1999 SCMR 1566 (PLP)

MUNAWAR AHMED MIRZA, J.

Relevant facts briefly mentioned are, that Pakistan Public Administration Research Centre (hereinafter referred to as "Research Centre" has been established under the Control and Management of Cabinet Secretariat, Government of Pakistan.

2. Ms. Saeed-un-Nisa Abassi, appellant in Civil Appeal No. 1724 of 1996, (hereinafter described as 'the appellant') was initially appointed in B-16 on 1-3-1979 in the Research Wing of Management Services Division of the above "Research Centre". With passage of time she was promoted to B-17 towards 10-5-1983 and placed in B-18 with effect from 25th May, 1986. Later she was confirmed as Deputy Director in B-18 with effect from 19-7-1993 vide Notification No.10/l/93-Estt.1, dated 30th September, 1993. Whereas Asghar Jameel, petitioner in C.P.L.A. No.972 of 1997 (hereinafter described as the petitioner') was appointed as Assistant Director (M&P) B-17 in the "Research Centre" of Management Services Division on 22-5-1984 and was confirmed against said post vide notification dated 3-9-1993 (supra).

3. The "Research Centre" has three independent wings comprising of (i) Research, (ii) Statistic and (iii) Manual and Publications (M&P); with following organizational set up:-- ORGANIZATIONAL CHART OF P.P.A.R.C.

4. It appears that towards September, 1993, due to economy derive of the Government, several employees in the Management Services Division, PPARC, including 'the appellant', who was performing functions as Deputy Director (B-18) were declared surplus. Subsequently by means of Notification No. 131/l/86-Estt. 1, dated 1st November, 1993 services of 'the appellant' were placed at the disposal Of Management Services Division for posting in the "Research Centre" under Rule 3(3) of Government Servants (Appointment, Promotion and Transfer) Rules, 1973. Notification is reproduced below:-- "Government of Pakistan Cabinet Secretariat Management Services Division ............... Islamabad, the 1st November, 1993. No.13/l/86-Estt-I.--In pursuance of Estt. Division's Notification No. 13/104/93-D.2 dated 26th October, 1993 Miss Saeed-un-Nisa Abbasi, Deputy Director (BPS-18) Management Services Division, Islamabad, (surplus hand) is posted as Deputy Director 99 Research) (BPS-18) against vacant post in the P.P.A.R.C., Management Services Division, Islamabad under Rule 3(3) of Government Servants (Appointment, Promotion and Transfer) Rules, 1973 w.e.f. 1-11-1993 9(FN). She has jelinquished the charge of the post of Deputy Director, Management Services Division in the afternoon of 31st October, 1993 and assumed the charge in P.P.A.R.C. in the forenoon of 1st November, 1993. (Sd.) (Muhammad Sabir), Section Officer."

5. Later the Government of Pakistan through Cabinet Secretariat decided to recorganize the service structure of "Research Centre" and redesignated the posts of Director (Research) B-19 and Deputy Director (research) B-18 vide Notification No.4(2)/94-PPARCIMSD/94, dated 1-9-1994 whereby with approval of the competent authority following two posts were created;

(i) One post of Director (Research) BPS-19 is redesignated, as Director (Statistic) BPS-19. (ii) One post of Deputy Director (Research) BPS-18 is redesignated as Deputy Director (Manuals and Publications) BPS-18.

6. It appears that to make the service rules more realistic and uniform to all, three Wings of "Research Centre" necessary changes in existing service rule SRO No.817(1)/88 were introduced and notified vide S.R.O. 967(1)/95, dated 3rd October, 1995. In pursuance of above amended Rules certain changes in the organizational structure were also made, thus, restructured organizational set up of the 'Research Centre" became as under:-- ORGANIZATIONAL CHART Of P.P.A.R.C,

