1995 PLP (C (PLC(CS))

(2)Upgradation of a post shall imply the abolition of the existing post and creation of any new post in the higher grade. (3) Upgradation of a post shall not mean automatic upgradation of its incumbent. . (4) Appointment to the upgraded post shall have to be made in the manner prescribed for that post. (5) If a post is upgraded with immediate effect the incumbent shall be left without any post in his grade until he is approved for appointment to higher grade. Therefore, while sanctioning upgradation of the existing posts, it shall be clearly provided in the sanction letter that upgradation of the post would take effect from the date the post is filled by a person in the higher grade. Until existing incumbent is formally appointed to higher grade the post and the incumbent would continue in lower grade. (Sd.) (Chaudhry Muhammad Latif) Joint Secretary Services. No. S&GAD/JS 1‑A/1138/84, dated the 15 December, 1994. As the facts are, the Government abolished the post of Planning Officer held by respondent No.4 on 18th of November, 1992. The order did not specify any date from which it was to take effect which means that the order took immediate effect. According to rule 2 post of Planning Officer stood abolished and a new post of Deputy Director was created. This is a situation, which according to rule 5 should have been avoided. Rule 5 provides that while upgrading a post it must be provided that the upgradation would take effect from the date on which a person is appointed but the Government did not follow this requirement and abolished the post with immediate effect and created a situation which should have been avoided. Thus the Tribunal was not right in observing that the appointment of respondent No. 4 was in keeping with spirit of rule

5. Spirit of rule 5 is not that a person who holds a post in lower grade should be appointed to the higher grade in his own pay and scale because on account of the reason that the post which he was holding had been abolished. According to the scheme of the service laws the abolition of post does not create any right in favour of the incumbent to be appointed or promoted, temporarily or otherwise, to the higher post. As is laid down in rule 5, in such a situation the affected person is left without a post. In our view Upgradation Rules cannot create any justification for the impugned order. The Tribunal expressed the view that the appellant could only question the appointment of respondent No. 4 when he is formally appointed, but the Tribunal did not justify its conclusion by reference to any rule or principle of law that in the circumstances in which a civil servant is appointed to a higher post in his own pay scale no other civil servant can be aggrieved. In order to fulfil the requirement of an aggrieved person a petitioner does not have to show that a right in the strict juristic sense vests in him but it is enough that the applicant discloses that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of the privilege or liberty or franchise. Facts of the present case show that the appellant felt aggrieved by the order by which respondent No.4 was appointed as Deputy Director in his own pay and scale. It is admitted position between the parties that rules for appointment to the post of Deputy Director (Planning, Development and Evaluation) had not yet been framed when the impugned order was issued. The Service Tribunal has held that seniority of the appellant and respondent No.4 is not common. The appellant being a Doctor falls in Technical Branch while respondent No.4 holds a non- technical post and belongs to the Administrative Branch. However the Service Tribunal failed to take note of the fact that the post of Deputy Director has not so far been prescribed to be a part of the Administrative Branch. Since the rules have not been framed the method of recruitment,, the branch to which it would belong and qualifications necessary for occupying the post have not yet been laid down. In absence of the rules there is no question that existing Administrative Branch may be given preference over the Technical Branch. Admittedly the appellant, apart from holding a degree of D.V.M., has to his credit Master's Degree in Economics and he has also served for more than three years in the Planning & Development Department of the Government. So far as his length of service is concerned he is far senior to respondent No.4 although they belong to different branches. Malik Maqsood Ahmed is MA. Economics in 3rd Division but has been approved by the Public Service Commission. This is not for this Court to assess the respective merits of the two civil servants but in absence of the rules relating to the post of Deputy Director, there was nothing which debarred the appellant to be considered for appointment to the post of Deputy Director. However, the name of the appellant was not considered at all. In the written statement filed by the Government it has been asserted that respondent No.4 was most suitable and deserving