' BASHARAT AHMAD SHAIKH, J.---Doctor. Syed Mushtaq Ahmad Gardazi, who was posted as Executive Director Abbas Institute of Medical Sciences, filed a writ petition in the High Court in which he made the following averments. He was working as Director Health Services (CDC) when on 30th September, 1998 was transferred and posted as Executive Director Abbas Institute of Medical Sciences. He was performing functions against the said post when another order was issued on 20th October, 1998 which, so far as it related to Dr. Mushtaq Gardazi, was to the following effect:- "Dr. Mushtaq Ahmad Gardazi, Director Health Services, (CDC) B-19 being senior most is appointed on current charge basis against the post of Director Health Services B-20. Created through Government Order No,SH-3789-98-1-98, dated 31st August, 1998 in the Development Scheme Northern Health Project." [Translated] ' Even after the aforesaid order Dr. Mushtaq Ahmad Gardazi continued to work as Executive Director AIMS. Being senior most officer after the Director General Health Services, he 0/as to be promoted to B-20. Therefore, a working paper was prepared for consideration of Selection Board No,2 in which it was proposed that Dr. Mushtaq Alunad Gardazi may be approved as Executive Director of AIMS B-20. Reportedly the Selection Board accorded approval on 29th January, 1999. However, till filing of the writ petition on 24th March, 1999 the minutes of the Selection Board were not sent for approval of the competent Authority; instead it was maliciously being manoeuvred that writ petitioner's name be deleted from the recommendation. This was being done on a wrong and baseless letter written by the Secretary Population Welfare of the Government who was previously Executive Director of AIMS.
2. It was alleged in the writ petition that the respondents were bound to secure approval of the competent Authority but they were procrastinating due to malicious reasons. It was prayed that direction may be issued that minutes of the meeting approved by the Selection Board No,2 may be got approved from the competent Authority. It was further prayed that direction may also be issued that Dr. Gardazi's name may not be deleted from the minutes mentioned above. Azad Government of the State of Jammu and Kashmir, Chairman Selection Board No,2, Selection Board No,2 and Secretary Services and General Administration were impleaded as respondents.
3. In the written statement filed by the respondents it was not specifically denied that the Selection Board had decided to recommend the name of Dr. Gardazi for promotion against the post of Executive Director AIMS B-20 but it was stated that Dr. Gardazi could not be promoted to the - said post of Executive Director in light of the relevant departmental rules. A learned Judge in the High Court summoned the relevant file and found that the Selection Board had duly recommended the promotion of Dr. Gardazi against the post of Executive Director AIMS and then proceeded to observe as follows:-- 'After perusal of the Item No,25 of the minutes of the meeting of the Selection Board and the letter addressed by Selection Board to Secretary Health, there remains no doubt that the petitioner has been approved by the Selection Board for the grade and post. There is no reason not to act upon the recommendations of the Selection Board. The appointment/promotion against the posts in the service of Government are to be made on the basis of recommendations of the appropriate Selection Committee or Board as the case may be. No reason or explanation is given by the learned counsel for respondents as to why the recommendations of the Selection Board are not being acted upon and the notification issued on the basis of that recommendations in spite of the fact that Secretary Health has been informed by the Selection Board on 5-4-1999."
' Ultimately the learned Judge issued a direction to the respondents to act upon the recommendations within thirty days.
4. Azad Government of the State of Jammu and Kashmir and Dr. Shabir Kayani Medical Specialist District Headquarters Hospital Rawalakot have filed separate appeals to challenge the judgment of the High Court. Objections have been raised by Syed Nazir Hussain Shah Kazmi about the maintainability of both the appeals. About Dr. Shabir Kayani's appeal the learned counsel submitted that the said appellant was at No,6 in the Specialists Cadre and is not in B-20. He thus has no connection with the post of Executive Director AIMS, appointment to which can be made only by transfer of an officer who is already in B-20. It is contended that Specialists Cadre is different from General Cadre to which Dr. Gardazi belongs.
