The Judgment of this Tribunal was challenged before the learned Supreme Court by Govt, of the Punjab and the learned Supreme Court vide its order dated IS. 1.1996 refused leave to appeal with the following findings:- "There is also no doubt that the rules which governed the parties at the relevant time were the rules called the West Pakistan Education Service "(Class-I, Administrative Branch) ^(Mens's Section)
Rules, 1962; by Rule 6 thereof, vacancies in the post of Director of Education were to bp filled by selection on merit, seniority being considered only in the case of officers of practically the same standard of merit........ From amongst the senior most officers of the Deptt, who were holders of the post or members of the services mentioned there; at serial No. Iv thereof was mentioned "the West Pakistan Education Service (Gazetted Comprehensive Schools) (Men's Section). The appellants before the Service Tribunal belonged to that service and there is, therefore, no question that they were entitled to be considered for promotion. Yet when the respondents No. 3 and 4 before the Tribunal were promoted, the appellants before the Service Tribunal were not so considered. The Service Tribunal, therefore, held and rightly in our view that the rule 6 referred to above entitled the appellants before the Service Tribunal to be considered for promotion with effect from 26.8.1985 when their juniors were so proriioted." l2 The appellants in the aforementioned appeal decided by this Tribunal have also filed a separate appeal No. 101/96, on the same question as in involved in the instant appeal after the Education Deptt, failed to consider them for promotion to the post of DPI (BS-20) in the light of the aforementioned judgment of this Tribunal and the learned Supreme Court as well as 1987/1989 Rules. In fact the feeding cadres for the post of Director as provided in the 1962 Rules are the same and as such the finding of this Tribunal in the aforementioned judgment as up-held by the Supreme Court with regard to the applicability of rule 6 of the 1962 Rules is equally applicable with full force for the purpose of interpretation of provisions of 1987/1989 Rules.
13. The promotion of the appellant to the post of Director (BS-19) having beeii made correctly under the 1987/1989 rules, his further promotion to the post of DPI (BS-20) cannot be questioned on account of his promotion as Director having been made on the basis of a seniority separate from that of the answering respondents. The provision of 1987/1989 rules declare the post of DPI to be in the functional group of School Education, and promotion to the post of DPI is to be made on selection from amongst various groups including the appellant as well as the answering respondents. No distinction has been made amongst various groups included in the feeding cadre consisting of the directors and Additional* Directors etc. No other rule provides for promotion to the post of DPI. All the directors and others holding equivalent posts in BS-19 have therefor an equal chance of competing for the post, of DPI through promotion on selection on merit basis.
14: Coming to the question of combined seniority, it may be stated that 1987/1989 rules simply provide for promotion on selection on merit basis from amongst the holders of the lower posts. Promotion on selection is regulated by section 8 of the Punjab Civil Servant, Act 1974 which is re-produced below "8.(1) A civil servant-possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a (higher) post for the time reserved under the rules for departmental promotion in the service or cadre to which he belongs.
(2) A post referred to in sub-section (1) may be a selection post or a non-selection post to which promotion shall be made as may be prescribed:
(a) in the case of a selection post, on the basis of selection on merit; and - '
(b) in the case of a non-selection post, on the basis of seniority-cum-fitness.
15. Again, Rule 14 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 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)."
I 6. It is not open to the department not to consider the case of the appellant for promotion on selection or to consider some members of the same functional unit and ignore the others for consideration for the post of DPI. Rule 14 in fact enjoins upon the authority concerned to consider for promotion all those who are eligible. The main requirement of rule 14 read with the provision of the Recruitment Rules, 1987. i989 is the consideration of the cases of all the officers who had been earlier promoted as Director and equivalent posts in BS-19 and since the rules require promotion on selection, the dates of promotion to the post in BS-19 are relevant for purposes of considering the relevant experience.
