1986 PLP (C (PLC(CS))

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑‑Muhammad Ismail, Assistant Engineer, Local Government and Rural Development Department, Sargodha, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Local Government and Rural Development Department, Lahore and Mr. Munawar Hussain, Sub‑Engineer, Housing and Physical Planning‑ Department, care of Deputy Director, Housing and Physical Planning Department, Gujranwala, as respondents. 2. By virtue of this appeal he has prayed that the impugned order, dated 6‑2‑1986, Annexure be set aside. 3. Brief facts of the case are that the appellant joined service in the Local Government and Rural Development Department, in the year 1967, as Sub‑Engineer, in NPS‑11. However, he was posted as Acting Assistant Engineer in the said Department for the last four years. By order, dated 31‑10‑1985, the appellant was transferred from Khushab to Sargodha District. The respondent No. 1 has issued impugned order, dated 6‑2‑1986, whereby respondent No. 2 Munawar Hussain, Sub-Engineer of Housing and Physical Planning Department has been posted as Assistant Engineer in Local Government and Rural Development Department, Sargodha in his own Pay and Scale with immediate effect thus reverting the appellant. As this being the order of Government the appellant has challenged the same before us on the ground that he would be aggrieved party in the sense that the impugned order would be culminating in his reversion to NPS‑11, whereas he has been working as Acting Assistant Engineer which is a post of NPS‑17. 4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and Ch. Muhammad Aslam Virk and Sh. Muhammad Saleem, learned counsel for respondent No.2, at length and have perused the entire record of this case carefully with their assistance. 5. Learned counsel for the appellant has submitted that the impugned order, on the face of it, was illegal, misconceived and contrary to the rules. To substantiate his point of view expressed above, he has submitted as under: (1) The posting of respondent No.2 as Assistant Engineer amounts to his promotion, in which the prescribed manner as laid down in the Rules and Law has not been followed. (2) Even transfer of respondent No.2 from Housing and Physical Planning Department to Local Government and Rural Development Department, as Sub‑Engineer was also contrary to the Rules. The respondent No.2 belonged to a different cadre/ Department and was governed by different rules whereas the post of Sub‑Engineer in Local Government and Rural Development Department was borne on different cudre/different Department with separate set of Rules with different qualification. He has relied on 1985 PLC (CS.) 273, as upheld by the Supreme Court of Pakistan vide 1985 S C M R 1057. He has further relied on 1985 S C M R 699, 1982 S C M R 186 and 1984 P L C (CS) 276, instructions of S.G.A.t I. Department printed at pages 409 and 410 of O & M Establishment Manual Vol. i, 1974, Punjab Local Government and Rural Development Department Service Rules, 1981 and the Housing and Physical Planning Department's Service Rules, 1984. Learned counsel for the appellant has further submitted that there was no vacancy of Sub‑Engineer in Sargooha Division in the Local Government and Rural Development Department and as such the transfer of respondent No.2 as Sub‑Engineer was totally misconceived. 6. On the other hand learned District Attorney and Ch. Muhammad Adam Virk and Sh. Muhammad Saleem on behalf of Government and contesting respondent No.2 respectively have submitted that respondent was placed in BPS 16, vide Annexure R 1 after having been declared successful in the Departmental Examination vide Annex R 2 and in his own pay and scale No.l6, which he has duly earned and he has been transferred to the Local Government and Rural Development Department. However, he has not been permanently absorbed in the said Department and his lien was still with the parent Department. Therefore, the question of his seniority via‑a‑via the Sub‑Engineers of the Local Government and Rural Development Department did not arise; and his posting in the Department was not dependent on determination of such seniority. It has been further submitted that under section 9 of the Punjab Civil Servants Act, 1974, any officer/ official can be transferred anywhere in the Province, and no exception could be taken to the same. It has been vehemently argued that the appellant was basically Civil Servant of BPS 11 and was never cleared for promotion by the Departmental Promotion Committee and has been appointed by unauthorised Officer to the post which carries BPS 17, for the last so many years, thus no basic right of his, has been disturbed and he could be reverted to the substantive post at any time, without any notice. Learned counsel for the respondent have pointed out that the posting of the appellant was nothing but temporary arrangement and was liable to be transferred to Grade 16 post which he held substantively, therefore, clearance of the Departmental Promotion Committee was not required as argued by the learned counsel for the appellant. Learned counsel for the respondents have also challenged the locus stand of the appellant to file appeal before this Tribunal as according to them, he was not an aggrieved party against a final order and has come with a claim to which he has got no right. They have relied on the latest letter dated 17‑4‑1986, by Secretary H.P. & E.P. Department has informed Mr. Muhammad Aslam Virk, Advocate, that Munawar Hussain Sub‑Engineer B.P.S.