' ABDUL HAMEED KHAN KHATTAK (MEMBER).---We propose to dispose of all the aforementioned appeals by this single judgment recorded in Appeal No,57(R)C.E. Of 2000, as the facts and law points involved therein are almost of identical nature.
2. By means of this appeal, the orders dated 3-10-1994 and 21-5-1999 stand assailed whereby respondents refused to antedate the promotion of appellants as Director.
3. Brief facts are that the appellant joined the respondent-Bank in 1974 as Assistant Director after his selection in the prescribed manner like respondent No,2. Anyhow appellant was senior to respondent No,2 on the merit basis. He and respondent No,2 where promoted as Dy. Director and Joint Director in 1983 and 1988 respectively, and as per seniority list of 1993, appellant was shown at Serial No,38 and respondent No,21 at Serial No,41. On 3-10-1994, the respondent-Bank granted accelerated promotion as Directors to Sher Zaman Khan (respondent No,2), S. Abid Ali and Ch. Abdul Majeed but the appellant despite being senior to respondent No,2 and Ch. Abdul Majeed and having better and unblemished service record was neglected against which he made representations on 8-11-1994, 14-12-1995 and 4-2-1997 and the appellant was appraised on 22-3- 1997 by the respondent that his representations were turned down. He was promoted as Director in, August, 1996 w,e,f, 1-1-1996 but he kept on pursuing the matter of antedation of his promotion by submitting further representations on 7-4-1994, 12-11-1997, 24-12-1997, 14-1-1998, 24-2-1998, 27-2- 1998 and 25-5-1999 but none of the same was responded. In the meantime Nazir Ahmed Minhas, Joint Director, Naik Muhammad Javed, Joint Director and Abu-Huraria Sabir, Assistant Director, approached this Tribunal by bringing appeals who were also placed in the same position as that of appellant and their appeals were accepted on 21-5-1999 with the result that their promotions were antedate. Present appellant immediately on coming to know about antedation of promotion of said three officers on 1-11-1999, preferred a departmental appeal on 5-11-1999 for grant of same benefit which was followed by a subsequent reminder on 5-1-2000 but the same remained unresponded. Hence this appeal on 4-3-2000 with the prayer that the respondent No,1 be directed to antedate the promotion of appellant as Director from 1-1-1996 to 1-1-1994 with all consequential back benefits.
4. The appeals was hotly contested by the respondents by raising preliminary objection of limitation. With regard to fact, the stands taken by the respondents was that the accelerated promotions were made in 1994 on the recommendations of the concerned Divisional Heads being pre-requisite of criteria for the same but the name of appellant was not recommended by the concerned Divisional Head, hence he was not considered for such promotion. It was further maintained that the junior officers were promoted as they fulfilled the criteria fixed for accelerated promotion whereas the appellant failed to meet such criteria. According to respondents, at the time of grant of accelerated promotion, the seniority did not count.
5. Arguments heard and record perused.
6. Learned counsel for the appellant has raised a legal objection with regard to promotion of the junior officers on the basis of accelerated promotion in that, the Policy and the Criteria formulated by the respondent Bank for accelerated promotion was not approved by the Federal Government, thus such accelerated/out of turn promotion legally could not take effect in view of the provisions of Regulation No,39(2) of Agricultural, Development Bank Ordinance, 1961.
7. In order to appreciate pros and cons of the above legal objection, it would be convenient to reproduce here the relevant provisions of Agricultural Development Bank Ordinance, 1961, Agricultural Development Bank General Regulations, 1961 and Agricultural Development Bank Rules, 1961.
8. In Chapter-III, section 8 of Agricultural Development Bank Ordinance, 1961, the general direction and superintendence of the affairs and business of the Bank shall be entrusted to a Board of Directors, to be constituted in accordance with the provisions of section 9 and such Board may exercise all such powers and do all such acts and things as may be exercised or done by the Bank, subject to the provisions of this Ordinance
9. Under section 9 (ibid), the Board shall consist of the various Directors to be appointed by the Federal Government as enumerated therein including its Chairman.
10. Under section 10 (ibid), the Chairman shall be appointed by the Federal Government, who shall be the Chief Executive Officer and shall on behalf of the Board direct and central the whole affairs of the Bank shall subject to such rules as the Federal Government may make.
11. Under section 38, he Federal Government may make rules for carrying out the purpose of this Ordinance and where the regulations framed under the succeeding section i,e,, section 39, are inconsistent with the, rules framed under this section, the rules shall prevail, and without prejudice to the provisions of 'subsection (1), such rules may provide for:--
(a) the manner in which and the conditions subject to which the shares of the Bank may be held and transferred and generally all matters relating to the rights and duties of the shareholders;
(b) the duties and powers of the Chairman;(c) .............
(d) ..........
12. Under section 39 (ibid), the Board may make regulations not inconsistent with this Ordinance or the rules to provide for all matters for which provisions is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance and the efficient conduct of the affairs of the Bank and under its clause (2) without prejudice to the generality of the provisions of subsection (1), the regulations may provide for:-- (a)..
(b)
(c)...
(d)..
(e) the recruitment of the employees of the Bank, the terms and conditions of their service, ' the constitution and management or Provident Funds for the employees of the Bank and all other matters connected with any of these things;
(f) the duties and conduct of employees and agents;
(g) ..
(h) ..
"Provided that no regulation made with respect to matters mentioned in clauses (e) and (f) shall take effect until it has been approved by the Federal Government."
