2004 PLP (C (PLC(CS))

5. The perusal of the record reveals that the present appeal has been heard, while disposed off through order made on 22-9-1996 on merits. But the Honourable Supreme Court of Pakistan through order made on 22-10-2002, set aside the order of the Tribunal while remanded the case for giving fresh decision on merits after giving opportunity td the parties of being heard. Therefore on remand the appeal was red for rehearing and after hearing the parties, now the case is reserved for judgment.

6. It is case of the appellant that as per rules quota has been fixed for appointment and promotion of Excise and Taxation Inspectors, which has to be observed. But the Authorities have violated the same and appointed respondents Nos.4 to 16 as direct recruits on posts included in 1 promotion quota. They (the appellants) being eligible persons for promotion but 100% Excise Inspectors were directly appointed. In reply the official as well as private respondents admitted that the said respondents were appointed by initial recruitment, while only one person namely Najibullah has been promoted. The reason for the same given by the official respondent is that the said direct recruitment was made keeping in view the non-employment at large scale, the deserving candidates were appointed on recommendation of Departmental Selection Committee. While as per private contesting respondents as the posts were vacant due to imposition of ban on appointments therefore, keeping in view the exigency and demand of APCA it was decided that posts are to be filled through promotion as well as through initial recruitment. Thus only one Sub-Inspector was found eligible who was promoted, while in respect of remaining 12 vacant posts the rules were relaxed, publication was made, interviews were held whereupon 12 candidates including replying respondents were appointed in accordance with law.

7. Before going into merits of the case the objection raised by the respondents in respect of limitation is required to be resolved. According to them the present appeal is filed beyond period of limitation. The appellants have challenged the order dated 5-5-1993, being aggrieved of the same they preferred departmental appeal oil 6-6-1993. Whereafter they filed present appeal on 1-1-1994. They have also challenged another order dated 14-4-1996, whereby respondent No. 16 has been appointed, the said order was issued during pendency of this appeal, whereby the appellants have amended their appeal to said extent. As per relevant law and rules the appellants have to prefer present appeal after lapse of 90 days from filing of departmental appeal within a period of 30 days from the same. But in present case the departmental appeal has been filed on 6-6-1993, which was surely filed in provided time, while present appeal has been filed on 1-1-1994 after lapse of more than six months, whereas the appellants have 120 days for filing of present appeal but he has filed it with a delay of nearly three months. The appellants have filed an application praying for condonation of delay in filing of present appeal. According to them they have been waiting for decision on their departmental appeal, which has not yet been decided. Though an aggrieved civil servant has to wait for a period of 90 days after filing of departmental appeal thereafter he has to file service appeal within a period of 30 days before this Tribunal. But in case the departmental Authority gives decision after said period at any time, then in such a case the aggrieved civil servant has a right to prefer service appeal within 30 days from communication of said order to him. But in present case there is no final appellate order, as the appeal is not disposed off by departmental Authority uptill now which shows their negligence. There is a delay of more than two months in filing of present appeal, but as the appellants have challenged the impugned order allegedly being made in violation of established rules, which requires consideration. Further, the appellants are pursuing the matter since long, it will not be just and proper to dismiss the appeal on ground of limitation at this stage. Thus as a serious point of violation of specified quota is involved in the present case, it will be just and proper to decide the same on merits rather than dismissing the appeal on a technical ground. In the circumstances in interest of justice the delay is condoned.

8. As mentioned above that there is an allegation from the side of the appellants that the Authorities have appointed respondents Nos.4 to 16 in violation of rules and also in excess of quota meant for initial recruitment. The official as well as private respondents have somehow or the other admitted that the said respondents i.e. Nos.4 to 16 have been appointed through direct recruitment, on posts which come within the purview of quota meant for promotion. According to private respondents, who are the direct recruits, that, as at relevant time the men in service, including the appellants, were not eligible for promotion, therefore, rules were relaxed, and they were appointed by the competent Authority while relaxing the rules, in accordance with law. But contrary to the same the official respondents do not assert about non-eligibility of members of service, rather according to them appointments were made keeping in view non-employment on large scales and deserving candidates were appointed on recommendation of the Departmental Selection Committee and as per direction of the concerned Minister. They are silent about the fact that whether the cases of the appellants were considered by the departmental Authorities and were not found eligible for promotion whereby respective quota for promotion has been transferred to the quota of initial recruitment by relaxing the relevant Rules. From their (the respondents) replies it is apparent that they have admitted the contention of the appellants that the respective quota meant for promotion has been utilized by appointing the candidates through direct recruitment, which is not proper.

