' ABDUL HAMEED KHAN KHATTAK (MEMBER).---This appeal is directed against Notification No,13/2/94-95-OMG.I, dated 12-12-1996 whereby appellant was declared as regular Section Officer from 12-12-1996 instead from 12-5-1988.
2. Brief facts are that the appellant was serving as Section Officer in the Ministry of Information and Media Development, Islamabad, as having been appointed as such on 12-5-1988 on the recommendation of Federal Public Service Commission (FPSC) on the basis of Competitive Examination held for the purpose by the FPSC in 1987 and he continued serving in that capacity till 1996 when vide the aforementioned notification (Annexure-II) he was regularized with effect from 12-12-1996 and not from 12-5-1988. Feeling aggrieved the appellant submitted a representation to the Secretary, Establishment Division on 12-1-1997 seeking his declaration as regular Section Officer from 12-5-1988 (Annexure-III) but having received no reply therefrom within 90 days, he preferred instant appeal by assailing the said notification on the ground that the same was ultra vires of the provisions of Civil Servants Act/Rules, 1973, and also of FPSC Ordinance (Function) Rules, he'thus, made the following prayers: "(i) to set aside the Establishment Division's order as contained in the said Division's Notification No, 13/2/94-95-0MG.I, dated 12-12-1996 (Annexure H) which declared the appellant as regular Section Officer w,e,f, 12-12-1996;
(ii) to declare the appellant, and order respondents Nos, 1 and 2 to place him, as regular Section Officer w,e,f, 12-5-1988; and
(iii) to grant the appellant any other relief which this Hon'ble Tribunal may consider fit and proper in the circumstances of the case."
3. In all 477 respondents were impleaded, out of whom only respondent Nos, 1 and 2 represent the Government and the rest are private respondents. Besides Respondent Nos, 1 and 2, private respondent Nos,9l, 150. 175, 210, 230, 314, 323, 329, 343. 346, & 417 have filed objections/parawise comments and the rest of the respondents were proceeded against ex parte.
4. The contesting respondents out-rightly controverted the above assertions of the appellant. Their stance was that the appellant was appointed in 1988 on acting charge basis in view of the recommendations for FPSC which declared him successful in promotional examination and that it was not a competitive examination, thus, he was rightly regularized from 12-12-1996 on availability of vacancies in promotion quota as enshrined in Office Management Group Constitution (Clause 7(b)(ii)(b) and there is no law rule justifying his regularization from 12-5-1988, the date on which he was appointed on acting charge basis.
5. Arguments heard, record perused.
6. The appellant himself argued the appeal by maintaining that as the examination for appointment of Section Officers was conducted by FPSC in 1987 and that the appellant qualified the same, thus, he must be legally deemed as having been appointed as Section Officer through initial appointment and not as promotee and the date of his appointment must be shown in the notification as 12-5-1988 and not as 12-12-1996 as the latter date although related to his regularization but such a delay of six years was to be considered as result of mala fides of the Government and inefficiency on its part and that the impugned notification must be deemed as having retrospective effect i,e, from 12-5-1988 and he in this regard referred to Appeal No, 333(R) of 1984 titled Manzoor Hussain v. Secretary, Establishment Division and others, decided by this Tribunal on 16-2-1987 and the said judgment having been confirmed in appeal by the Hon'ble Supreme Court on 20-7-1987 and he also put reliance on another judgment of the Hon'ble Supreme Court rendered on 28-10-1998 in Civil Appeals Nos,946 to 948 of 1993 (Mehr Sher Muhammad and others v. Federation of Pakistan) and Civil Appeals Nos, 247, 917, 918 of 1993 and Civil Petition. No,664 of 1995 (Salamat Ali Baig and others v. Secretary, Establishment Division and others) decided by the Hon'ble Supreme Court on 20-6-1997.
