' RANA BHAGWAN DAS, J.---This appeal by leave of this Court arises out of the judgement dated 25- 8-1996 of the Balochistan Service Tribunal, Quetta, whereby respondents' service appeal against appellants and respondent Government of Balochistan was allowed with the direction:--
(a) The cases of promotion of eligible Ministerial staff including the appellant as well as the Head Constables be placed before the Departmental Promotion Committee and granted pro forma promotions from the dates of vacancies falling to their respective quota had become available .
(b) The vacancies falling to the quota of initial recruitment may be filled up within the ratio prescribed under the rules and the service of the excess appointees be terminated after due notice and completion of other rules requirements. They can compete when posts falling to initial quota are available for filling according to rules.
(c) A fresh seniority list be prepared after meeting with the above-noted observations.
2. Facts leading to this appeal involving irregular appointments of the appellants ignoring the rights of respondent No,1 and his colleagues for promotion as Excise and Taxation Sub-Inspectors against 25% vacancies are that through order dated 5-5-1993, 29 appellants were directly appointed as Excise and Taxation Sub-Inspectors in violation of the statutory provisions of Balochistan Excise and Taxation Department (Grade 1 to 15). Service Rules, 1982, by ignoring the quota of promotion reserved for Ministerial employees and Head Constables. According to para. 2 of the Appendix to the aforesaid Rules, vacancies of Excise and Taxation Sub-Inspectors are to be filled up as under:--
(1) 25% by promotion on the basis of seniority-cum-fitness from amongst members of the Batochistan Excise and Taxation Department Ministerial Service serving as Senior Clerks with at least 3 years' service as such or 5 years' total service in the Department and if no suitable senior clerk is available for promotion amongst junior clerks with at least 5 years' service.
(2) 25% from Head Constables who are Matriculate, provided that this educational condition shall not apply to such Head Constables who entered the service before 1st July, 1970.
(3) 50% by initial recruitment with qualification of Intermediate or equivalent examination in 2nd Division. It was further stipulated that in case senior clerks, junior clerks and Head Constables, be not available or not found suitable for promotion, vacancies reserved against such categories were to be filled in by initial recruitment on the recommendation of the Selection Committee.
3. Respondent Muhammad Khan took serious exception to the direct recruitment of the appellants in violation of his rights and those of other members of the Ministerial Staff but he was promised to wait till any post was created or became available to fill up the same by promotion quota. Feeling aggrieved, he filed a service appeal under section 4 of the Balochistan Service Tribunals Act, 1974, seeking to assail the appointment of the appellants as illegal; a direction to the respondent- Government to appoint 50% Excise and Taxation Sub-Inspectors from amongst the senior officials of the department against the available vacancies in the year 1993 in accordance with Rules; a direction for his promotion to the post of Excise and Taxation Sub-Inspector and award of seniority over and above the appellants.
4. Appellants as well as respondent Government resisted the appeal before the Service Tribunal and defended the action on a number of grounds inclusive of non-maintainability of appeal.
5. From the record it appears that during the pendency of the appeal before the Tribunal as many as five senior clerks were promoted as Excise and Taxation Sub-Inspectors while respondent Muhammad Khan was promoted as such within two months of the decision of the appeal.
Precisely it may be stated that Mr. Habib-ur-Rehman, senior clerk was promoted as Excise and Taxation Sub-Inspector on 18-7-1994. M/s. Saleem Ullah, Sher Zaman and Muhammad Yaqoob, Senior Clerks senior to the private respondent as per the seniority list as on 24-11-1992 were promoted as Excise and Taxation Sub- Inspectors vide order dated 30th August, 1994. Mr. Abdul Rehman, Senior Clerk was promoted as such vide order dated 28th September, 1995 whereas contesting respondent Muhammad Khan, was promoted as Excise and Taxation Sub-Inspectors vide order, dated 15th October, 1996.
6. Mr. S.A.M. Quadri, learned Advocate-on-Record for the appellants while conceding that the appellants were directly appointed as Excise and Taxation Sub-Inspectors in ignorance of the rights of the departmental candidates, attempted to justify the action by submitting that apart from respondent Muhammad Khan no other employee had made any grievance of the direct selection of the appellants. According to learned Advocate-on; Record amongst Head Constable not a single person was available and found suitable for promotion with the consequence that the department was obliged to make direct recruitment of the appellants after due advertisement and interview by a Selection Committee appointed for this purpose. There is, however, no record made available to substantiate this statement at the Bar.