7. Consequently the post of Deputy Director (Research) B-18 alongwith its incumbent 'the appellant' was redesignated as Deputy Director (Manual and Publications) B-18. This placement of Deputy Director (Research) B-18 alongwith its incumbent against redesignated post of Deputy Director (M&P) B-18 vide Notification No.4(2)/94-DR1/PPARC dated 17-10-1995, gave cause of grievance to petitioner Asghar Jameel because, he claimed entitlement for promotion against said post, vigorously urging that above incumbent was not qualified for initial appointment for promotion against the post of Deputy Director (Manaual and Publications). He, therefore, on 15-11-1995 submitted a representation to Secretary, Establishment Division, Islamabad, and eventually on 25-2-1996 filed Appeal No. 132 (R) of 1996 before Federal Service Tribunal, Islarnabi-A, wherein following relief was sought:

"(1) The impugned office orders of Management Services Division No.4(2)/94-Dr (PPARC), dated 17-10-1.995, being unlawful and having no scope of rules be ordered to be set aside. (2) The Management Services Division be' directed to refrain from filling up the post of Deputy Director (Manuals and Publications), through otherwise than the prescribed manner as laid down in the Recruitment Rules of Pakistan Public Administration Research Centre. (3) The appellant be provided relief on the basis of Articles 4, 5 and 25 of the Constitution of Pakistan by protecting him against illegality, injustice, arbitrary and malicious treatment on the part of Management Services Division."

8. The appeal was accepted by the Service Tribunal through judgment dated 11-6-1996, whereby order dated, 17th October, 1995 regarding posting of 'the appellant' as Deputy Director (M&P) was declared to be violative of rules with directions to reconsider 'the petitioner' for promotion against post of Deputy Director (M&P) in accordance with rules as amended by SRO.967(1)/95 dated 3-10-1995. The Federation of Pakistan challenged the said decision through C.P.L.A. No.488 of 1996, whereas 'the appellant' separately 6 filed C.P.L.A. No.489 of 1996 against above decision of the Federal Service Tribunal. Leave in both the matters was granted on 19-11-1996 in following terms and the petitions were renumbered as Civil Appeals Nos. 1723 and 1724 of 1996 respectively:

"

3. In seeking leave to appeal against the judgment of the learned Tribunal, the learned Deputy Attorney-General contended that it was open to the competent Authority to reorganize a department and to redesignate the post of Deputy Director (Research) in the Research Wing of P.P.A.R.C. as Deputy Director (M&P) and transfer the said post from Research Wing to M&P Wing of P. P. A. R. C. It is contended by the Deputy Attorney-General that while accepting the appeal of respondent No. 1, the learned Service Tribunal failed to take into consideration the order passed by the competent Authority re-designating the post of Deputy Director (Research) as Deputy Director (Manuals and Publications) and transferring the said post to the (M&P) Wing of P.P.A.R.C. alongwith incumbent of the post. It is also contended by learned Deputy Attorney-General that the action of the competent Authority was within its power and it could not be set aside by the Service Tribunal as no vested right of respondent No. I was affected by the action taken by the competent Authority.

9. During pendency of above appeals 'the appellant' has been promoted as Director (M&P) B-19 vide notification dated 30-11-1996. 'The petitioner' was equally aggrieved from the said action of the Cabinet Divisions, Government of Pakistan and filed representation which remained unresponded. After waiting for the statutory period of 90 days he filed Appeal No.210 of 1997 before the Federal Service Tribunal against aforesaid promotion of the appellant'. The Tribunal by means of order dated 5-7-1997 held that appeal was rendered infructuous. Operative portion is reproduced below:-- "

5. During the course of arguments, the representative of the respondent-?Department had stated that the appellant was being considered for promotion to the post of Deputy Director and this commitment on behalf of the respondent-Department should have satisfied the appellant but contrary thereto he was of the opinion that the post of Deputy Director has been abolished or declared to be surplus and, therefore, there is no likelihood of his consideration for promotion to the said post. Thus, the appellant himself negated the bold commitment on behalf of the respondent-Department. Be that as it may, the judgment pertaining to the consideration of the appellant for promotion to the post of Deputy Director is sub judice before the Appellate Court and no further comments on this point are advisable till the decision by the Honourbale Supreme Court.

6. With these observations we do not find any force in this appeal and consequently the first prayer in appeal is dismissed while the second one is infructuous." This petition was kept for hearing alongwith other two appeals, mentioned hereinabove.

