1990 PLP (C (PLC(CS))

Syed Zaman Ali Shah and Taj Muhammad Khan Durrani are holding the rank and post of P.D.S.P. They were inducted in police service as Prosecuting Sub‑Inspectors in the years 1966 and 1967 respectively and were promoted to the present position on May 5, 1976 and June 26, 1976. Syed Abdul Qayyum Shah Gilani and Sardar Muhammad Azam Khan joined police service on December 1, 1958 and June 1, 1965 and were promoted as D.S.P. on January 29, 1981 The petitioners have invoked the special jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, seeking quashment of Government Order of May 31, 1990, whereby Mr. Fahim Ahmad Khan, A.S.P., respondent No. 2, was ordered to take over as S.P. Mirpur

2. It is alleged that the petitioners are senior to respondent No.

2. By virtue of seniority, their case of promotion was already on the table of the Selection Board. Thus, under rules, either one of them, on the hams of seniority. Alone was qualified, as such competent, to take over as S.P. Mirpur. Their grievance is that Mr. Fahim Ahmad Khan, who was recruited directly as A.S.P. on January 7, 1986, has yet to qualify for his promotion or transfer as S.P., as he has not completed tile requisite period of five years in service. ?

3. The order of the Government is assailed as violative of provisions of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter referred to as C.S. Rules) and Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 (hereinafter referred to as P.S. Rules). It is alleged that the impugned order being violative of the aforesaid rules, was ineffective and inoperative fur want of authority and jurisdiction.

4. The respondents controverted the grounds of attack against the impugned order and stated that it was not an order of promotion as alleged by the petitioners, as it was purely an arrangement of ad hoc transfer, which the Government was competent to do. Respondent No. 2, presently posted as A.S.P. Hattian, District Muzaffarabad, was posted as Superintendent of Police, Mirpur in his own pay and scale, as such the impugned order does not tantamount to promotion or direct permanent appointment. In support of the impugned order, reference was made to the provisions of section 9 of the Azad Jammu and Kashmir Civil Servants Act whereby the Government is empowered to post a civil servant anywhere it likes. A civil servant is under an obligation to comply with such order. Moreover, it was stated that the petitioners have no lawful grievance against the; posting of respondent No. 2, as the same is nut a vested right of any civil servant. The allegation of mala fide, against the Government was repudiated, as by virtue of the impugned order, the seniority of the petitioners was not disturbed.

5. The respective claims to seniority and current positions held by the petitioners an respondent No. 2, are undisputed. The sole point necessitating its resolve by this Court confines to interpretation , f the order of posting of respondent No. 2 as S.P. Mirpur by transfer. In case it is construed that the impugned order does not tantamt urt to promotion, the petitioner, obviously, would have no grievance and would be incompetent to seek their redress by invoking special jurisdiction of this Court. Conversely, if the order is construed as a promotion feigned as posting, the petitioners, undoubtedly, are aggrieved party; as such competent to challenge the validity and propriety of the impugned order.

6. It is relevant to state here that the impugned order is one out of the series of post‑selection orders issued by the outgoing Government. It may be called the last kick of the horse leaving the stable of power. Ordinarily, on outgoing Government avoids making of promotions and transfers after general elections, particularly when it loses the mandate of the electors. Orders of promotions and transfers in violation of the rules occupying the field, issued at last leg of tenure of the Government, are generally construed as mala fide. Therefore, it is better and honourable way to avoid issuance of such orders and to quit the seat of power gracefully and with magnanimity. But unfortunately, in the third world States, particularly in smaller States like ours, such an honourable course of action is least appreciated and given an iota of weight.