17. The learned counsel for the answering respondents also argued that seniority is not mentioned as an element in the method of recruitment provided under 1987/1989 Rules, for promotion on selection on merit basis to the post of DPI. And therefore the appellant cannot claim preparation of a combined seniority list consisting of officers of 'comprehensive' and 'General' cadres before promotions are made. It was also stated by the answering respondents that since the question of issuing of combined seniority list has not been finally decided, the case of the appellant cannot be considered. The learned counsel for the appellant argued that in case the matter regarding preparation of combined seniority list is still not final, the case for promotion of the answering respondents could also have not been taken up and should have been treated as premature. The appellant has also appealed for consideration! Of his case for promotion to the post of DPI and has agitated against non-consideration of his case by the Provincial Selection Board. Even if the.
Argument advanced by the learned counsel for the answering respondents, regarding combined seniority is accepted, there is no reason to ignore the appellant for consideration of his case when he admittedly holds the post (BS- 19) equivalent to the posts that are included in the feeding cadre for promotion to the post of DPI. In fact none of the holders of the posts of Director and eqimalem (BS-19) could.Be ignored for consideration for promotion to the post ot DPI and equivalent. ,
18. The difficulties pointed out by the department and contesting respondents in preparing 1he combined seniority list is merely a technical objection as it should not present any difficulty in identifying the dates of promotion to BS-19 of all those who are included in the feeding cadre. The same should also apply in case of the female holders of the posts, included in the feeding cadre as the rules do not make any distinction between male and female holders of the posts included in the feeding cadre. Even if separate seniority list of officers belonging to the general' and 'Comprehensive' cadres are put together, it can serve as appropriate material for consideration by the selecting authority, the relevant exp'erience of different officers against posts in BS-19 being reflected by number of years spent by them against a post in BS-19. It follows that by not considering the case of the appellant and others who fall in the feeding cadre, provision of section 8 of Punjab Civil Servants Act, 1974 as well as rule 14 of Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 have not been followed. Reference made by the Education Deptt, to the Regulation Wing of SGA&I Deptt, for reconsideration of their earlier advice for preparing a combined seniority list is therefore unnecessary as it is also really Jiot necessary to issue a formal combined seniority list before considering the case for promotion to the post of DPI as was in fact done at the time of promotion of the appellant as well as-ermtesting respondents to the post of Director when no combined seniority list was issued. It was pointed out that the promotion'order dated 12.5.1994 of the appellant stipulate that on promotion he was allowed to retain his seniority enjoyed -by him in the lower grade in the comprehensive cadre. Retention of seniority in lower grade (BS-18) in comprehensive cadre is no ground for depriving the appellant for competing for the, post of DPI on the basis of length of his service in BS-19 comparing'with such service of contesting respondents which would determine the inter se seniority of the appellant vis- a-vis the contesting respondents for purposes of consideration of experience by the selection Board at the time of consideration of the case for promotion to BS-20, the date of promotion to BS- 19 being the basis of their seniority in BS-19 for purposes of promotion to BS-20, which in any case is to be made on selection on merit.
19. The respondents have also relied on the judgement dated 6/1996 passed by the learned Lahore High Court (Rawalpindi Bench) in writ petition No. 1059/95 which was filed by a member of the comprehensive cadre wherein it was observed that the Education Deptt, was well within its right to maintain a separate seniority list for each of its cadres. 1 am afraid the respondents can hardly take any advantage from this observation of the learned Lahore High Court as the said writ petition was rejected in limine inter alia on the ground that the petitioner never approached the service Tribunal to challenge any particular seniority list or erroneous grant of promotion to supposedly junior persons. Separate seniority list in general cadre cannot be prepared under 198771989 rules, but under the comprehensive rules, 1962, for officers below the post, of -Director. The objection that the' appellant cannot be considered for promotion as he is under suspension or is being proceeded against under the E&D Rules is not relevant to the main issue. The competent authority will deal with the question and decide about his promotion in the light of the rules. This objection therefore cannot hit his right to be considered alongwith others for promotion on selection to the post of DPI. During the course of discussion it was indicated by the learned DA and Govt, representative as well as the learned counsel for the contesting