13. In Chapter IV and rule 23 of Agricultural Development Bank Rules, 1961 dealing with the powers of the Chairman, it is specifically given that the Chairman shall have the powers;
(a) of a Head of the Department, with reference to such rules in force in the Ministries and Departments of the Federal Government as are adopted by the Bank;'
(b) to appoint officers on the recommendations of the Selection Board appointed by the Board in pursuance of the regulations made under the Ordinance and such other powers in respect of officers and staff of the Bank, as have been delegated under the Agricultural Development Bank (Staff) Service Regulations, 1961; ' Provided that no appointment to a post higher than that of a Branch Manager shall be made without the approval of the Board,....;
(c) To deal, finally with all cases of promotion to Class-I post upto and including the post of Branch Manager;
14. Whereas the powers of the Executive Committee as enumerated under rule 22 (ibid), relates to sanction expenditure, write-off losses, to finally sanction loans, respectively.
15. Learned counsel for the respondents, however, referred to clause 24.3 (Annual Promotion Policy) of Chapter XXIV of Personal Manual, 1983 of the respondent-Bank and especially to sub-clause (3) to support his stance about the validity of accelerated promotions and the competency of the respondent-Bank in that respect and sub-clause (3) of clause (24.3) (ibid) is reproduced as under:- ' In order to provide due recognition to meritorious service, ten per cent of the number to be promoted each year will be considered subject to availability of suitable employees purely on merit from amongst the employees who have minimum of three years service in the scale as on 31st December last and have received outstanding confidential reports for three consecutive years.
The condition of minimum three years service can be waived by the Chairman at his discretion for posts within his competence on merits of each case."
' It transpired that the provisions of this sub-clause relating to the criteria of accelerated promotion was introduced from 15-3-1981 as 'per Annual Promotion Policy so that it may provide for career development preventing stagnation and recognising merit, meaning thereby the evaluation criteria for accelerated promotion was different from the ordinary promotion. As a matter of fact, the basis of accelerated promotion was the above criteria available in the Annual Promotion Policy introduced from 15-3-1981.
16. In pursuance of the provisions of section 39 of ADB Ordinance, 1961 the Board framed with the prior approval of the Federal Government, Regulations for the first time in the year 1961, which are called ADB (Staff) Service Regulations, 1961 commonly known and referred to as SSR, besides other Regulations dealing with the Employees Provident Funds, Efficiency and Discipline, Benevolent Fund Pension-cum-Gratuity and General Provident Fund. The Personnel Manual, 1983 comprises of three parts out of which Part-I contains only those portions of the Staff Service Regulations which are still operative, Part-II contains a complete set of the ADB Employees Provident Funds Regulations, 1961 which are still operative and Part-III is a Compendium of all the standing instructions relating to Personnel Administration.
17. The learned counsel for the respondent-Bank argued with much force that obtaining of approval of the Federal Government with regard to matters enumerated in clauses (e) and (t) of section 39 of ADBP 'Ordinance, 1961 was "One time exercise" and according to him, this exercise was validly taken in hand during the year 1961 when ADB General Regulations 1961 were framed with the prior approval of the Federal Government. Hence thereafter there was no need. Or legal requirement to seek such approval of the Federal Government at the time of introduction of Accelerated Promotion Policy during the year 1981. We have carefully scanned all the above legal provisions relating to this crucial matter but we do not subscribe to this limb of arguments. In our considered view, it is an "all/many time exercise". A bare reading of the proviso available under section 39 (ibid), leaves no room for doubt that it is obligatory for the respondent-Bank authorities to obtain such approval from the Federal Government whenever any regulation is introduced with regard to terms and conditions of the service of the Bank employees and until and unless such approval is sought, no regulation so introduced shall take effect. As per the stand taken by the learned counsel for the respondent, no such prior approval was sought from the Federal Government before or after framing of Annual Promotion Policy about accelerated promotion dated 15-3-1981 nor any such document of approval was produced before us, which was admittedly a stark violation of the above proviso which is mandatory and obligatory in nature as the relevant word used therein "shall". Grant of accelerated promotion over and above ordinary promotion, does certainly adversely, affect scores, 'nay, hundreds of senior employees of the same cadre and surely it was for this purpose in view that a clog was put on the powers, of Bank Authorities that aforementioned proviso in the form of prior approval of the Federal Government regarding any new regulation or change in the existing regulation about the terms and conditions of service, was given under section 39 (supra). It was a check on the powers and discretion of the Bank Authorities because if they were deemed to be possessed of unfettered powers of grant of accelerated promotions at their own sweet-will, may be, to the blue-eyed and to those who are near and dear to them, those employees who were although having exemplary and outstanding service record, but were not falling within this narrow range of favoured employees, will become victim of nepotism, favourtism and deprivation. Of due promotion. The net result of above discussion is that as no approval of the Federal Government was obtained before and after introduction of Accelerated Promotion Policy mentioned above, hence all the accelerated promotions resulting therefrom being violative of the legal. Provisions i,e, of section 39 of ADB Ordinance,' 1961, are held to be illegal, null and void as the very foundation of the same being baseless and unlawful, the superstructure raised thereon shall automatically be deemed as razing to the ground, of course, until such approval referred to above was obtained/sought from the Federal Government.
18. As a corollary to the above findings, the appellant who is sailing in the same boat by claiming to be at par with those on whom accelerated promotion was showered, also cannot be benefited under the above Policy of accelerated promotion nor his ordinary promotion can be antedated on that count.
19. The upshot of above discussion is that the appeal fails, which is hereby dismissed by leaving the parties to bear their own costs.
20. This judgment, mutatis mutandis, will apply also to all the aforementioned connected appeals, which shall be deemed as also having been dismissed.
21. Parties to be informed by sending copies of this judgment to them through registered mail.