' AFTAB AHMED (MEMBER).---Appellant Aurangzeb Khan Toru joined the National Institute of Health
(NIH) as Management Officer (BPS-18) in June, 1988. The post of Management Officer held by the appellant was later redesignated as Deputy Director (Purchase and Procurement) vide office order dated 11-11-1993. In May, 1997 vide Order No, 413 of 15-5-1997 the appellant was allowed to work on current charge basis against the post of Director (Purchase) BPS-19. He held the current charge for few days and by office order dated 22-5-1997, he was transferred and posted as Deputy Director, TB/Malaria set up which had merged with the NIH since March, 1997. Aggrieved by his release from the Current charge appointment and posting as Deputy Director, TB/Malaria Centre, the appellant made representation which was declined by letter dated 9-6-1997 issued with the approval of the competent Authority. Hence the present appeal was filed on 16-6-1997 with the prayer that the impugned orders dated 22-5-1997 and 9-6-1997 may be set aside as being illegal and mala fide.
2. The appeal was admitted and comments were called for wherein it is stated that the appellant was never given the current charge of the post of Director but was simply allowed to look after the work which was later cancelled in the interest of the Institute keeping in view a number of complaints appearing in newspapers. The Executive Director is said to be competent to transfer an employee from one seat/section to another and the allegations of mala fide have been denied.
3. At the time of regular hearing the case on behalf of the appellant was argued by Mr. Tanvir Bashir Ansari, Advocate. Learned counsel assailed the impugned order on the following grounds:-- -
(i) That the appellant having requisite qualification and length of service, was eligible for promotion to the post of Director and therefore, his current charge appointment made vide order dated 15-5-1997 shall be deemed to have been a regular one and his release from the said current charge appointment, will amount to demotion. In this connection he relied on the case reported as Federation of Pakistan and others v. Rais Khan 1993 SCMR 609.
(ii) That there was no post of Deputy Director in the Malaria/TB set-up against which the appellant could be appointed on transfer; and
(iii) That the order was mala fide to deprive the appellant from holding the higher post of Director.
4. Defending the Institute, Dr. G.S. Khan, Advocate submitted that the recruitment rules for appointment to the newly created post of Director (BPS-19) had not yet been finalized and it was premature to say that the appellant was eligible for promotion to the post and fulfilled the requirement of the rules. It was submitted that appointment to the post of Director was to be made after the rules were framed and therefore, the claim of the appellant to continue on current charge appointment on the basis of his qualification and experience, was misconceived. Dr. Khan further submitted that in accordance with Item No,6 of the NIH Regulations notified on 20-2-1989, appointment to a post in BPS-19 was to be made with the approval of the Minister Incharge on the recommendation of the Selection Committee; that in the present case the former Executive Director of the Institute Dr. Mohsin Ali while leaving the Institute on his appointment as OSD ordered looking after of the post of Director on current charge basis by the appellant without the approval of the competent Authority. The office order dated 15-5-1997 was, therefore, said to have no sanctity. It was added that the appellant had been asked to look after the post of Director by the outgoing Executive Director as a favour to him and on the other hand to protect his own (former Executive Director's) interests as regards the relevant evidence/official record being placed in the custody and in charge of the appellant. Learned counsel for institute arguing the case further vehemently denied the allegations of mala fide stating that the order of transfer had been made in public interest as certain inquiries were being conducted against the appellant and the former Executive Director for financial irregularities etc. And the appellant was transferred from the post of Deputy Director (Purchase) to stop him to meddle with the evidence/official record about corruption and other irregularities. It was submitted, further that both the appellant and the former Executive Director has been placed on the Exit Control List by the Government. As to the non- existence of any post of Deputy Director in the Malaria/TB set-up, learned counsel submitted that the appellant has been adjusted against a Grade-18 post of Senior Scientific Officer and was regularly being paid his salary since his transfer in May, 1997. It was said that every employee was liable to serve in any post in the institute or even outside the institute as may be determined by the Executive Director in accordance with Item 17 of the Regulations dated 20-2-1989. Besides, it was added that the appellant had been transferred and posted to an equivalent post carrying the same scale of pay and other fringe benefits. The appeal was, therefore, said to be without merits.
5. We have examined the arguments advanced by both the parties and also gone through the relevant record. It is an admitted fact that the recruitment rules for appointment to the post of Director BPS-19 have not so far been framed, and therefore, it cannot be said that which of the officers are eligible for promotion/appointment to the said post of Director. With this factual position the contention of the learned counsel for the appellant that A the appellant is eligible for appointment/promotion to the post of Director is untenable. Besides, it is a well-settled law that current charge appointment to a post does not confer any right for regular promotion to the said post. The case-law cited by the counsel for the appellant in support of his contention is not relevant to the facts of the present case. The appellant had been given current charge appointment and in the absence of any recruitment rules for promotion appointment to the post the appellant by no stretch of imagination can claim or can be considered to have been regularly promoted to the said post. As to the second objection that there was no post of Deputy Director in malaria/TB Centre we find that a post of Senior Scientific Officer BPS-18 was available in the institute and had become vacant by posting of the incumbent as Deputy Director (Purchase) and the appellant had been adjusted against the said post of BPS-18. Having the same terms and conditions of service as to his pay, the. Transfer cannot be said to be on less favourable terms than those he enjoyed as Deputy Director (Purchase). Learned counsel for the appellant had also taken the plea of mala fide in the matter of transfer No evidence in support thereof could, however, be produced before the Court on the other hand, counsel for the Institute was able to show that the appellant had' 'been given current charge appointment by the outgoing Executive Director at the last moment of his departure and in the background of allegations of corruption and other financial irregularities, this appears to be a favour. Therefore, we are of the opinion that there had been no mala fide in the transfer of the appellant and that it was in best interest of the institute.