respondents that in all 55 posts in BS-20 are available against which 23 officers have already been cleared by the Provincial Selection Board. There are only l2 officers of the category of the appellant who are eligible for promotion. The learned counsel for the contesting respondents urged for allowing the notification to be issued for promoting the officers of general cadre who have already been cleared by the Provincial Selection Board anfl approved by the Governor and the case of the appellants alongwith other officers of the comprehensive cadre may also be considered by the Board in due course. It was also pointed out that more than one year has passed since the case of the officers of the general cadre was approved, it will require reconsideration by the Board as per Govt, instructions. As regard the question of reconsideration, the learned counsel for the answering respondents argued that since the officers have already been pronged, and only the formality of issuing the notification remains to be fulfilled, they should not be required to be cleared by the Provincial Selection Board again for the reason that any event occurring after their promotions were approved by the Governor would not affect the approval given by the competent authority. The learned counsel, for the appellant i>n the other hand, argued that the promotions already approved without considering the appellant and others who were eligible is not strictly in consonance with rule 14 and section 8 ibid and therefore the entire case will have to be placed before the Provincial Selection Board again for considering'all the persons holding the posts shown in the feeding-cadre in the rules. No serious objection can be taken to thisargument of the learned counsel for the appellant as the selecting authority particularly in' the case of promotion on selection, as in the instant case, is to make selection from amongst all the persons eligible for promotion. The learned counsel for the answering respondents took up the plea that the case of the appellant can always be considered in case it is found that he was also eligible for consideration under the 1987/1989 Rules. The eligibility of 'answering respondents is not disputed; it is their consideration in isolation and without considering the appellant for promotion on selection which has been questioned in the instant appeal. Since the number of posts in BS-20, of DPI and equivalent (55) is far in excess of the total number of persons already cleared (23) plus the total number of persons belonging to the 'comprehensive' cadre (l2), it should not be necessary for Provincial Selection Board to consider the cases of the answering respondents again as they have already been recommended for promotion and also approved by the Governor. What is required to be done is to place before the provincial Selection Board for consideration and promotion as DPI and equivalent those cases of officers of BS-19 who, like the appellant, are included in the feeding Qadre, as per the provision of rule 1987/1989 but were erroneously ignored for such consideration. It does not matter if some officers belonging to the comprehensive cadre were already promoted in isolation and against any assumed quota for the comprehensive cadre. The question of reservation of any quota for different feeding categories mentioned in the 1987/1989 rules does not arise as no such quota is stipulated .In the said rules, which simply makes all persons holding the posts of Director etc. Eligible for promotion oq, selection, regardless of the cadre to which they may have belonged. The .Contesting respondents have referred to the instructions of the SGA&I Deptt, contained in circular dated 25.9.1980 according to which a decision was conveyed that where sources of induction by promotion are more than one, specific ratio is to be got prescribed in the existing service rules in proportion to the strength of each feeding cadre so as to enable all feeding cadres to get their due share in promotion to higher posts, and the combined seniority lists should be prepared on the basis of continuous officiation in the respective feeding cadres but promotion should be allowed according to the prescribed share or ratio of'each feeding cadre. It was further conveyed in the said letter that if some ratios have already been fixed in the service rules for promotion to higher posts, promotion should continue to be made according to that ratio until the amendment in the service rules on the basis of the principle of ratio amongst different cadres is made. Learned counsel for answering respondents pointed out that the officers of general cadre are much larger in number as compared with the officers of the comprehensive cadre and therefore the principle conveyed through the, aforementioned'.Instructions-should be followed and the appellant and iris- colleagues can claim only that number of post in BS-20 as fall to them share .In . Proportion to their strength in lower grade. It was also stated that in fact some ; officer belonging to comprehensive cadre have already been promoted to BS:20 according to their share on the basis of the principle conveyed through the aforementioned instructions: This share' was determined 'by the''department as'' follows:- ; CADRE * BS-17 SB-18 BS-y> BS-20 TOTAL .
General. Male '. 2 7b 7 . 1874 827 55 55! 3 y ..
Female 1441- " 980 ' 432' - .29 " ' 3882 -.
