P L D 1984 Supreme Court 430 (PLP)

NASIM HASAN SHAH, J.-This appeal, with the leave of this Court, is directed against the order, dated 19-8-1982 passed by the Federal Service Tribunal, Islamabad. The appellant is a member of the clerical staff in the office of the Accountant-General, N.-W. F. P., Peshawar. By an order dated 7-4-1971, he, alongwith three others was appointed as an Assistant Superintendent with effect from 3-4-1971. The post of the Assistant Superintendent is of a permanent nature sanctioned without limit of time and its duties and responsibilities are of a independent character. The appointment of the appellant was made on the recommendation of the Departmental Promotion Committee on the basis of the seniority-cum-fitness. He performed his duties satisfactorily for a period extending over five years and was then appointed to the higher post of Clerk-Incharge on 6-4-1977. However, the appellant has not yet been confirmed as an Superintendent, although there are 23 sanctioned posts of the Assistant Superintendents, out of which 15 posts are permanent. The appellant, therefore, claimed to be confirmed against one of these posts from the date of his appointment asserting that he was eligible for confirmation having been appointed to it on a regular basis and having rendered satisfactory service while functioning therein. But was not obliged. He, therefore, submitted an application addressed to the Auditor-General of Pakistan on 6-2-1982 on the subject of confirmation against the post of Assistant Superintendent, but his application was not forwarded to him by the office of the Accountant-General, N.-W. F. P., Peshawar, which felt that it could not do so "presence of the outstanding order that the confirmation against the post of the Assistant Superintendent should not be made". It appears that a general order had been passed by the Auditor-General of Pakistan and circulated to all concerned by his Office Memo .No. 1428-NGE. 1/26-72-KW, dated 10-2-1975 to the effect that no official was to be confirmed against- the post of Assistant Superintendent. The appellant, feeling aggrieved by the action of Accountant-General, N.W.F.P., filed an appeal against it before the Federal Service Tribunal questioning the decision refusing to confirm him to the post of the Assistant Superintendent. The appeal, however, was dismissed by the learned Tribunal on the grounds that no one junior to the appellant, nor even any other senior incumbent of the post of Assistant Superintendent had so far been confirmed ; furthermore that "confirmation is not a legal right to be enforced unless in the process of confirmation a person is ignored and another with lower seniority is confirmed. Confirmation is made in the discretion of the department and no civil servant can get confirmation by resorting to appeal before the Tribunal". Hence this appeal, before this Court. We have heard the appellant, who has appeared in person, in support of the appeal and Mr. Raza A. Khan, learned Deputy Attorney-General, on behalf of the respondents. There is no cavil with the proposition that confirmation is not a legal right which can be enforced by the agency of the Tribunal or, indeed, any other legal agency. The question which fell for determination before the Tribunal was, however, different. The grievance of the appellant was that on account of the memorandum issued by the Auditor-General not to confirm any official against the post of the Assistant Superintendent no person even though otherwise fully eligible for being confirmed could at all be considered for it and that no such ad hoc decision could be taken, as it violated the legal rights of the appellant as guaranteed by law. In this connection, we observe that it is laid down in section 7 (2) of the Civil Servants Act, 1973 that : "A Civil servant promoted to a post on regular basis shall be eligible for confirmation after rendering satisfactory service for the period prescribed for confirmation therein." It is an admitted position that the appellant was promoted on a regular basis to the post of the Assistant Superintendent wherein he rendered satisfactory service for the period prescribed for confirmation therein, but he is not considered for confirmation therein only on account of the aforesaid memorandum issued by the Auditor-General. According to the said memorandum, every official, even though eligible in all respects for being confirmed against the post of the Assistant Superintendent, cannot even be considered for it. Thus, the said memorandum has the effect of rendering nugatory and ineffective the guarantee given in section 7 (2) of the Civil Servants Act, 1973 that "a civil servant promoted to a post or grade on regular basis shall be eligible for confirmation after rendering satisfactory service for the period prescribed for confirmation therein". Accordingly, the said memorandum being violative of the statutory guarantee conferred by section 7 (2) of the Act cannot be considered to be legal and valid and must yield to the mandate of the law. We, therefore, hold that the memorandum of the Auditor-General No. 1428-NGE. 1/26-72-KW, dated 10-2-1975 or any other instruction or order issued by him directing that no official shall be confirmed against the post of Assistant Superintendent even though otherwise eligible for this purpose is without lawful authority and of no legal effect and cannot stand in the way of a civil servant, such as the appellant, who has been promoted to the post of the Assistant Superintendent on a regular basis and has rendered satisfactory service for the period prescribed for confirmation from being considered for confirmation to the said post. The appeal, therefore, succeeds and is allowed in the above terms, leaving the parties to bear their own costs. M. z. M.? Appeal allowed.