10. Arguments were addressed by Raja Muhammad Bashir, Advocate Supreme Court, for 'the appellant' and Maulvi Anwarul Haq, Deputy Attorney-?General, for the Federation of Pakistan, besides 'the petitioner'. Learned counsel for 'the appellant', raised following contentions:-- (i) That P,P.A.R.C. consists of three functional units under the administrative control of Cabinet Division. The competent authority enjoys exclusive powers to restructure the orgnizational set-up for effective administration. Therefore, 'the petitioner' has no vested right to challenge the same. (ii) 'The appellant' was already working against the post of Deputy Director (Research) B-18 which was, however, redesignated as Deputy Director (M&P) B-18 alongwith incumbent for administrative reasons. The appellant' even otherwise had requisite qualification, for appointment against redesignated post, therefore, objections put forth by 'the petitioner' are without substance. (iii) 'The appellant, was confirmed in B-18 vide Notification No.10/1/93?Estt.I, dated 20th September, 1993 when 'the petitioner' through same notification was confirmed as Assistant Director (M&P) B-17. Besides, under the rules 'the petitioner' at the relevant point of time was not eligible for promotion to the high grade. Whereas 'The appellant' had worked as Assistant Director and Deputy Director (M&P) in P. P. A. R. C. by performing effective functions.

11. Learned Deputy Attorney-General supporting 'the appellant' canvassed, that 'the petitioner' at the relevant time neither had any vested right nor was eligible for promotion to B-18. He maintained that competent authority enjoys plenary powers to make organizational changes for better administration, which, therefore, could not be challenged. Learned Deputy Attorney-General, however, pointed out that during the pendency of present proceedings 'the appellant' has already been promoted as Director (M&P) B-19 whereby post of Deputy Director (M&P) in B-18 has fallen vacant; and case of 'the petitioner' for promotion against said post is under active consideration before the competent authority. According to him, the grievance of 'the petitioner' is likely to be met with. 12. 'The petitioner' opposed these two appeals and pressing his grievance set up in Civil Petition for Leave to Appeal No.972 of 1997 argued that:

(i) Under the Revised Recruitment Rules, 1995, post of Deputy Director (M&P) could be filled by ratio of 75 % through promotion and 25 % by direct recruitment. Whereas 'the appellant' neither fulfils necessary qualification nor could be lawfully absorbed against the post of Deputy Director (M&P) B-18 through transfer. (ii) The action authorities by 'adjusting 'the appellant' against the post of Deputy Director (M&P) has been filled up contrary to provisions of section 9 of Civil Servants Act, 1973 and the Recruitment Rules of P.P.A.R.C. framed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Service right of 'the petitioner' has, thus, been unjustifiably infringed. (iii) The procedure adopted for accommodating 'the appellant' is highly discriminatory and Management Services Division by ignoring 'the petitioner' has not only violated the law but also denied Constitutional protection of providing equal treatment before the law. (iv) Each administrative section has separate function and rules of procedure, therefore, vested right of the 'petitioner' has been seriously prejudiced.

13. We have perused the record and carefully considered above submissions. Firstly, it may be seen that "Research Centre" is functioning under Management Services Division of Cabinet Secretariat, Government of Pakistan. Presently the qualification, experience and other conditions relating to appointment of officers in B-16 and above are regulated by the changes introduced after administrative reorganization and Rule notified vide S.R.O. No.967(1)/95, dated 3-10-1995 issued in pursuance of Rule 3, sub-rule (2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Grievance of 'the petitioner' accrued when appellant who was already Deputy Director (Research) by virtue of Reorganization conversion of her post into Deputy Director (M&P) B-18 was adjusted as incumbent vide Notification No.4(2)/94? Dr-PPARC, dated 17-10-1995. Undisputedly till there was neither any post of Deputy Director (M&P) nor 'the petitioner' had cause of action. In this back? ground two folds objection raised by 'the petitioner' needs to be critically analyzed. Record amply discloses that 'the appellant' had served in the capacity? of Assistant Director (M&P) for considerable period which justifiably fulfils the requisite qualifications for her absorption/appointment in Manual and Publications Wing of "Research Centre". 'The petitioner' made an abortive attempt to suggest that stay of 'the appellant' in Manual and Publications Wing was merely ad-hoc arrangement and insisted that she primarily belonged to Research Wing. Without entering deep into such controversy, it is quite manifest that 'the appellant' had necessary experience of working in Manual and Publications Wing. Looking to other side 'the petitioner' had remained on deputation for considerable period and at the relevant time lacked requisite qualification for promotion specially keeping in view peculiar circumstances of instant case.