5. Admittedly Dr. Gardazi is the senior most officer in the Health Department after the Director General. Dr. Shabir Kayani is far below in seniority and nowhere near the top positions. He is not yet placed in B-20. It was contended by Mr. Tabassum Aftab Alvi, his learned counsel, that it is not necessary to be an aggrieved party to have a vested right in the strict juristic sense and even tangible interest gives locus standi to challenge an adverse order. He has also cited some reported judgments of this Court which lay down the said principle. Be that as it may, Dr. Shabir Kayani does not even have tangible interest as discussed above. Therefore, his appeal is not maintainable and is dismissed.
6. The objections about the maintainability of the other appeal is based on the principle of estoppel. The other appeal, being Civil Appeal No,17 of 2000 titled Azad Government and others. v.
Dr. Syed Mushtaq Ahmad Gardazi, has been filed by Azad Government of the State of Jammu and Kashmir, Chairman Selection Board No,2, Selection Board No,2 and Secretary Services and General Administration Department. It was contended by Syed Nazir Hussain Shah Kazmi that these appellants were party to the proceedings which culminated in approval of Dr. Gardazi's promotion and cannot now turn round to plead that Dr. Gardazi could not be legally promoted as Executive Director AIMS. We have gone through the proceedings 'of the Selection Board placed on the record.
Even without going through the proceedings it is clear that Azad Government was at no stage involved in the process. Prime Minister is the competent Authority in the present case. The working paper was drafted in the Health Secretariat for which no permission of the Prime Minister of Azad Jammu and Kashmir was required. The working paper was then laid before Selection Board No,2 and at that stage also the Prime Minister had no concern with the proceedings. It is Dr. Gardazi's case, as put forward in the writ petition, that the recommendations of the Selection Board were not forwarded to the Prime Minister. Thus there is no manner of doubt that the principle of estoppel can by any stretch Of imagination apply to the Prime Minister. So far as the Selection Board No,2 is concerned, it is true, as held by the learned Judge in the High Court, that the Selection Board took a decision to recommend Dr. Gardazi for promotion as Executive Director AIMS but it is stated by the Selection Board now that the decision was against the relevant departmental rules. It is well- settled that there is no estoppel against law. Therefore, if at any stage an illegality is found it can always be pleaded. Apart from that the argument based on estoppel fails to take note of the fact that principle of estoppel is only applicable if a declaration, act or omission is acted upon by the other party as is evident from the- phraseology of Article 114 of the Qanun-e-Shahadat which reads as follows:-- "Estoppel.--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
' In the present case there is no such situation, therefore, this argument has to be repelled on this score also.
7. Now we come to the merits of the case. The post of Executive Director AIMS is mentioned in Entry No,1 of the Azad Jammu and Kashmir Health Department Service Rules. According to the entry the post is in B-20 and method of recruitment is as follows:-- "By transfer from amongst the officers of B-20 possessing the qualification/experience as per column 6 in the Health Department/AIMS . "
' The provision reproduced above clearly shows that the only method which can be adopted for filling in the post of Executive Director AIMS is to transfer an officer of the Health Department/AIMS who is already in B-20. Therefore, the short question which will resolve the issue is whether Dr Gardazi was in B-20 at the relevant time. Syed Nazir Hussain Shah Kazmi vehemently submitted that Dr. Gardazi was placed in B-20 on 20th October, 1998. For this claim he referred us to the order passed on that date which, so far as it relates to Dr. Mushtaq Gardazi was as follows:-- "(1) Dr. Mushtaq Ahmad Gardazi, Director Health Services, (CDC) B-19 being senior most is appointed on current charge basis against the post of Director Health Services B-20 created through Government Order No,SH-3789-98-1-98, dated 31st August. 1998 in the Development Scheme Northern Health Project." [Translated]
8. First thing which is clear from the order reproduced above is that Dr. Gardazi was in B-19 prior to 20th October. The fact had become clear when we reproduced the order, dated 30th September 1998 by which Dr. Gardazi was posted as Executive Director AIMS because that order specifically refers to him as an officer in B-19. From this it follows that his appointment was in violation of the departmental rules. The order reproduced above also shows that Dr. Gardazi being the senior most officer in the Health Department was "appointed on current charge basis" against the newly created post of Director Health Services B-20. The order itself does not state that Dr. Gardazi has been promoted but it says that he had been appointed on current charge basis. It is a fact of elementary knowledge that appointment on current charge basis is not a promotion. The actual position is that "appointment on current charge basis" and the "promotion" are distinctly different in every sense. The position will become clear when we examine the relevant provisions. The provision about appointment on current charge basis is contained in Rule 10-B of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. The rule 10-B is as follows:-- "10-B. Appointment on current charge basis.--(1) Where a post is likely to remain vacant for a period of less than six months and the appointing authority does not consider it expedient to make an appointment on ad hoc basis it may appoint a civil servant, who is eligible for promotion under Rules, to that post on current charge basis.