7. These contentions were seriously opposed from the other side and reliance by the respondents was placed on a decision made by this Tribunal on 31-8-1995 in Appeal No, 210 (R) of 1995, Malik Sher Afzal v. Secretary, Establishment Division, which was confirmed by the Hon'ble Supreme Court vide judgment dated 8-10-1997,
8. We have considered all these facts and examined the record minutely. In our considered view the ratio of decision as propounded in the appeal of Malik Sher Afzal v. Secretary, Establishment Division, both by the FST and the Hon'ble Supreme Court, can very conveniently be pressed into service in the present appeal as the facts discussed in the appeal of Malik Sher Afzal and that of the present appellant are on all fours with each other. In the appeal of Malik Sher Afzal the facts briefly were that Malik Sher Afzal had also qualified Section Officers promotional examination held in 1987 whereafter he was appointed as Section Officer on acting charge basis vide notification dated 12-5-1988 issued by the Establishment Division and he continued to serve as such when he was placed on regular footing in the OMG with effect from the date of issuance of said notification i,e, 12-12-1994. He felt aggrieved thereof as he maintained that he must have been regularized from 12-5-1988, the date when he was appointed as Section Officer, he thus, preferred departmental appeal on 26-1-1995, as the same remained unresponded, he preferred the appeal before the FST but his this contention was not accepted with the result that his appeal was dismissed on 31-8- 1995 against which he sought the Special Leave to Appeal bearing No,597 of 1995 which was also declined on 8-10-1997.
9. In the present case as well as the official like Malik Sher Afzal had also qualified the aforementioned promotional Examination conducted by FPSC in 1987 and appellant was appointed as Section Officer on 12-5-1988 on acting charge basis and in view of his merit position and availability of vacancy he was notified on 12-12-1996 as Section Officer on regular basis although Malik Sher Afzal was alike notified earlier on 29-12-1994, may be, on merit in that examination he was fovourably placed, nevertheless, the submissions raised by Malik Sher Afzal both before this Tribunal and in the Hon'ble Supreme Court did not find favour. Malik Sher Afzal as well as this present appellant were already serving in some grade in between BS-11 to BS-16 when they had taken the aforementioned Promotional Examination for Section Officers meaning thereby both of them were sailing in the same boat and there is no dissimilarity in the remotest sense in the case of both of them and there is no reason whatsoever to differ from the aforementioned well- considered opinion of this Tribunal and the judgment rendered by the Hon'ble Supreme Court in respect thereof is binding on this Tribunal.
10. The ratio. Decidendi to be deduced from the judgment of FST delivered in the appeal of Manzoor Hussain, referred to above, is hardly of any benefit to the present appellant as the case of Manzoor Hussain was based altogether on different footings, in that, Manzoor Hussain at the time of filing of appeal was serving in the Ministry of Defence as Assistant in BS-14. It was on 1-4-1984, the Defence Ministry circulated an office order of FPSC dated 26-3-1984 inviting applications for Promotional Examination for the post of Section Officers. He represented against that order by way of representation dated 28-4-1984 which was rejected on 24-6-1984 and then he preferred the appeal before this Tribunal and the stand taken by him was that the said advertisement was ultra vires of the provisions of Civil Servant Act, 1973, section 7 of the FPSC Ordinance, 1977 para. 7(b) of the office Management No,1/2/75-ARC, dated 27-1-1975 whereby the Office Management Group was formed, and the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 meaning thereby he had challenged the holding of that examination through FPSC and also the appointments which were ultimately made as a result of that examination during the pendency of that appeal by maintaining that in view of the aforesaid legal provision appointments to the posts of Section Officers through FPSC were to be considered as direct recruitment and not by promotion rather the promotion was governed by the 'Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973 which did not provide for holding of any examination rather the promotions were to be made on the basis of seniority-cum-fitness but the appeal failed as it was inter alia held that it was not correct to say that the Promotional Examination could not be held or that only the senior most person should be considered for promotion and ultimately the Hon'ble Supreme Court in the appeal taken before it by Manzoor Hussain, at the far end of its judgment, included in clear cut words that "for selecting the most suitable persons, the holding of Promotional. Examination does not come in conflict with the provisions of section 9 of the Civil Servants Act or the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973" and his appeal also did not bring any fruit.
11. It is, thus, manifestly clear that Manzoor Hussain was simply an Assistant at the relevant time and he had challenged the very holding of Promotional Examination by FPSC for selection of Section Officers as according to him the Section Officers were to be appointed on promotion of the lower staff for which holding of examination was not the requirement rather seniority-cum-fitness was to be taken into consideration but his this stance was turned down meaning thereby the holding of that examination for selection of Section Officers was held to be valid and lawful and it was as a result of taking of that examination that Malik Sher Afzal and the present appellant were appointed as Section Officers on acting charge basis, thus, we do not feel any hesitation in concluding that the point which has been presently agitated by Mashal Khan, appellant, i,e, that he should be considered as selected and regularized through competitive examination conducted by FPSC and that his status was that of selectee through initial appointment and not as a promotee, thus, his regularization was to be done from the date of his having qualified that examination i,e, on 12-5- 1988 does not carry any weight nor such point was ever involved in the case of Manzoor Hussain.