Comprc- - Male 45 .' 31 13 l' :i '-'9(t ' hensi\ e.. 1 Female . 1h -' 10 - 5 '' T1'." 30 7 1 Total: * 4258 2895 . 1277 85 8515
20. - The above reservation of quota in various categories of posts for different groups has no basis as ho such share is prescribed in the 1987. 1989 Rules, and even under the aforementioned instruct ions &T the SGA&I Deptt. The appellant and contesting respondents or others belonging , to a.,particular ' ckdre; ..Cannot be considered on the basis of any-ratio. In fact rules .Were not amended to provide for am quota for an\ category of officers included in the feeding cadre and the aforementioned instructions of SGA&l Deptt, were, in fact not violated. It would therefore be wrong to assume iluu the rule making authority intended the posts of DPI-and equivalent ho be filled from amongst the feeding cadre on the basis of any quota, for the reason that all the feeding cadres in fact belong to the same system and the incumbents are routinely interchanged. Officers of one cadre are posted to a post belonging to the other cadre. By not amending the rules, the rule making authority'practically treated all the holders of the posts of directors as a single feeding cadre for purposes of promotion to the post of DPI. Promotions if tirade on the basis of the share shown in the table above for specific groups also do not conform to., the...Provisions, of sect ton. 8 and rule .14. Referred above. Since the eligibility pf persons promoted, on the basis of reservation of quota has not been questioned, the only thing that is required to be (Jonc is to ensure that persons who were eligible but were not considered at the time of making such promotions will have to be considered. *
21. All promotions of civil servants are made to posts in terms of section 8 of the Punjab Civil Servants Act, 1974. The 1987/1989 rules provided for promotion to the post of DPI (Schools) and other equivalent posts as may be declared by the Govt, from time to time. The same provision has been made for promotion to the post of director of Education (Schools). Since the posts of DPI and Director declared as such are fewer than the posts created by the Govt. In BS- 19 and BS-20 under the 4-tier structure through notification dated 12.12.1990. The Govt. Is obliged to up-grade the posts from the feeding cadre up to the number of persons promoted to the higher posts, with the result that the posts of Dy. Directors (BS-18) included in the feeding cadres are up-graded to the level of Directors (BS- 19) which is a promotion post. Similarly, posts of Directors (BS-19 are upgraded as equivalent to DPI (BS-20) which is a promotion post. Promotion under the law and rules can be made only to a post and not to a grade or pay scale This concept was clarified by Govt, through circular instructions dated 11.2.1975 issued by SGA&I Deptt , as under:- "I am directed to say that a number of Civil servants have submitted * representations demanding promotion to higher grades in a manner not permissible under the law. The correct position is.
Therefore, clarified below for the information and guidance of all concerned :-
(1) Promotion was and continues to be a method of recruitment' as would appear from sub Section
(2) of the Punjab Civil Servants Act, 1974, reproduced below: I '
"(2) For the parpose of this Act, an appointment whether by promotion or other wise* shall be deemed to have been made on regular basis if it is made in the prescribed manner."
Since promotion is a method of recruitment it has never been treated as a right. Also the method of recruitment (as would appear from the text of sub-section (2) quoted above read with definition of "prescribed" in sub-section (l)(g) of Section 2 ibid) has to be prescribed by rules. Thus no appointment by promotion or otherwise can be made under the Act unless the method of recruitment and r r' other conditions of appointment are first prescribed by the rules (jRhles here include old or new rules framed or continued under Section 23 of the Act ibid).
(2) All old service rules prescribed conditions (i) of appointment to posts & (ii) of service of persons appointed thereto. Same position continues under the new . System because no one can be appointed, to civil service without a post. The Act ibid and rules framed thereunder deal primarily with conditions of appointment to posts (either isolated or as part of grade, cadres or services) and secondarily with conditions of service of persons appointed thereto. The new functional units being created in place of old cadres on the basis of job descriptions will afso comprise posts in various grades. Methods of recruitment and qualification etc', will be prescribed separately for posts in each grade in a functional unit. There is, therefore, no scope for appointment by promotion to a grade without posts either under the old rules or the new rules already notified or being framed for various functional units as said above.