9. As per relevant rules i.e. Balochistan Excise and Taxation Department (Grade 1 to 15) Service Rules, 1982, it is provided in appendix as amended that Excise and Taxation Inspector B-11 has to be appointed in proportion of: (a) 25 % by initial recruitment. (b) 65 % by promotion on the basis of seniority cum-fitness from amongst member of service holding the posts of Sub-Inspectors having five years experience as such. (c) 10% by selection on merits from amongst members of the service holding post of the Sub-Inspector, who have an outstanding record are being 32 years of age and possess sound health. Provided that where a person with such qualification is not available for appointment to any such vacancy the vacancy shall be filled in the manner provided in clause (b). As per the same, clauses (b) and (c) are in respect of promotion which is now 75 % while only 25 % is fixed for initial recruitment. Specific rules are in the field, while specific promotion is fixed for making appointment for the post, thus these are to be observed and violation of the same is not good in eye of law.

10. Now it is the Departmental/Authority who has to show and establish that there is no violation in quota as specified in the rules and appointments have been made properly. But contrary to the same the Authorities/official respondents in reply, which is an evasive one impliedly admitted such violation. Non-employment at large is no ground for depriving the members of the service from their right of promotion. During course of arguments the respondent's counsel raised the plea that the appellants cannot claim promotion as a matter of right while this Tribunal is in lack of jurisdiction in respect of the same. Though it is I correct, that there is a bar on jurisdiction of this Tribunal on entertaining any appeal filed against an order of departmental Authority determining the fitness or otherwise of a person to be appointed to or hold particular post or to be promoted to a higher post or grade. Despite the same this Tribunal is very much empowered to look into the matter in case of any such order where there is violation of rules which effects terms and condition of service of a civil servant and mala fide on the part of the Authority. Further, though the appellants cannot claim their promotion on higher posts as a matter of right but in case when there is a fixed quota for promotion then it is the right of members of service to be considered for the same firstly, while quota of promotion is to be utilized first thereafter vacancies are to be filled through, direct recruitment. The Authorities are bound to consider their eligibility and thereafter their, cases be rejected. But in present case the official respondents are completely silent about the fact that whether the cases of the appellants were ever considered whereby they were not found fit for promotion. No document in same respect has been placed on record. Furthermore, no explanation has come on record from the side of official respondents/ department that due to what reason they have exceeded the fixed quota, and utilized the same for direct recruitment. Nor any paper in same respect has been placed on record from which true facts can be ascertained, this shows gross negligence on the part of the official respondents/Department, which is not proper. They must be vigilant enough while conducting or defending their cases in Court of law. Moreover, the private respondents, who are contesting the appeal, have asserted that the rules have been relaxed in their favour. Though as per relevant rules the Government has the authority to relax the rules that too in a sensible manner and not at the cost of others. But there is nothing on record, which can show that the rules have been relaxed while making appointment of the said respondents by the competent Authority. Moreover, the official respondents are completely silent in this respect. While the appellants, during pendency of appeal have filed a copy of letter addressed to Secretary, Excise and Taxation Department bearing date 20-9-1994 issued by Director, Excise and Taxation Department on 25-8-1996 The perusal of the same reveals that it has been admitted therein that 18 posts have been filled in excess of quota by initial recruitment. The respondents have neither denied nor contested the same.

11. In view of above discussion it has been established that there is clear violation of rules and quota meant for promotion is misutilized, which is bad in eye of law. Due to non-observance of rules and procedure, as provided, by the departmental Authorities the members of service and other related persons have to suffer a lot, which is unfortunate.

