MUHAMMAD RAZA KHAN (MEMBER).---The appellant was appointed as Assistant Director (Manuals and Publications), in B-17 in the Pakistan Public Administration Research Centre, with effect from 15-5-1984. He proceeded on deputation on 1-2-1988 and was posted as Section Officer in the Ministry of Water and Power. On completion of period of deputation of five years he reported back to his parent department on 23-11-1993. The post of Director of Manuals and Publications was vacant and the appellant considering himself eligible for appointment against the said post applied on 4-10-1994 to be considered for promotion against the vacant post of Director. The application was replied on 18-10-1994 that the case was being considered in consultation with the Establishment Division/Federal Public Service Commission. In the meanwhile the Recruitment Rules of 1988 were replaced by the Revised Recruitment Rules, 1995 whereby the post of Deputy Director, Manuals and Publications was created in B-18 and thereafter, the appellant aspired to be, at least, considered for the post of Deputy Director but vide an order dated 17-10-1995 the respondent No,3 a surplus Deputy Director was transferred and posted as Deputy Director (Manuals and Publications). This order was challenged by the appellant vide departmental appeal on 15-11-1995 and after waiting for the statutory period of 90 days he has filed this service appeal.
2. The respondents contested the appeal by filing written objections. We have listened to the arguments on behalf of the parties and perused the record of the case with the able assistance of the learned counsel for the parties.
3. The undisputed facts of this case are:
(a) That the Department of Pakistan Public Administration Research Centre (PPARC) had thwe independent functional units which are "Research", "Statistical" and "Manuals and Publications".
(b) That each functional unit was considered to be independent functional unit with independent rules and chain of promotion.
(c) The PPARC was governed by the notification issued on 19-9-1988 under sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 hereinafter referred to as S.R.O. 88.
(d) In SRO-88 the post of Director (Manuals and Publications) (B-19) and the post of Assistant Director (Manuals and Publications) (B-17) was mentioned at serial Nos.3 and 8 whereas the post of Deputy Director Research (B-18) was mentioned at serial No,4. The appellant was holding the post at serial No,8 and the respondent No,3 was holding the post at serial No,4 whereas the post at serial No,3 was vacant for the purpose of present discussion.
(e) In para. 2 of the SRO-88 the post of Director (Manuals and Publications) was provided to be filled in 100% by promotion.
(f) Under para. 3 of SRO-88 the person eligible for the post of Director (M & P) was Assistant Director (Manuals) B-17 and the conditions of eligibility was 12 years' service in B-17 including 5 years' experience in compilation, codification and editing of administrative codes and manuals.
(g) The line of promotion for the Deputy Director Research, which post was held by the respondent No,3, was to the post of Director Research in B-19 as per para. 3 of SRO-88.
(h) Although the post of Director (M & P) was to be filled 100% by promotion yet under schedule of SRO-88, the minimum qualification and experience and age limit for initial appointment to the post of Director (M & P) was mentioned at Serial No,3 of the schedule as Second Class or Grade 'C'
Master's Degree with 12 years experience in the field of compilation, etc. having maximum age limit of 40 years.
(i) The appellant was on deputation for five years and reported back to the parent department on 23-11-1993. He applied to be considered for the post of Director (M & P). Although he was the only person eligible for promotion from B-17 to the post of Director (M & P) B-19 but in 1994, he was lacking basic condition of eligibility as he had not completed 12 years of service on B-17 because he had joined the service on 22-5-1984. Moreover, he lacked the basic five years experience in compilation, etc. for the only reason that he had been away on deputation where compilation, codification and editing administrative codes and manuals was not included in his job description.
(j) The respondent No,3 held the post of Deputy Director Research but the post was declared as surplus in 1993 and, therefore, she had to report to the Establishment Division. Vide an order dated 26-10-1993 the Establishment Division placed her services at the disposal of the Management Services Division for further posting in P.P.A.R.C. in her own pay and scale and by yet another Notification dated 1-11-1993 the Establishment Division itself posted the respondent No,3 being the surplus officer as Deputy Director Research. One post was declared surplus which was held by the respondent No,3. The latest appointment of the respondent No,3 as Deputy Director Research vide Notification dated 1-11-1993 shows that the second post of Deputy Director Research had also become vacant and, therefore, the respondent No,3 assumed the charge of Deputy Director Research in P.P.A.R.C. on 1-11-1993. It appears that later on, the post of Deputy Director Research was redesignated as Deputy Director, Manual and Publications. On 17-10-1995 by the Management Services Division.