7. The proposition under consideration, as mentioned elsewhere, confines to interpretation of the impugned order. It would be conducive to reproduce the impunged order for convenience of its resolve:‑‑ It is undenied that apparently the shape of the order reflects as an order of transfer. The is so, as respondent No. 2, who is an A.S.P., has to assume the office of S.P. (higher in cadre and a selection post), pct he has to function against the scale and salary presently admissible to him. As he has to function in his own pay and scale, it is therefore argued that the impugned order does not amount to promotion. Before analysing the spirit of the order, let us understand the difference between "transfer" and "promotion". The terms "transfer" and "promotion" applicable to civil services, are not defined in the Civil Servants Act. In Kashmir Civil Service Rules, in rule 1(vii) (K.S.R. Volume II) the term "promotion is defined as": "`Promotion' means the appointment of a member of a service or class of a service in any category or grad.;, to a higher category or grade of such service or class:' The term "transfer" has not been defined even in the K.S.R. However, ill Supplementary Rules of the Fundamental Rules, in Rule 2(18), it has been defined as under:‑‑ ?????? "Transfer means the ~ movement of a Government servant from one headquarter station in which he is employed to another such station, either to take up the duties of a new post, or it consequences of a change of his headquarters." Ordinarily, transfer of a civil servant or an employee is made from one post or assignment to another post of equal status, admitting same status, benefits, facilities and exercise of powers. Transfer, when does not involve rank or pay or power, it is termed as a routine transfer of a civil servant. When a transfer involves reduction in rank or pay or power, it submitted as demotion or reversion. Vice versa, when a transfer involves elevation rank or may or power, in addition to allied benefits and facilities, it cannot be construed a transfer to an equivalent rank or position but an implied promotion.

8. The term "promotion" used in context of civil officers; or employees is construed as such when an officer or employee is upgraded or elevated with an increase in salary, benefits and facilities attached to the post or exercise of powers in that capacity. In case of a regular promotion, gall the aforesaid priviieges are accompanied to an order of promotion. However, in exceptional cases where promotion is temporary or irregular or subject to fulfilment of some conditions or qualifications, it is a promotion in intrinsic sense, though of ad hoc nature.

9. It is undenied that transfers of civil officers or employees and their promotions arc regulated by statutory provisions applicable to civil servants of the State.

10. It is the prerogative or power of the public authority or the Government transfer civil servants from one post to another and from one place to another as it may consider suitable and conducive to the, civil administration. But at the same time, the Government or public authority has to keep in mind that a transfer order, in all cases, must conform to the rules and regulations controlling the administration. Likewise, promotions in the civil service which is regulated by Constitutional and statutory provisions is to be made in strict compliance of law. An omission or derogation to the provisions of rules and regulations pertaining to promotion, renders it a nullity in the eye of law. On this premises, it has to be accepted that the Government or public authority has to pass its orders of promotion or transfer, as the case may be, in very cleat and open terms leaving no ambiguity or doubt about its intention. When promotions are made in the name of transfers, with the intention to affect the rights of senior civil servants, such orders of promotions, though shown as transfers, cannot be allowed to continue. The legal position of promotions in the name of transfers, was considered as evasions and illegal in Corpus Juris Secundum at page 435, Volume

67. It is reproduced: "Promotions under the name of `transfers' are evasions and illegal, and a transfer can be made only when it does not in fact constitute a promotion."

11. It is accepted by the learned Additional Advocate‑General that the post I of S.P. is a permanent senior post. It is a selection post and it is to be filled in according to the method postulated under rule 4(2) (a), (b), (c) and (d) of the P.S. Rules. Respondent No. 2, who is presently an A.S.P., ordinarily cannot be transferred as S.P., ‑unless he is promoted and posted as such. This is so, as presently he is functioning as A.S.P. and the post of A.S.P. is admittedly a junior post. On account of disparity between the two posts and the rank of the officers, it is undenied that the respondent, who is an A.S.P., cannot be transferred, in the ordinary course of events, and posted against a senior post of higher cadre and a selection post. It is correct that vide the impugned order, the respondent No. 2 is placed in the same grade and he has to draw the same salary, but it is undenied that by his posting as S.P., he would avail all the benefits and facilities which are admissible to the post of S.P. and would exercise the powers which accompany the post of S.P. Thus, by virtue of availing the other benefits and facilities and by exercising the powers of a senior post, the respondent is obviously placed in the position of his promotion. Thus, the impugned order which purports to be a transfer order, is in fact an order of indirect promotion of respondent No. 2.