(2) An appointment made on current charge basis shall come to an end on appointment of a person on regular basis or on the expiry of six months whichever is earlier."
9. It will be seen that the word promotion does not occur in the rule reproduced above. From it the conclusion is obvious that an order under rule 10-B is not an order of promotion. From the fact that pay scale is not mentioned in rule B-10 it is clear that appointment on current charge basis is to a higher post and not to a higher grade. Sub-rule (2) makes it clear that appointment made under this rule is a temporary arrangement which terminated on appointment of a person on regular basis or on the expiry of six months whichever is earlier. The phraseology of sub-rule (2) also shows that appointment on regular basis is a stage which is reached after appointment on current charge basis and the two are not the same. The matter becomes further clear when we peruse rule 13 which falls in the same chapter. It is as follows:-- "13.. Appointment by promotion on officiating basis.--(1)Where a post falls vacant as a result of deputation, leave or appointment on acting charge basis of the regular incumbent or is reserved under the Rules to be filled by transfer, the appointing authority may make appointment by promotion against such post on officiating basis.
(2) If an officer appointed or promoted to a post on ad hoc basis continues to hold office beyond six months without approval of the Public Service Commission/Selection Board he shall be deemed to continue on ad hoc basis, till the approval of Public Service Commission/Selection Board and formal confirmation orders issued by the competent Authority.
(3) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(4) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion."
It follows that an appointment on officiating basis is a promotion, but the word promotion is conspicuous by absence from rule 10-B. The obvious conclusion is that appointment on current charge basis is not promotion.
10. The result of the above discussion is that Dr. Mushtaq Ahmad Gardazi was not in B-20 when he filed writ petition in the High Court and therefore, he could not be legally appointed as Executive Director, AIMS. In , our opinion the Chief Secretary was well-advised, as stated, in not sending the recommendations of the Selection Board for approval of Prime Minister. Once he realised that the proposed order would not be legal. Mr. M. Tabassum Aftab Alvi rightly relied on the cases reported as Major Muhammad Aftab Ahmad (Retired) v. Azad Jammu and Kashmir Government (1992 SCR 307), Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S.) 1439) in which it was held that a writ cannot issue for giving effect to an unlawful order and also on Raja Muhammad Ayyaz Khan v. Azad Government and another (1995 SCR 281) wherein it was laid down that an order which has not been issued does not create any right.
11. We note that the submissions made before us were also made before the High Court but the High Court did not bring them under consideration with the result that unsustainable conclusions were drawn.
Resultantly the Appeal No,17 of 2000 titled Azad Government and others v. Dr. Syed Mushtaq Ahmad Gardazi is accepted and order passed by the High Court is vacated with the result that the writ petition filed by Dr. Mushtaq Ahmad Gardazi in the High Court shall stand dismissed.