7. Mr. Dil Muhammad Tarar, learned Advocate Supreme Court appearing for the respondent- Government of Balochistan frankly stated at the Bar that he had no special instructions on behalf of the respondents. He was, however, not in a position to controvert the factual and legal position that recruitment and selection Of the appellants to the office of Excise and Taxation Sub-Inspectors was made in blatant violation of the statutory Service Rules, which were followed only in their breach rather than adherence. We are not inclined to agree with the submission that simply because the members of the Ministerial Staff did not object to the selection of the appellants the action of the respondents would be justified and thus immune from judicial scrutiny. In law any illegality on the part of public functionaries can be brought to light by any aggrieved party or person interested therein. We are of the considered view that after creation of as many as 29 posts, department should have taken care of strictly following the statutory rules for selection and recruitment of the suitable candidates in consonance with the spirit of law. Indeed no record has been produced to indicate that no suitable candidate was available either amongst senior clerks/junior clerks or the category of Head Constables for whom 25% quota was reserved in each category. The noting of the Director, Excise and Taxation, Quetta and the minutes of the meetings between the Secretary, Finance and Chief Secretary, Balochistan as well as Member-III, Board of Revenue, Balochistan do not spell out that at any stage departmental candidates, who had put in required length of service and. Possessed requisite academic qualifications, were ever considered for promotion. Even in the advertisement inviting application for the posts neither the number of vacancies was mentioned nor was it disclosed that the departmental candidates were eligible to apply for the posts or that they were totally unfit and unsuitable for promotion. We feel persuaded to agree with the findings of the Service Tribunal that injustice had been done to the promotion quota as the vacancies of not only Senior Clerks but also of the Head Constables had been illegally diverted to the initial recruitment quota without reason or justification in the eyes of law.
8. Adverting to the quota earmarked for appointment by promotion out of 29 posts, in our view 15 posts should have been filled in by promotion from amongst the Ministerial Staff and the Head Constables. Assuming without conceding, that there were no Head Constables available under/or eligible for promotion on the crucial date, it is not disputed that there were a number of senior clerks working in the department fit enough to be considered for promotion. It appears that after the controversy raised and issue agitated by respondent Muhammad Khan, official respondents were constrained to promote as many as five senior clerks on the basis of their fitness and seniority in due course during the pendency of the appeal before the Service Tribunal. Taking into consideration this aspect of the case which has not been disputed before us, we hold that such senior clerks promoted subsequent to the appointment of the appellants having been regularly promoted shall stand senior to the appellants. Indeed these persons were wrongly excluded from consideration for appointment though they were legally entitled to promotion as of right subject to seniority-cum-fitness and by directing the consideration of their pro forma promotion, learned Service Tribunal neither acted illegally nor arbitrarily. The fact that five senior clerks were promoted during the pendency of the appeal before the Service Tribunal and the contesting respondent was promoted soon after the decision of the appeal supports our view that for all intents and purposes they were fit and suitable for promotion at the time of appointment of the appellants. Since the Service Tribunal has directed the consideration of the case of promotion of respondent and his other colleagues and to this extent the judgment has been complied with to the extent of six persons from amongst the appellants irregularly appointed, junior most incumbents of the office of Excise and Taxation Sub-Inspectors shall have to be dislodged from their ill-gotten appointment in contravention of the statutory rules. Needless to reiterate departmental candidates promoted subsequent to the recruitment of the appellants shall rank senior to the appellants and their names shall be arranged in order of seniority as assigned to them earlier and on the principle that incumbents promoted in earlier batch shall rank senior to the incumbents promoted in the subsequent batch. As no record has been produced with regard to the promotion rights of the Head Constables serving in the department, for whom 25% vacancies stand earmarked under the Rules, we endorse and approve of the verdict of the Tribunal that the case of this category of employees be also processed for promotion subject to eligibility and fitness so as to fill up their quota and restore their rights. Respondent-Government would ensure strict compliance with this part of the judgment of the Tribunal in consonance with the terms and the mandate of law as enunciated under the Service Rules.
9. Subject to the observation as above and modification in the impugned judgment this appeal is accordingly disposed of.