12. Rule 4(1)(b) of the P.S. Rules postulates that an ?A.S.P., recruited by initial recruitment, as is the case of respondent No. 2, may be promoted to the next higher grade after completion of five years service in usual grade. Thus, by C virtue of the statutory provisions, it is a condition precedent that an A.S.P. before functioning as S.P., must serve as A.S.P. for a period of five years. Sub‑rule (2), clause (d), further lays down that no person shall be promoted from the post of A.S.P. to the post of S.P. or equivalent or above, unless he successfully qualifies all departmental examinations and training programmes which are necessary prior to promotion to, the post of Superintendent of Police. We accept that the Government is empowered to relax these rules, but the fact remains that the Government has riot described in the impugned order that the said order was passed by relaxing the aforesaid provisions of P.S. Rules to enable the respondent to function as S.P.

13. Rules 9, 10, 11, 12 and 13 of the C.S. Rules are also relevant for appointment, promotion or transfer of civil servants to posts in various grades. In case we accept the proposition propounded by the learned Additional Advocate-?General to hold that the impugned order was an ad hoc arrangement as such it shall not tantamount to promotion even temporary, in that case too, the impugned order does not sustain. Rule 13(1) of C.S. Rules postulates that no person shall be promoted on ad hoc basis unless he possesses the qualifications for the post and his appointment as such is approved by the Chairman of the appropriate selection authority. The spirit of law, in all cases including ad hoc arrangements, is that a civil servant shall hold a post on ad hoc or permanent basis only when he is qualified to hold the same. In order to function as S.P. on ad hoc basis, the initial condition of completion of service of five years as A.S.P. is 1 necessary to enable the respondent to hold the post of S.P. The respondent has basically yet to qualify to officiate or function as S.P. Even as a temporary and ad hoc arrangement, he is not considered a suitable and qualified person to act as such.

14. The learned Additional Advocate‑General, in support of his proposition, made reference to an unreported case of this Court titled "Gul Zaman Oasid and another v. Azad Government and another" decided on July 7, 1988. On going through the aforesaid judgment of this Court, it is sufficient to observe that the question of qualification or disqualification of the civ?1 servant promoted under the order of transfer to higher post, was not considered. Thus, the present case is obviously distinguishable from the aforesaid case. It is of least concern for this Court, at this stage, to go into the question of seniority of the parties or to decide whether the Government was under an obligation to promote, under the transfer order, either of the petitioners against the post of S.P., as at present the post of S.P. is being run by Sardar Muhammad Anwar Khan, the senior most police officer in the police department among the officers of the same rank. Therefore, suffice it to say that the impugned order being violative of the rules occupying the I D field, is unsustainable.

15. It is seldom desirable that Courts should embark upon extending advice to public authorities or the Government in the discharge of their functions, yet it is felt conducive and in the interest of justice to cite an observation of the House of Lords in the London Transport fares case, "Bromley London Borough Council v. Greater London Council", quoted by Lord Denning in his recent publication "The Closing Chapter' at page

139. It is reproduced: "There has emerged of late a duty on a public authority‑‑in carrying out its public law functions‑‑to hold the balance fairly between coml,toii, sections of the public. Just as a trustee is under a duty to hold an even hand between beneficiaries and not favour one above the other, so also is a public authority under a duty to hold the balance fairly between the competing interests under its care. Because of the analogy with trusts, it is called a fiduciary duty." On the analogy of the aforesaid finding, it is advisable to that the Government or public authority, in discharge of its functions, even in the field of civil services or civil administration, is under an obligation to hold an even hand between the beneficiaries of its orders and actions.?? In presence of the aforesaid considerations, we have come to the conclusion that the petition must succeed. The petition is, therefore, accepted. The impugned order is set aside. No order as to costs. A.A./414/H.C.A.???????????????????????????????????????????????????????? Petition accepted. ??????????? (Imam Ali G. Kazi, J)