6. For the reasons discussed above, the appeal has no merit and is accordingly dismissed with no order as to costs. Parties be informed.
(Sd.)
' Aftab Ahmed (Member).
(Sd.)
' Roshan Ali Mangi (Member).
7. MUHAMMAD RAZA KHAN (MEMBER).---I had the facility of going through the judgment proposed to be delivered by my learned brothers. While agreeing with the observations and findings that since the rules pertaining to the post of Director have not been finalized as yet and the Current charge appointment cannot vest a right in the incumbent thereto to hold such a post, the appeal is liable to be dismissed as proposed hereinbefore and I concur accordingly, however, I would like to add the following few lines as continuation of the above findings.
8. Under the Regulations applicable to the employees of the respondent-Department an employee is liable to serve in the interest of public anywhere inside or outside the institute, This Regulation is in line with the provisions contained in section 10 of the Civil Servants Act, 1973, wherein it has been provided that "Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government". This section was recently amended and the words "equivalent or higher" were inserted between the words "any" and "post".
Thus, a civil servant is liable to be posted anywhere but the spirit of the statutory provisions is two- fold; firstly there must be a "post" available for such a posting and secondly, the posting of the employee concerned shall be for the purpose of "service" under any Government or Organization.
We have noticed that in this case the appellant, who was admittedly holding the post of Deputy Director, Purchase and Procurement Department, has been transferred as Deputy Director in the newly merged T.B. Malaria set-up vide the impugned order dated 22-5-1997. During the course Of arguments, we meticulously analysed the nature and number of ,posts available and transferred at the time of merger of said T.B. Malaria setup. The post of Deputy Director is nowhere available there. The Department has switched its position during the arguments that the appellant was posted as Senior Scientific Officer in the same scale of pay of Deputy Director i,e, BPS-18 During the arguments the Service Regulations of 1989 of the respondent-Department were placed on file which demonstrate that there are several posts of Senior Scientific Officers BPS-18 but the posts are related to the subjects of Chemical Pathology, Bacteriology, Parasitology, Pathology, Serology, Virology, Microbiology, Rabies Vaccine, B.C.G., Chemical Engineering, Microbiology, Pharmaceutical, Botany, Biochemistry etc. Etc. The appellant admittedly holds a Post-Graduate degree in Business Education which has nothing to do with the Science or Scientific Research. Thus, the posting of the appellant being Master in Business Education is not at all justified as Senior Scientific Officer because he will not be able to "serve" the Institute in such a situation which was the basic requirement of the statutory provisions.
9. Similarly the respondent No,3, who was appointed as a Senior Scientific Officer, has been allegedly posted as Deputy Director, Purchase and Procurement, for which the was not at all qualified under any of the rules applicable to such post and consequently he will also be unable to serve the Institute in such a capacity.
10. It was vehemently argued on behalf of the respondents that the appellant was being paid the salary in the same scale and was given the same benefits as he was enjoying earlier and there was no violation of the terms and conditions of service. I am humbly of the opinion that the payment of salary in a particular scale is neither the only consideration for a conscientious civil servant nor the authority making such an order will be absolved of the charge of misuse of resources because by such an order the employees are placed in such a situation that they cannot utilize even a single minute of their service in the interest of the respondent-Department because they are neither qualified nor trained for the job.
11. We have also noticed in this case the wild misuse of authority by the competent authorities as they passed certain orders without any logic or statutory support. The appellant was ordered to hold the Current Charge of the post of Director, Purchase and Procurement, when admittedly the post was not yet created and the rules were not finalized. The Current Charge appointments are made only as a transitional measure for a period of two to six months. -He was said to be holding tile post not on Current Charge but merely he was looking after the post. "Looking after the post" is entirely alien concept in the service matters. A person is either holding the post on regular, ad hoc, current charge, acting charge or additional charge basis. There is neither any concept of looking after a post on gratis basis nor there is any concept of mere "adjustment" of an employee against any other post without the job descriptions and capabilities to perform service in the interest of public or organizations. This autocratic type of administrative order speaks of the lamentable administrative approach where the authorities consider themselves to be above the statutes, rules or regulations. It appears that such a type of illogical and autocratic orders result in the failure of the autonomous bodies in the public sector. The concerned authorities may take notice of such glaring irregularities so that they may not be repeated to the disadvantage of the taxpayers. The exchequer and the nation as a whole.
12. The only argument that could he advanced on behalf of the Department for the so-called "adjustment" of an administrative expert against a post requiring scientific background and expertise was that an enquiry was being held against the officer. This is an illogical reasoning. To hold an enquiry, proper procedure as laid down under the Regulations of 1989 could be adopted and if necessary, the concerned civil servant can either be placed under suspension or can be posted as OSD but an administrator cannot be converted into a Scientist merely for disciplinary proceedings. With these observations I agree to the above conclusions.