person to the post of Deputy Director. The Government has also taken the position that the appellant and respondent belong to different branches and thus there was no question that the appellant may be senior to respondent No.4. It appears that the Government acted on the belief that the post of Deputy Director belonged to Technical Branch which is not correct. While it is open for the Government to declare that the post of Deputy Director belongs to the Technical Branch but at present there is no such statutory rule. If the Government had not acted under the belief that only the persons belonging to the Technical Branch were eligible for appointment as Deputy Director the appellant might have been found more suitable than respondent No.4. In our view the appellant is aggrieved by the impugned order because he has not been considered for the appointment under reference E under a mistaken view that a person .from Technical Branch could not be appointed as Deputy Director. However, before us it has been vehemently contended by Mr. Sardar Khan, the learned Advocate‑General, that it is provided in section 4 of the Service Tribunals Act that an appeal would lie to the Service Tribunal only against a final order. According to the learned Advocate‑General the impugned order was not an order of promotion and it was only an ad hoc arrangement. We have looked into the impugned order. It nowhere says that the order is of temporary nature or that it provides for a stopgap arrangement. All it lays down is that Malik Maqsood Ahmed is appointed in his own pay and scale against the post of Deputy Director of Planning and Evaluation (B‑18). However, it was argued that since respondent No.4 was to remain in his own. pay and scale it was a stopgap arrangement, but in the written statements not only respondent No.4 but the Government also adopted the position that the two contesting civil servants belonged to different branches and that the appellant had no right against the post of Deputy Director. It has also been averred that respondent No.4 was the most suitable and deserving person for he post of Deputy Director. In light of the pleadings it is clear that the order may not be a final order in the sense that respondent No.4 was not formally given the grade prescribed for that post, but so far as the appellant is C concerned the impugned order has sealed his fate for promotion to the post of Deputy Director. The view of the Government is that the appellant cannot be considered for appointment to the post in question. Two years have passed since the order under challenge was passed but no person has been "formally appointed" as Deputy Director. Even if we assume that the Government would at one stage do so, it is clear that the appellant would not be appointed because it has already been decided by the Government that he has no claim for the post. In Mubashar‑ul‑Haq v. Azad Government 1991 PLC (C.S.) 426 this Court made the following observations which are relevant in the present case:‑ It may be observed that the question whether the order appealed from was a final order or not has to be resolved in light of the contention of the present appellant is the post of the Engineering is that the reserved quota had been not be appointed as Executive Engineers. If any of these two contentions as that he is the senior most graduate engineer can be to have could be the respondents were appointed as Executive Engineers finally decided the rights of the‑appellant qua the respondents." The Service Tribunal has also observed that the appellant is entered at serial NoA6 in the list of Veterinary Doctors and even if the post is required to be filled up by any officer of the technical branch the senior most officer will be considered for appointment if rules permitted. The Tribunal, therefore, reached the conclusion that for this reason also the appellant had no locus standi to file the appeal. In the absence of the rules relating to the appointment to‑the post of Deputy Director it cannot be said that the seniority will be the sole criteria. The case of the appellant is peculiar in nature because he also holds a degree of M.A. Economics which is equal to the degree held by respondent No.4 and he has also served in the Planning and Development Department of the Government for more than three years. Thus it cannot be said that he had not locus standi. In the foregoing analysis the question of validity of the impugned order also stands virtually resolved. It is reiterated that the rules for appointment of respondent No.4 to the post of Deputy Director were not framed before passing the impugned order and it was mistakenly assumed that only persons belonging to the administrative cadre could be appointed to the post under discussion. The experience, seniority and qualifications p? the appellant qualify him for consideration for appointment to the said post. True that respondent lqo.4 has not been promoted and is in his own pay and scale but the fact remains that he is enjoying higher status and