‑16 H. a P.P. Department has been regularly transferred from this Department to Local Government and Rural Development for temporary posting in the said department. By placing reliance it has been argued that infirmity if any of Munawar Hussain's posting stands removed as the said transfer has been owned by the Secretary of the Department to which Munawar Hussain respondent belongs. They have also once again re‑iterated their claim that no exception could be taken against the order of Government under section 9 of the Punjab Civil Servants Act, 1974, when the civil servant was transferred as a temporary measure to any Department in whatever capacity, as protection could only be sought under the rules, if the said transfer is made on permanent basis, to absorb the said civil servant in the new Department by terminating his lien once for all in his parent Department. It has been vehemently argued that any interference with such prerogative of the Government under section 9 of the Punjab Civil Servants Act, 1974, is going to create a state mate and repercussions in the day to any administration of Government. 7. We have given our anxious thought to the arguments advanced by the parties and first of all would determine the crucial issue in this case i.e. whether the Departments of Housing and Physical Planning and Local Government and Rural Development are two different functional units with different set of rules or not. We have after perusing the record of this case and Notifications No. SOR III‑1‑17/80 dated 5‑12‑1981, laying down the service rules in respect of Punjab Local Government and Rural Development Department; and Notification No.SOR III‑1‑11/83 dated 13‑7‑1984, prescribing the Service Rules of the Punjab Housing and Physical Planning Department, find that no exception can be taken to this arguments of the learned counsel for the appellant that these two Departments are two different functional units, governed by different set of rules altogether. To this extent learned District Attorney as well as learned counsel for the respondent No.2 have also raised no serious objection in a way tantamounting to conceding the same. However, second crucial issue would be whether the post of Assistant Engineer now being occupied by the appellant, can be made available to a civil servant belonging to a different functional unit with different qualifi cation, whether temporarily or permanently. To resolve this issue we will first of all refer to the serial No. 44 of the schedule appended to the Service Rules of the Local Government and Rural Development Service Rules, 1981. According to these Service Rules certain posts have been earmarked for transfer, whereas the others have been ear‑marked for promotion or initial appointment. In so far as the post of Sub‑Engineer is concerned, according to the method of recruitment as prescribed in Column 7 is "By Initial Recruitment". In Column 5, the qualification prescribed for the post is "Matric with 3 years Diploma in Civil Technology from a recognized Institute". This would at least clinch one limb of the issue as to whether the present post now being occupied by the appellant could be filled by transfer or not. We are very clear in our mind keeping in view the rules so quoted above, that the post of Sub‑Engineer in Local Government and Rural Development Department, to which appellant substantively belongs can only be filled by initial recruitment. This being the fact, we have to see the intrinsic value/ strength of the respondent No.2's transfer, which is now impugned before us. According to the written statement of the Government which is reproduced as under:‑ "The fact of the matter is, that he had all the qualifications for his recruitment as Sub‑Engineer in the Housing and Physical Planning Department, where he was recruited as Sub‑Engineer on regular basis. He carries his regular appointment status after This lawful transfer to the Department." In this manner Government cannot be allowed to approbate and reprobate, as now while arguing the case before us, the stand of learned District Attorney is that actually this was not a regular appointment as Sub‑Engineer in the Local Government and Rural Development Department but was only a temporary appointment. In this manner learned District Attorney is supporting the case of the respondent who also claims the same. This being the position so far we have no hesitation to hold and to which even the learned counsel for the respondent and learned District Attorney started subscribing that in fact that was the correct position and no body can be transferred permanently on regular basis from one Functional Unit to other Functional Unit and what the Government had done is that they have transferred the respondent No.2 only as stop‑gap and purely temporary arrangement basically