2002 PLP 865 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑By this consolidated judgment, we intend to decide both the titled appeals involving common questions of law and facts.

2. Four posts of Naib Tehsildars, became available. Applications were invited on 1‑5‑1997 from the staff of the different departments to fill up the said posts. Originally, the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 notified on 16‑6‑1990 a governing the matter in respect of these appointments by way of promotion or through direct recruitment. On 12‑: t‑1992, these rules were amended and quota was fixed as under:‑‑ "(1) 50% by initial recruitment, (2) (a) 38 % by promotion on seniority‑cum‑fitness basis from amongst Kanungoes in the division with at least 3 years' experience as such (b) 12 % promotion through selection on merit from amongst sub ordinate services as under:‑‑ (i) Assistant , Stenographers and Senior Clerks of Revenue Department in the Division who have three years' experience as such. (ii) Assistants, Stenographers and Senior Clerks in the Office of Boar of Revenue, Punjab, Directorate of Land Records, Punjab and Punjab Revenue Academy who have three years' experience as such, Note (11 They shall be deemed to be the members of the same functional unit for the purposes of promotion to the post of Tehsildar. Note (2) Selection from Stenographers shall not exceed 20% of the quota fixed for subordinate services."

3. It may be mentioned here that it was provided that not more than 20% of this 12% quota would go to the Stenographers. Through order, dated 13‑9‑1999, the Selection Committee consisting of Commissioner, Sargodha as Chairman, Additional Commissioner (Revenue), Sargodha and Assistant Commissioner (Revenue) as members selected Ghulam Shabbir Tahir, appellant in C.A. 1416 of 2001 and respondents Nos.3 to 5 in that appeal on merits. Muhammad Ashraf and Mian Nazim‑ud‑Din were kept in waiting list for appointment against the post falling vacant thereafter. Feeling aggrieved, respondent No. 1 Khalid Mehmood whose merit position was at Serial No. 1, and one Azhar Abbas at Serial No.25 filed appeals before the Board of Revenue which were rejected on 23‑9‑1999. Two appeals one by Khalid Mehmood and the other by Azhar Abbas were filed before the Punjab Service Tribunal which have been decided through the impugned judgment dated 18‑5‑2001 against which these two appeals by leave of the Court are directed.

4. The Service Tribunal came to the conclusion that Azhar Abbas's appeal was barred by time, therefore, the same was dismissed on the short ground. As regards Khalid Mehmood, his appeal was dismissed on merits, as it was found that on the merits list, he was much below the other candidates, therefore, there was no chance of his appointment or promotion, Anyhow, after dismissal of both the appeals, the Tribunal proceeded to record findings that the selection of Ghulam Shabbir Tahir, appellant in C. A. 1416 of 2001 was also not proper or valid as already two posts of Naib Tehsildars were being held by the Stenographers, as such, no vacancy was available from 20% quota fixed for them, therefore, it was recommended that person next to him in the merit list should be appointed. These appeals as observed above are directed against his judgment.

5. We have heard Dr. Mohyuddin Qazi learned counsel for the appellant in C. A. No. 1416 of 2001. His main argument was that once the appeals of Khalid Mehmood and Azhar Abbass were dismissed, no power was left with the Service Tribunal to interfere with the appointment of appellant in the said appeal on any ground, for the Tribunal had become functus officio. Once it was held that both the appellants before the Service Tribunal did not qualify for appointment on merit, that was end of the matter and the interference with the appointment of the appellant in this appeal was not permissible under the law. He, however, submitted that subsequent Abdul Hameed, Stenographer who had been appointed as Naib Tehsildar retired on 30‑4‑2000 and another Stenographer namely Ashiq who was appointed had retired on 31‑8‑1999, therefore, by the time the Service Tribunal passed the impugned judgment, posts were available within 20% of 12 % quota fixed for Stenographers, as such, if Muhammad Ashraf and Nazim‑ud‑Din could be appointed against any post falling vacant after the selection by keeping them in waiting list in the same manner, the appointment of appellant in this appeal against the said post could not be interfered with, for he could at the relevant time retain the post being within quota of 20 % .

6. These contentions have considerable force. Ghulam Shabbir Tahir appellant in C.A. 1416 of 2001 was placed at Senior No.4 in the merit list, therefore, the Service Tribunal was not justified in law to interfere in his appointment as Naib Tehsildar through promotion, therefore, this Civil Appeal is hereby accepted, judgment, dated 18‑5‑2001 of the Service Tribunal qua him is hereby set aside.

7. Coming to the appeal of Khalid Mehmood (C. A. No. 1370 of 2001), the main thrust of argument of learned counsel for the appellant was that selection had throughout been made from the very start from the staff of the Commissioner/Deputy Commissioners and not from the staff of the Board of Revenue, for the Selection Committee consisted of the Commissioner, Additional Commissioner and Assistant Commissioner (Revenue), therefore, there was element of arbitrary pick and choose according to their own whim. On the last date of hearing, we directed the authorities to produce the relevant record which has been produced by Mr. Alamdar Hussain Shah.

8. We have perused the same with the assistance of learned counsel for the appellant and find that merit position has been transparently determined on the basis of criteria according to which marks were allocated to the candidates qua their ACRs, written test and interview. The first three persons on merit list do not belong to the Commissioner Office. Merely because on merit, the office belonging to a particular office obtained more marks itself will not be sufficient to, hold that selection was either mala fid, or element of pick and. choose was involved.

9. Learned counsel for the appellant in C.A. No. 1370 of 2001 has not been able to point out that Khalid Mehmood who was at Serial No. 15 on the merit list could be appointed through promotion as Naib Tehsildar against one of the posts in question. Even if the marks of Khalid Mehmood, appellant given in the written test and interview are brought at par with the selected candidate, even then he would not improve his qualifications qua selected candidates/respondents.

10. Learned counsel for the appellant submitted that in order to avoid any discrimination, quota should be fixed far staff of each office separately It would involve amendments of the rules which is not the function of the Court. The appellant may, if so likes, approach the concerned authorities who may pass any suitable order.

11. For the foregoing reasons, C.A. No. 1370 of 2001 has no force which is accordingly dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./K‑45/S Petition dismissed.