(k) That the SRO-88 was substituted by SRO-95 on 3-10-1995 whereby the method, qualification, experience, age limits and other conditions for the appointment to the posts in P.P.A.R.C. were published. In this Notification (SRO-95) there were major changes as compared to the earlier Notification (SRO-88). The post of Director, (Manuals and Publications) was to be filled 50% by promotion and 50% by initial recruitment and the person eligible for the post of Director Manual was changed to the Deputy Director (M & P). However, the conditions of eligibility were allowed to be the same. Moreover, a new post with the designation as Deputy Director (M & P) (B-18) was created in between the post of Assistant Director and Director with distipulation 75% by promotion and 25% by initial appointment and it was further provided that if no suitable person was available for promotion, the posts reserved for promotion shall be filled by initial appointment and failing that by transfer.
4. The above analysis will show that the appellant was certainly not qualified to be appointed as Director in 1994 under SRO-88 as he lacked the minimum length of service and the experience required. For fulfilling these conditions a further period of two years was necessary. Thus, if the rules were not changed in 1995 the appellant would have achieved the conditions of eligibility for promotion in 1996. Since the rules applicable to him were those of 1988 and he had genuine expectations of promotion to B-19 directly from the post of Assistant Director. The expectation was frustrated by the introduction of intermediary post of Deputy Director (M & P) by the amendment of Rule in 1995.
5. As stated earlier the appellant was not qualified for direct promotion in 1994 but when the rules were changed and the post of Deputy Director (M & P) was created he was certainly eligible, qualified and deserved to be promoted to the post of Deputy Director (B-18) in the Manual and Publication Unit. This newly created post of Deputy Director (M & P) was reserved for promotion to the extent of 75% and by the proviso annexed to para. 2 of SRO-95 the promotion was to be first preference, the initial recruitment was the second one. It Further indicates that if there was nobody eligible for promotion or direct recruitment, then the post could be filled by appointment by transfer. The impugned order dated 17-10-1995 whereby the respondent No,3 was appointed by transfer to the (M & P) Cell was a clear violation of the statutory Notification SRO-95 having force of law. The respondents were unable to explain whether the appellant was considered for promotion to the post of Deputy Director (M & P) under the rules and if so what were the reasons of his being unable for the promotion to that post whereby respondent No,3 was appointed against the same by transfer.
6. The learned counsel for the respondents argued that the respondent No,3 was already senior to the appellant in grade as well as from the date of joining service and, therefore, the appellant had no cause of action to challenge the appointment of respondent No,3 against the said post. This argument is repelled for. the reason that the respondent No,3 was definitely senior but in a different line of promotion. She was not senior to the appellant in his cadre in any way till her disputed redesignation on 17-10-1995. It appears that an attempt has been made to refer to certain Office Memorandum issued by the Establishment Division on 13-9-1994 to provide for the reckoning seniority from a retrospective date to the respondent No,3 but this effort is an exercise in futility because the Office Memorandum cannot change the statutory Seniority Rules, 1993, where a person has to reckon his seniority in a service, cadre or post from the date he joined the same. The appointment of respondent No,3 by resignation order dated 17-10-1995 was the violation of the rules that appear to have been framed for the same purpose. So far as the cause of action of the appellant is concerned, he had a right under the rules to be considered for promotion. Whenever some alien is introduced from the blue whereby the terms and conditions of his service relating to the prospects of promotion are affected, he could certainly file a service appeal under section 4 of the Service Tribunals Act, 1973.
7. As a last attempt it was also argued that the appellant has not challenged the seniority list circulated by the Management Services Division whereby the respondent No,3 was shown senior to the appellant. This argument has no force at all because firstly, the said list which is considered by the Management Services Division as tentative seniority list is not a seniority list at all. Seniority list has to contain the particulars of Officers of each scale. The said list contains the names of Officers from B-18 down to B-16 cumulatively. That may be termed as a list of Officers in the M&P Cell but that is certainly not a seniority list. The respondent No,3 has been shown at Serial No,1 and the appellant has been shown at serial No,2 but the respondent No,3 is in B-18 appointed as Deputy Director, through irregularly, and the appellant was in B-17 working as Assistant Director. There can be no seniority list of two different posts having two different grades assigning seniority as such.
8. The result of the above discussion is that we accept this appeal and B set aside the impugned order dated 17-10-1995 as volatile of the rules and direct that the appellant be considered for promotion to the post of Deputy Director (M & P) under Notification SRO of 1995.
9. No order as to costs.
10. Parties be informed.