as Sub‑Engineer in the Department of Local Government and Rural Development Punjab and to hold charge of the post of Assistant Engineer in temporary manner, in his own pay and scale. In view of this change of stand by the learned District Attorney in consonance with the stand of the learned counsel for the respondent, now what we are required to see is whether the respondent can even be transferred as Sub‑Engineer, may be in temporary capacity, from one Functional Unit to the other Functional Unit or not. For this we refer to the rulings cited by the learned counsel for the appellant in support of his contention cited as Abdul Rashid v . Director General, T .T. 1985 P L C (C.S) 273.Brief facts of the said case are that one Sirajul Haq respondent in that case was Assistant Director (Security) in Central Region that Department. He was transferred and posted as Assistant Director (Directory) in Islamabad Region. Both the posts were governed by different set of Service Rules as mentioned by the learned Federal Service Tribunal in their aforesaid judgment. Against that posting Abdul Rashid appellant filed appeal praying that the respondent was wrongly posted as Assistant Director (Directory) as the two posts were not inter‑changeable. The learned Tribunal after examining the Service Rules came to the conclusion that the very fact that two posts were treated as different groups for the purpose of appointment and Assistant Director (Security) could not be posted as Assistant Director (Directory) and for that purpose any other Assistant Director of that Department. The relevant portion is reproduced below:

"At the time the posting was ordered, respondent No.2 was posted as Assistant Director (Security), in the Central Tele communication Region. His appointment being that of Assistant Director (Security), he could not be posted as Assistant Director (Directory), as the two posts were not interchangeable. He could also riot be posted from the Central Telecommunication Region to the Islamabad Telecommunication Region, because all Assistant Directors (Directory) were to be appointed under the Notification already referred to, by selection from amongst officials in the concerned Region and not by transfer from one Region to another. That being the position, it is clear that the appellant has not impugned the promotion of respondent No.2 as Welfare Officer, but his posting as Assistant Director (Directory), in the Islamabad Telecommunication Region, which was ordered about 4 years later. The preliminary objection is, therefore, rejected. 4.Coming to the merits of the appellant's claim, we find that the rules relating to the appointment of the Assistant Director (Directory), as already mentioned, are laid down in the Notifica tion, dated 6‑7‑1976. This Notification relates only to the method, qualification and other conditions for appointment to the posts of Assistant Directors (Directory), in Grade‑16, in the various Telecommunication Regions. So far as the other Assistant Directors ` are concerned, namely, those of Security, Welfare, Examination, Administration and Hostel, the rules for appointment to these posts are laid down in another Notification, bearing No. E (I) 1‑/78, dated 18‑5‑1980. It is clear from the existence of these two separate rules that while the other Assistant Directors mentioned were treated as one group, for the purpose of appointment, the Assistant Directors (Directory) were treated as altogether separate group. From this, it follows that Assistant Director (Directory) could not be posted as Assistant Director, in another section, for example, Security or Welfare. Similarly, any of the other Assistant Directors for example Assistant Director (Security) or Assistant Director (Welfare), could not be posted as Assistant Director (Directory). The posting of respondent No. 2 as Assistant Director (Directory), on 1‑1‑1982, was, therefore, a clear violation of the existing rules. Moreover, the said respondent could not be transferred from Central Telecommunication Region to Islamabad Telecommunication Region, because, according to the Notification, dated 6‑7‑1976, the post could lie filled only by promotion of officials in the same Region and not by importation from another Region." This matter went before the Supreme Court of Pakistan when this judgment was appealed against by respondent Sirajul Asaq, but their Lordships of the Supreme Court of Pakistan confirmed the said judgment by finding it unexceptionable vide their judgment reported as 1985 SCMR 1055. As the judgment of Federal Service Tribunal, which has persuasive value, has been upheld by the Supreme Court of Pakistan, therefore, ,we can safely rely upon the same. In this manner this issue stands concluded that Munawar Hussain, who belongs to a different Functional Unit with different set of Rules, cannot be transferred to the Department of Local Government and Rural Development, as Sub‑Engineer, on the following grounds: (a) that the post was meant for initial recruitment; (b) that he did not hold pre‑requisite qualification Le. Diploma of Civil Technology. It will be useful. to mention here that Munawar Hussain holds Diploma in Mechanical Technology.