12. We do not feel impressed by the above contention raised by the appellant that he was not a promotee but was selected though initial appointment as a result of competitive Examination conducted by FPSC.
13. The perusal of the relevant record reveals that direct recruitment in the O.M.G. Was discontinued between 1980 and 1988. During that period, the Government appointed 501 officials, those who were already serving in the various Ministries/Divisions (On the post holding B-11 to B-16) as Section Officers on acting charge basis by adding clause (b) (ii) to para. 7 of the Establishment Division O.M dated 27-1-1975, constituting O.M.G. The regularization was to be made according to the merit assigned to those 501 acting charge Section Officers by FPSC on the availability of vacancies in promotion quota. The present appellant had also qualified that examination and was appointed on 12-5-1988 as Section Officer on acting charge basis. He could not be regulaized earlier for want of vacancy in the promotion quota rather he was at once regularized on 12-12-1996 as soon as vacancy was in the sight. In fact, O.M.G. Was constituted by O.M. Dated 27-1-1975 and the Constitution was amended. In 1985 by O.M. Dated 4-11-1985 thereby adding sub-clause (ii) to clause (b) of para. 7, referred to above, whereby the acting charge appointment was permitted against the post of Section Officers in B-17 and the Section Officers so appointed on acting charge basis were to be regularized depending on their merit position in the Promotional Examination and on the availability of vacancy in the Promotion Quota and the appellant was, thus, appointed Section Officer on acting charge basis on the score of having qualified that Promotional Examination held in 1987 by FPSC in pursuance of the above. Amendment dated 4-11-1985. It is to be noted that the appellant of his free consent and volition accepted all the conditions of acting charge appointment contained in para. 7(b) (ii) of O.M. Dated 27-1-1975 and continued serving as such from 1988 to 1996 and he did not assail/challenge the condition/clog of acting charge appointment nor the regularization of numerous acting charge Section Officers made during the years 1988 to 1995, thus, he was in our view estopped by his own conduct to challenge the same in 1997.
14. We may also refer to rule 8-B(7) of the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973, which clearly states that acting charge appointment was not to confer any vested right for regular promotion to the post held on acting charge basis and the appellant having been appointed as Section Officer on acting charge basis was, thus, having no vested right for regular promotion appointment to the post of Section Officer from the date of appointment rather regularization was to be made in accordance with clause (b)(ii) of O.M. Dated 27-1-1975 i,e, on merit position in the Promotional Examination and on the availability of vacancy in the promotion quota. This procedure having been fully applied in the case of appellant he could not be said to be having any grievance or cause. Of action against the impugned notification.
15. We may also add here the ratio decidendi as stands reflected in the judgment dated 20-6-1997, rendered by the Hon'ble Supreme Court in 1997 SCM R 1760 titled Salamat Ali Baig and others v.
Secretary, Establishment Division and others. In that case the F.S.T. Had allowed the appeals to the extent that the regularization of the acting charge Section Officer vide notification dated 7-7-1990 could not be made effective from 31-12-1989 and the words "with effect from 31-12-1989 in the opening paragraph of the notification were ordered to be deleted", meaning thereby the notification of regularization of acting charge Section Officers from the date of their appointment on acting charge basis was held to be ultra vires rather the notification of regularization was ordered to be rectified and corrected to take effect from the actual date when officer was regularized on the availability of vacancy and keeping in view his merit position and the findings arrived at to that effect by the FST were confirmed by the Hon'ble Supreme Court, thus, although the case of Slamat Ali Baig was referred during the arguments by the appellant but on thorough scrutiny it rather disfavoured him as it fully supports the contention of present respondents that the regularization of Section Officers who were earlier selected/appointed on acting charge basis could not be given benefit of the period for regularization purposes during which they were working on acting charge basis i,e, retrospective effect of regularization from the date of acting charge basis was done away with. The well-established principle that acting charge basis does not provide any vested right to the holder thereof cannot be deviated from in the above given peculiar circumstances of the case.
16. For all the aforesaid reasons, the appeal being sans merits, is hereby dismissed by leaving the parties to bear their own costs.
17. Copies of the judgment be sent to all the concerned through registered mail.