(3) No appointment by the method of promotion or* otherwise can be made to a National Scale of Pay (even if called a grade) for the simple reason that appointment has to be < made against a post as otherwise there will be no valid agreement, lt is by virtue of appointment to a post that person concerned is completed and such person becomes entitled, to the terms and conditions of service. There is no such thing as "promotion to a scale or grade". Such phraseology suggests as if promotion connotes raise in pay and status only. This is n6t correct. As said above, promotion is method of recruitment to a post and raise in pay and status is an incidence of appointment bv this method to a higher post.
(4) A person can be appointed to a grade prov ided there are distinct posts in a grade and there is a vacancy.. The w ord 'grade' is used (instead of post) when it is not convenient to name a post in the grade or when the grade consists of posts (of equal le\el) with different nomenclatures as for example in the case of former CSP or PCS.
In no case, however can a person be appointed to an empty grade i.e. a mere scale of pay or a- grade, without specified posts of _ the same level. If this principle i:, violated, a phenomena . Like "personnel inflation" will riccur i.e. There will be appointees to a grade without posts. It is to avoid such a situation that the .Definition of grade given in the rules {vide Punjab C-ivil Servants (change in Nomenclature of Services and abolition of Classes) Rules. 1974). Does not. Recognize .Movement to ' the next higher scale as ^ promotion unless appointment is made to a post with higher responsibilities.
(5) A . "higher post is not the- sai# post with an additional higher National Pay Scale. A higher post is a post with higher responsibilities including those of supervision and control over the lower posts. Equal and similar posts are always-placed at the same level of responsibility. Their methods of recruitment and qualifications are also same. Me?s. "ttachment of a higher scale of pay with the lower j posts does not result-in their up gradation'unless (i) all the posts in higher and lower grade in that particular functional unit are regarded on the basis of job descriptions, and (ii) posts for.The higher scale are specified in the rules with separate qualifications and method of recruitment. If higher and lower posts are treated to be merged without regard to levels of responsibility and similarity of job descriptions, there . Will remain no scope for separate qualifications, methods of appointment or reversion to lower posts with .
Consequent complex legal and administrative repercussions.
You are requested to make appointments by the. Method of promotion n accordance with the position clarified above. This may also kindly be brought to the notice of all concerned for information and guidance."
22. The practice of up-grading the posts simultaneously with promoting the incumbents of the same posts, or promoting the civil servants to basic scales or arades is therefore not in conformity with the law. Rules and instructions on the sTibject. The practice followed by the- Education Department resulted from the difficulty in creating a hierarchical structure reflecting the exact number of posts in different scales created in the 4-tier'formula. An organizational hierarchy is based on the nature and size of functions Ymd the need for supervisory levels within the hierarchy, and all this is to be worked out exclusively keeping in view the object and needs of the system. In the present case, hierarchical formula is being sought to be created on the basis of number of posts created. The aim of introducing 4 their formula was not to create a new. Or change the existing, hierarchical system; the 4- tier. Formula was admittedly aimed at the enhancement of the pay scales of the existing personnel working in the system. The purpose could have been achieved through the grant of higher scales without attaching promotions with the scales. The method of promotion to high levels of hierarchy i.e. Directors and DPIs could remain separate. The existing practice has,also created a trend among.The teachers to seek promotions to higher levels of hierarchy on the strength of their eligibility for the grant of higher scales under the '4-tier formula. When a post is declared equivalent to a post of Director or DPI. There would be as many claimants for appointment to these higher posts as there are the persons eligible for promotion to such equivalent' posts under the 4-tier formula. The problem has been accentuated by the sudden and non-gradual introduction of the 4-tier formula into - the organizational system.