8. We will now advert to the last stand of the learned District Attorney as well as learned counsel for the respondent No.2 that be that as it may, the posting of Munawar Hussain has been made under section 9 of the Punjab Civil Servants Act, 1974, which empowers the Government to post a civil servant any where, particularly when the posting is just a posting on temporary basis and not on regular basis or permanent manner. Even according to proviso 2 of Rule 22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 a civil servant to be appointed even on ad hoc basis, must be duly qualified in accordance with provisions of Rules and order applicable to the post. The fact of the matter is that Munawar Hussain respondent No.2 who holds Diploma in Mechanical Technology positively belongs to the Housing and Physical Planning Department where he was initially recruited as Sub‑Engineer. After passing his Departmental Examination he was awarded BPS

16. His line of promotion would be in his own Department and if at alt, the Government wanted that he should be absorbed or posted in a different Functional Unit, the proper course would have been the appointment by transfer as laid down and for which procedure has been prescribed by the Government in rules 3,9 and 11 of the Rules and not in other manner. Reliance is also placed on letter, dated x4‑10‑19x4 of the Director General, Local Government and Rural Development Department, itself in which the said Director General interpreted the rules and has informed the Government that where an appointment has to be made from another functional Unit, then it would be a case of appointment by transfer against direct recruitment quota, Annexure/C, placed on file, which constitutes department's own interpretation of their rules. Before we conclude this issue, we would also like to refer to the procedure laid down by Government for the transfer and deputation of civil servant from one Department to another as printed at pages 409 and 410 of O & M Establishment Manual Vol. I (revised) as under:‑ "I am directed to say that it has been observed that there is a tendency on the part of Government Department to ask for the services of an officer (by name) for a vacancy in that Department. This has its obvious disadvantages. Similarly, the autonomous bodies also suggest names of officers for deputation. Government is of the view that an effort should be to distribute efficient officers amongst all Departments so as to maintain an equal standard of administration. Too many transfers of an officer in a short period of time not only impairs his efficiency but also unsettles him and, therefore, should be avoided. Government has decided that as a rule, whenever there is a vacancy in a particular Department/ Organization and that Department/ Organization wants an Officer with special aptitude for that job, it should send the requirements of the job and panel of names of suitable officers to Services and General Administration Department for final selection." We are now in a position to conclude, without any doubt in our mind, that Munawar Hussain's transfer as Sub‑Engineer, cannot be made against a post of initial recruitment of the Department of Local Government and Rural Development, whereas he belongs to a different Functional Unit of Housing and Physical Planning Department, even on temporary basis for regular basis. Similarly when it stands concluded that respondent Munawar Hussain cannot in any manner, be brought on the strength of Local Government and Rural Development Department, even as Sub‑Engineer, the irresistable conclusion will be that he cannot be appointed to the post of Assistant Engineer in the aforesaid Department.

9. Before parting with this case, which we have concluded on only legal ground, we will like to observe on the working of the Department of Local Government and Rural Development, which to our mind cannot be considered desire-able, we cannot remain oblivious of the fact that the appellant has been equipped with grievance by allowing him to work against a post in NPS‑17, whereas substantively he belongs to NPS 11, by not holding the Departmental Examination in spite of lot of hue and cry and manning the said post with a very junior person although senior in his own tine. If the Government would have either promoted him in regular manner or filled the post by initial recruitment, this sort of heart burning and grievance would not have been provided to him. In view of the detailed analysis of the case we proceed to accept, the appeal, set aside the impugned order as being violative of the Rules. There will be no order as to costs. A.A. Appeal accepted.