1993 PLP (C (PLC(CS))

M. ILYAS LODHI (MEMBER): ‑‑Briefly, the facts of the case are that the appellant, S. Munawar Ahmad was appointed Inspector in the Central Board of Film Censors (CBFC) in May, 1966. Subsequently, he was promoted as Secretary (B‑17) on 1‑6‑1974 and later on as Vice‑Chairman (B‑18) on 4‑8‑1976. He was also allowed move‑over to B‑19 on 1‑12‑1985. The appellant held the current charge of the post of Chairman, CBFC on many occasions. Vide Notification dated 13‑5‑1989, new recruitment rules were framed under which it was declared that the post of Chairman, CBFC would be filled in 50% by promotion and 50% by direct recruitment. As the appellant was senior most in the CBFC and on many occasions he performed his duties as Chairman on acting/current charge basis, he filed an application to the Secretary, Ministry of Culture, Sports and Youth Affairs Division, Islamabad on 4‑12‑1991 requesting that "he may be considered for promotion to the post of Chairman during the period, the incumbent is on training in the Administrative Staff College, Lahore in view of the fact that he was at the fag -end of his career and due for retirement in December, 1991". His request was not acceded to and accordingly he was informed on 2‑7‑1992 regretting to process his case for promotion as he had already retired from service on 8‑12‑1991. He then filed the present appeal on 29‑7‑1992.

2. The learned counsel for the appellant argued that in view of the long experience of the appellant in the field of films, he should have been considered for promotion to the post of Chairman. In this context he referred to the instructions of the Establishment Division dated 22‑6‑1952, "that it was incumbent that the post of the Chairman, (CBFC) should have been filled in first by promotion" which were ignored to detriment of the appellant's interest. He further argued that before the retirement of the appellant he was holding current charge of the post of Chairman, CBFC. At that time it was possible to conisider his name for the promotion of Chairman of CBFC and there could be no difficulty in converting his current charge promotion into regular promotion. He prayed that the appeal be accepted and the respondents be directed to consider his name for the post of Chairman for regular promotion.

3. On the other hand the departmental representative submitted that the appellant has no cause of action and as such the appeal as framed is not maintainable in law and is also hit by section 4(1)(a) of the Service Tribunals Act, 1973. He also submitted that the prayer is not clear as he has failed to point out the exact date from which he could be considered for promotion from any date before his retirement which is not maintainable. He further submitted that the appellant did not implead any private respondent against whom he claimed consideration of promotion as Chairman, CBFC. The appeal is, therefore, bad for misjoinder of necessary parties. He also submitted that under section 10 of the Civil Servants Act, 1973, the competent authority may appoint any civil servant by transfer to any post. He submitted that the case of promotion could not be processed as the existing recruitment rules were not formulated at that time in 1983 which were later formulated and notified on 12‑5‑1989 which provides that the post of Chairman, CBFC should be filled in 50% by initial and 50% by promotion but the case of the appellant could not be processed as the post of the Chairman was filled in by posting of Mr. Sajjad Haider vide Establishment Division Notification dated 20‑12‑1988. He also submitted that at the time of retirement of the appellant the post of the Chairman was not vacant. 'The appellant was holding the post of Chairman, CBFC on current charge basis. On his request his case was sent to the Establishment Division which was turned down with the remarks that since the appellant has retired his case for promotion cannot be processed. In view of the above, the departmental representative requested that the appeal be dismissed.

4. We have heard the parties and examined the record. The recruitment rules of the Central Film Board of Censor were concurred by the FPSC on 28‑1‑1988, by the Establishment on 30‑3‑1988 and notified on 13‑5‑1988. According to the rules 50% of the posts are to be filled in by promotion and 50% by direct recruitment and there is no provision of appointment by transfer. Had these rules been notified in time before 13‑5‑1988, then the post would have been filled in by promotion rather than by transfer. But despite Controlling Ministry's recommendations his case was not put up for consideration of promotion before the Central Selection Board, thus the appellant was deprived from the right of consideration on the plea that the relevant rules were not notified when the post was vacant. The Hon'ble Supreme Court in the case of Muhammad Yousaf Chouhan (PLD 1991 SC 514),' has held "that rules when approved by the competent authority become immediate effective and not from the date of notification". Accordingly, his case could have been considered immediately after 28‑1‑1988 when the Establishment Division approved the Rules. The consideration by the Central Selection Board is the right of every civil servant. Had he been considered and not approved by the Central Selection Board then the Government could have the right to post anybody through direct recruitment or transfer, but without considering the appellant to fill up the post by transfer is not only violative of the Rules but is also against the principle of natural justice.

5. Since 1975 on different occasions the appellant had been given current charge of the post of Chairman, the last current charge of the post of Chairman was given to him with effect from 24‑8‑1991 to 8‑12‑1991 when the present incumbent of the post Mr. Sajjad Haider attended the training in the Staff College, Lahore. The appellant worked to the satisfaction of his superiors as envisaged from the recommendations of the controlling Ministry.