enhanced powers and, but for the pay, he is practically promoted for the last two years or so. On the other hand the appellant continues to serve in a lower post. The impugned order is therefore not sustainable. We may also observe that in the service laws in force in Azad Jammu and Kashmir there is no concept of appointing, permanently or temporarily, a civil servant to a post carrying higher grade in his own pay and scale. According to section 8 of the Azad Jammu and Kashmir Civil Servants Act, 1976 "promotion" to a post carrying higher grade with the accepted connotation of "posting" and "transfer" is moving to a post in the same grade to which a civil servant belongs. Under section 16 of the Civil Servants Act a civil servant appointed to a post or grade shall be entitled in accordance with the rules to the pay sanctioned for such post or grade. It is yet to be seen whether a civil servant can be denied the pay sanctioned for such post if he works against it. The AJ&K Civil Servants (Appointment and Conditions of Service) Rules provide only three modes by which a person can be appointed to a post: (a) by, promotion, (b) by transfer and (c) by initial recruitment. The impugned order' does not conform to any of these modes. In the said rules there is also a provision for appointment: (a) on acting charge basis (rule 10‑A); (b) on current charge basis (rule 10‑B) and (c) on officiating basis (rule 13). The impugned order is not covered by these provisions. If a civil servant is appointed to a post carrying higher grade he is elevated in position and exercises higher powers and many persons carrying the same pay and scale serve under him and in some cases senior persons also can be posted to Mubashar‑ul‑Haq's case, referred to above, and also Chairman AKLASC. (Civil Appeal No.78 of PLC (C.S.) 1201):‑ "According to rule 27 of the AKLASC Employees Service Rules in case all matters not expressly. provided in those rules members of the service shall be governed by appropriate rules/orders of the Government. Therefore, the Civil Servants Act and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 are applicable to the Corporation. The concept of promotion as envisaged in section 8 of the Civil Servants Act is that promotion is to a post carrying higher grade while the accepted connotation of "transfer" is the shifting of an official to an equal post. There is no concept in the service laws of transferring a civil servant to a post carrying higher grade and that also for an indefinite period. According to the scheme of the service law if a vacancy is to be filled by promotion it is to be filled through the relevant Promotion Board. However, if a vacancy cannot be filled immediately civil servants can be appointed to higher posts pending completion of the formalities in accordance with the rules of 1977 mentioned above. These rules provide for appointment on acting charge basis (rule 10‑A), appointment on current charge basis (rule 10‑B) and appointment by, promotion on officiating basis (rule 13). In rule 10‑B there is also a reference to appointment on ad hoc basis. If the rules already in force are found wanting in any situation the proper course is that the Government should amend the Rules. The prevalent practice of ordering civil servants to posts carrying higher grades should be brought to an end because sometime the senior persons are left to work in the same position while their juniors enjoy higher status and enhanced powers without adjudication for their suitability for promotion by the Promotion Board." The appellant is senior to respondent No.4 but he is working as Poultry Development Officer in B‑17 while respondent No.4 is thus enjoying higher status as compared to the appellant. In a similar situation this Court reached the conclusion in Muhammad Rashid's case referred to above that a civil servant becomes aggrieved. We may usefully reproduce the following passage:‑ "The appellant who is senior to the private respondents is working as Deputy Manager while the aforementioned respondents are enjoying the status and powers of Managers and this arrangement has been going on for more than two years in spite of the fact that it was claimed in the written statement filed in the High Court that it was a stopgap arrangement. The present arrangement is decidedly adverse to the service rights of the appellant which makes him an aggrieved person within the meaning of section 44 of the Interim Constitution Act." While formulating the view we followed Maqsood Hussain v. Chairman Municipal Committee, Mirpur 1992 CLC 2203 and Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223). As an upshot of the above the appeal is accepted and Government Order No. Admin./A‑5(6)/S.O.‑V/92, dated 19th November, 1992 is set aside with the result that respondent No.4 shall cease to hold office as Deputy Director (Planning, Development and Evaluation). The Government may fill up the post in accordance with law, whether temporarily or on permanent basis. A.A./51/SC.A Appeal accepted.