12. As far as, appointment of respondent No. 16 Muhammad Saleem is concerned, the same was made through direct recruitment during pendency of present appeal on 14-4-1996. Though the appellants were allowed to implead hint in present appeal as respondent, but from record it is apparent that though the appellants are aggrieved of his (respondent No. 16) appointment but they have not filed any appeal nor representation before the departmental Authority. They directly approached this Tribunal without exhausting the departmental remedy available to them. Therefore, in view of the same to the extent of respondent No.16, appeal is premature and is thus not maintainable.

13. Furthermore, during course of arguments it has been asserted by the learned counsel for the private respondents that as appellants Nos. 1,2 and 3 have since been promoted in years 1994, 1996 and 1997 with retrospective effect, stand senior to the respondents therefore, the present appeal has become infructuous. The appellant's counsel has denied the same. Tentative seniority lists of Sub-Inspectors and Inspectors as stood on 30-9-2000 and 31-12-2000 respectively has been placed on record by the contesting private respondents. The perusal of the same reveals that appellant No. 1 (Akbar Shah) has been promoted to the rank of Inspector on 4-8-1997, while appellant No.2 (Bashir Ahmed Awan) promoted on 14-11-1998 and appellant No.3 (Muhammad Fazal) on 17-5-1999. While respondents Nos.4 to 5 were directly appointed on 5-5-1993. No such order has been placed on record whereby the promotion of the appellants had been made through retrospective effect and they stand senior to that of respondents Nos.4 to

16. Rather as per said seniority list they stand junior to that of said respondents. Furthermore, uptill now appellants Nos.4 and 5 have not been promoted. Therefore, in view of the same the grievance of the appellants still subsists, as such, the appeal is very much maintainable in the circumstances.

14. Thus in view of above discussion it is established that there is violation of rules, while the appointments of respondents Nos.4 to 15 are made through direct recruitment in excess of quota fixed for the same. While the quota meant for promotion has been wrongfully utilized by the Authorities, while making appointments through direct recruitment. The members of service, including the appellants were not even considered for promotion at relevant time which is seriously unjust. The conduct or concerned Authorities is highly objectionable in the matter, this not only creates hardship mentally and financially to concerned members or service but also creates dis heartedness in them, which is unfortunate. In present case too the parties are litigating the matter since 1994, which is unfortunate.

15. Thus keeping in view the circumstances as mentioned above as the case is pending since long, while the rules have been violated by the Authorities, as such the respondents i.e. Nos.4 to 15 may not have to suffer alone due to at of the Authorities as they are in service since 1993. Therefore, it will be just and proper to order and declare that the appointments of respondents Nos.4 to 15 have been made in excess of quota, while the appellants have been deprived of their right. Therefore, the Authorities are directed to re-consider the case, while the said 12 posts in question be filled, thereby strictly working out the quota meant for promotion and initial recruitment. The quota fixed for promotion be exhausted first thereafter the quota for initial appointment be utilized. Moreover, the cases of all eligible Sub-Inspectors including the appellants be placed before the Departmental Selection Board, who shall consider the same for promotion from the date when posts actually occurs on basis of departmental promotion quota. As far as appellants Nos.1,2, and 3 are concerned who have been already promoted despite the same their cases be considered afresh by the Authorities and their promotion be made from the date when the posts actually occurred on basis of promotion quota. As far as respondents Nos.4 to 15 are concerned, though they have been appointed in violation of rules, but as the violation has been committed by the Authorities, while the said respondents are in service since 1993; therefore, in interest of justice they are not ousted from the service, rather the Authorities/ Department are directed to adjust respondents Nos.4 to 15 on such posts, from the date when the posts actually arise in quota of direct recruitment. The Authorities/Department is directed to issue final seniority lists of Inspectors and Sub-Inspectors in accordance with law without any loss of time. As far as appeal to the extent of respondent No. 16 is concerned, as the appellants have approached the Tribunal without exhausting departmental remedy, therefore, to said extent the present appeal is not maintainable. The Authorities/Department are directed to do the needful in the matter, which is to be finalized within a period of two months, under intimation to this Tribunal.

16. No orders as to costs. File after completion be consigned to record. H.B.T./18/QST/ Order accordingly.