No wonder therefore that the department has not been able to notify as many posts equivalent to the posts of directors and DPIs-as there are persons who have been promoted to such posts and are now due for promotion. The department is responding to this, problem through massive upgradations which is neither a solution nor in conformity with the law, rules and_ instructions. It is frankly admitted by the learned counsels representing both the parties that the practice of upgrading the teaching posts to make them equivalent to higher levels of administrative posts has created an artificial desire for movement from teaching to administrative posts which may not be in the best interest .Of the education system. Ratio between the teaching and administrative posts is determined by the need of the'educational establishment and should not be allowed to be affected by the numerical strength of grades provided under 4-tier formula. The practice of simultaneous up-gradation of posts for promotion and equating them with the higher levels of administrative set-up has tended to promote dis-incentive for leaching work which may be ultimately counter-productive to the imperatives of .Policy in the field of education. This matter is however for the rule making 'authority to consider for suitable amendments in the rules with a view to integrating the rights of-the teachers available under the 4-tier formula with public interest. For the present, it would be incumbent on respondents No. 1&3 to notify, the posts of DPI.(s) and equivalent in the light of the above mentioned instructions before issuing tire notification for promotion of tire appellant as well as contesting respondents. , " ' ' -
23. The above discussion leads to the conclusion that the appellant who is eligible for promotion as DPI under the rules has been wrongly ignored for consideration at the-relevant time. The reservation of specified number of posts for particular groups (General, Comprehensive, Male and Female) is not supported by any rules.' and the persons ignored on account of such'reservation but eligible for consideration under the rules are required to be considered for promotion on selection merit. The eligibility of thd contesting respondents already approved by the competent authority has also notroeen questioned. The appellant as well as the contesting respondents were promoted as Directors and equivalent,! E!S-19) in 1he absence of the combined seniority list, and on the basis of thqif Separate seniority lists in their respective cadres in BS-18. It would be equally un-necessary to prepare a formal combined seniority list for consideration of the case of all the persons holding the posts of Directors aftd equivalent (BS-19) both male and female for promotion on selection on merit for the post of DPI etc. In this connection, a list of all such officers showing necessary particulars, dates and their promotion to posts in various grades up to BS-19, would be sufficient to enable the selecting authority to consider the case under section 8 of Punjab Civil Servants Act.
1974 and rule 14 of Punjab Civii Servants (Appointment & Conditions of Service) Rules, 1974 as well as Recruitment Rules, 1987/1989. The fact that the appellant and others did not object to their having been promoted to posts in BS-19 on the basis of separate seniority lists does not debar them for claiming consideration of their case for promotion on the strength of their eligibility for promotion as DPI. Section 8 and rule 14 referred to above clearly require consideration of all eligible persons for promotion on selection, and non-consideratiOn of any eligible person for promotion is an infringement of his right guaranteed under the law and rules. The answering respondents have already been cleared by the selecting authority and approved by the competent authority $r promotion, this approval does not lose its efficacy even titter the expiry of more man one year since the promotion was approved by the competent^authority. Reconsideration of their cases cannot take away the effect of approval already given by the competent .Authority. And is therefore un-necessary. This is subject to the condition that the right bf the appellant and others eligible for- consideration are not infringed. What is required tb be done is to ensure that the persons not considered but eligible on the basis of their promotion to the post of Director and equivalent to BS-19, should be considered'forth-with and their cases forwarded to the competent authority for consideration and approval.
Since the number of vacancies aretfar in excess of the number of persons already promoted as DPI and equivalenfrifieluding those already cleared for promotion as well as those eligible for promotion, there should be no problem in processing and dualizing the cases of those who are eligible but were ignored when the answering respondents were considered for promotion. This is. a simple exercise and it should be possible for the department to clear the cases within a period of one month so as to issue a single notification for promotion of those already approved and after clearing the eligible officers, lt is however, for the competent authority to consider the matter, in the light of urgency necessitated by public interest, whether to issue the notification of the answering respondents before a final decision is taken on the case of the appellant and others in the light of the above observations or to issue a single notification as pointed out above. It will however have to be ensured that the promotion to vacant posts are made w.e.f, the date . Of occurrence of the vacancies, subject to the eligibility of the promotes from such dates, the inter se seniority of all the persons eligible for promotion whether already approved or due for approval shall of course be determined on promotion, with reference to the dates of their continuous officiation as holders of the posts of Directors etc. In accordance with the rules, after the posts of DPI (BS-20) and equivalent are notified by the competent authority in the light of the rules and the observations made above.
24. The appeal is allowed as above.