6. The respondent‑department and Establishment Division could not give any solid argument that why his case was not submitted for consideration except that the post of Chairman was not vacant after the finalization of the aforesaid recruitment rules.

7. The respondent‑department has also conceded in their objections under para. 8 reproduced below:‑ ' "that his case was sent to the Establishment Division with the recommendations but the Establishment Division had turned down his request with the remarks that he had since been retired and his case for promotion could not be processed."

8. Mr. Pirzada, the then Vice‑Chairman, was promoted as Chairman in the basis of draft Recruitment Rules, 1974, that 50% posts are to be tilled in by promotion. But the appellant who otherwise fulfils all the requirements was not considered under the same provision of law. The Rules were also finally approved and instead of promoting him an officer of Secretariat Group was appointed by transfer.

9. In view of the above, we are of the view that a great injustice had been done to the appellant who with unblemished record had served Government meritoriously. Had his case been considered by the Selection Board and submitted to the competent authority, he would have been promoted as he fulfilled all the requisite requirements of promotion.

10. The stand of the Government is that it is not binding on the appointing authority to appoint a person to a particular post even if he fulfils all the qualifications. This view stands modified in the case of Aslam Varraich (1991 SCMR 2330), wherein it was held that though acting charge appointment does not give a person right to be appointed on gaining the qualifications, the intention of the law is not to deprive a person serving on current charge basis to be considered for promotion on regular basis from the date of current charge appointment. The departmental representative has not stated that the appellant was not fit for promotion or appointment to the post of Chairman. Circumstances of the case also show that he not only deserved promotion as Chairman but was also the most suitable person for the position. His fitness for appointment, therefore, is not a question in controversy. He had been retired before giving him promotion on regular basis which he deserved not only on merits but also in accordance with the Rules.

11. As regards, the order to be passed, we are enlightened by the judgment of the Supreme Court in the case of Federation of Pakistan v. Rais Khan (1993 SCMR 609). In this case the Hon'ble Supreme Court referred to the power of the Service Tribunal and observed that "another question requiring determination would be whether the Service Tribunal can grant relief to a Government servant under section 23 of the Civil Servants Act, 1973, if such relief is not granted to him by the President. We leave these questions for our final decision in some other appropriate case or cases which come up before us. We may refer to Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22), where this Court referred to the wide and some exclusive powers of the Service Tribunal "These observations of the Court though not conclusive nevertheless give indication that the Service Tribunal possibly exercise the same powers which the President can under section 23 ibid. In our view the Tribunal has all the powers which a departmental authority can exercise. The President being a departmental authority the Service Tribunal E can exercise his powers relating to terms and conditions of civil servants including powers under section 23 of the Civil Servant Act, 1973. In view of this legal position we can pass a just and equitable order in respect of the appellant.' Consequently, in view of this legal position we, in exercise of the said power direct that the appellant shall be deemed to have been promoted on regular basis to the post of Chairman, Central Board of Film Censor with all consequential benefits of salary, emoluments and refixation of pension.

12. The objection with regard to non‑joinder of parties is not relevant in view of the fact that the question of seniority does not arise in this case.

13. No order as to costs. 14, Parties be informed.

15. RANA RIFAT SAEED (MEMBER).‑‑‑From arguments and perusal of the record it had transpired that although the appellant Munawar Ahmad who fulfilled all conditions for promotion as department candidate under relevant rules but he had been ignored for such consideration/appointment/promotion, whenever vacancy of Chairman, CBFC fell vacant. The respondent Department had always preferred an outsider for such appointment by ignoring the appellant. This was a clear violation of rules and mala fide done to the appellant who without such consideration by the DPC/Board had been ignored and preferential treatment had been given to the officers of the other Cadres/Groups. This was also borne out from the record that he had held the post of Chairman on acting/current charge basis and this established that he was eligible enough and otherwise fit for promotion, but for departmental discrimination and mala fide the appellant could not be given a chance and considered for promotion. He ultimately retired under such circumstances and duress which in fact had restricted justice and fairplay to him. Relevant rules provided for appointment as Chairman by promotion and by direct recruitment and not by transfer from other Cadres/Groups and the rules did not provide deprivation to him, but it was departmental activity and mala fide to hold him back from consideration of promotion and appointment as Chairman, CBFC (B‑20). He was eligible for promotion with effect from the date he had held acting/current charge of the post of Chairman. Accordingly he shall be considered by the respondent Department for promotion/appointment as Chairman, CBFC w.e.f. the last date of holding such acting/current charge and shall be considered appointed as such with effect from the said date, if there was nothing wrong and adverse in his service record up to the relevant period to otherwise hold him back under the rules and with all consequential benefits etc. Therefore, I agree with the judgment of my learned brother. H.B.T./847/Sr.F Appeal allowed.