14. Secondly, it cannot be denied that Government enjoys plenary authority to carry out organiztional and administrative changes within the department by creating or abolishing posts according to impending needs and attending factors. None has alleged any mala fide as regards reorganization of administrative units by the competent authority. Therefore, in such eventuality the conversion of certain post from Research Wing alongwith its, incumbent to Manual and Publications Wing of same Department, specially when the person assigned with duties was independently qualified for such appointment or posting would not cause infringement of service right of 'the petitioner'. Factually till introduction of new changes by way reorganization no post of Deputy Director (M&P) existed. Therefore, in the given circumstances 'the petitioner' has been placed in more favourable position because after promotion of 'the appellant' (who was throughout placed in higher grade) as Director B-19, the post of Deputy Director (M&P) has fallen vacant. Learned Deputy Attorney-General has categorically expressed that 'the petitioner' is being actively considered for promotion against said vacancy. Therefore even if there existed any apprehension or remote possibility of adverse effect 'the petitioner' the same in view of statement made by Dy. A.-G. looses significance. Thus, there is hardly any reasonable ground to show contravention of section 9 of the Civil Servants Act. These conclusions are supplemented by the observation in PLD 1988 SC 155 '(at 162) (Ch. Muhammad Insha Ullah v. Chief Conservator of Forests (P&E), which reads thus:--?????? "Nobody denies to the Governor the power under section 23 of the Civil Servants Act to frame Rules of Service. This power was expressly invoked for framing the rules. The rules framed did not, as already shown, affect any vested right of the respondents. In the absence of impairment of vested right, it would be within the exclusive competence of the Governor to determine the terms and conditions of the service. It cannot be said that a rule which grants weight age to academic qualifications against experience is unreasonable and harsh. With the increasing emphasis on specialization and improved techniques and knowledge, the academic qualifications may be granted greater weightage than the actual experience on the job without such qualifications. There was, therefore, nothing unreasonable or manifestly oppressive. It cannot be said that the exercise of power was mala fide where the power was possessed and has been exercised reasonably and on relevant considerations. There is now perceptible greater emphasis visibly shown in the framing of rules to academic qualifications than to on the job experience without such specialized qualifications particularly where promotion to higher post is involved. In the circumstances, none of the grounds taken by the respondents should have prevailed before the Service Tribunal for avoiding the amendment in the rules which were competently made, All the appeals are, therefore, allowed, the judgment-of the Service Tribunal is set aside and the appeal by respondents 3 to 5 before the Service Tribunal is dismissed."

15. Thirdly, it is noteworthy that by virtue of sub-rule (3) of Rule 3 incorporated by S.R.O. 57(1)/93, dated 26-1-1993 in Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, introduced on 26th January, 1993. It is incumbent upon the authorities to show preference for adjusting persons who have been rendered surplus against available posts in Basic Pay Scales to which the incumbent may fall, subject to fulfilment of qualification and other conditions, Therefore, no illegality has been committed by the concerned authority in transferring the post alongwith incumbent in the changed organizational set-up; validity whereof was not challenged by either party. In this background the principle of law enunciated in case of Federation of Pakistan v. Abdul Rashid (1995 PLC (C.S.) 792) has no applicability to facts of present controversy. 16.? For the above reasons we are inclined to hold that conclusions drawn by Federal Service Tribunal in the impugned judgment dated 11-6-1996 are not sustainable. Consequently, Civil Appeals Nos.1723 of 1996 and 1724 of 1996 are allowed and judgment of the learned Tribunal is set aside, and Civil Petition No.972 of 1997 is dismissed. The learned Deputy Attorney-General has stated that the case of 'the petitioner' for promotion to the post of Deputy Director, (Manual and Publications) is under consideration. We will observe that if he is found eligible, he should be given promotion from the date what he became eligible. Parties are, however, left to bear their own costs. H.B.T./F-34/S ???????????????????????????????????????????????????????????? Order accordingly.