1997 PLP (C (PLC(CS))

ZIA MAHMOOD MIRZA, J.‑‑Petitioner, Secretary to the Government of the Punjab, Education Department has filed this petition to seek leave to appeal against the judgment of the Punjab Service Tribunal dated 4‑6‑1996 whereby service appeal of Mrs. Kishwar Aslam respondent No. l was allowed and it was directed that the case of her promotion with effect from 5‑1‑1995 "shall be processed as indicated in the preceding paragraph and subject to her fitness being confirmed she shall be promoted as Director Staff Development (BS‑20) to replace the existing incumbent of the post".

2. Facts relevant for the disposal of this petition, briefly stated, are that respondent No.1 was appointed as Lecturer (PES‑II) Collegiate Branch (Women Section) on 2‑11‑1962 and was confirmed as such with effect from 28‑1‑1996. She was later appointed as Subject Specialist (Class‑II) in the Education Extension Centre, Education Department on 1‑6‑1967. Subsequently, on selection by W.P., P.S.C., she was appointed as Subject Specialist in the then Junior Grade‑I (equivalent to Assistant Professor) in the Education Department. The said post was placed in NPS‑18, with effect from 1‑3‑1972. The post of Senior Subject Specialist held by respondent No. l was later upgraded to BS‑19 as personal to her with effect from 17‑6‑1989 which was subsequently re‑designated to that of Additional Director (BS‑19) vide Government Notification dated 27‑2‑1992. It appears that the Education Extension Centre was renamed/re‑designated as Directorate of Staff Development with effect from 1‑7‑1993 vide Education Department's Notification dated 24‑8‑1993. Respondent No. l was promoted as Additional Director, Staff Development with effect from 3‑2‑1994 vide notification of even date.

3. It appears that the post of Director, Staff Development (BS‑20) fell vacant on retirement of the incumbent of that post on 4‑1‑1995. According to the retirement rules of Education Extension Centre re‑designated as Staff Development, post of the Director (BS‑20) was to be filled by promotion or by transfer. Respondent No. 1 is stated to have made a representation to the Chief Minister Punjab on 18‑12‑1994 requesting that her case for promotion as Director Staff Development (BS‑20) be submitted to the Departmental Promotion Committee. She made similar representation to the Secretary, Education Department, Government of the Punjab on 16‑1‑1995. No action appears to have been taken on her representations and instead Doctor Sardar Muhammad respondent No.2 herein who at the relevant time was Director General Public Libraries ‑was transferred and posted as Director, the Directorate of Staff Development, Punjab against the existing vacancy vide Notification; dated 31st January, 1995. Respondent No.1 challenged this Notification in a service appeal filed before the Punjab Service Tribunal on 1‑3‑1995. It appears that during the pendency of the said appeal, respondent No‑3 an officer of Education Department was transferred and posted as Director Staff Development vide Notification dated 1‑10‑1995.

4. Case of respondent No. 1 before the Service Tribunal was that as per the Rules, Education Extension Centre was a distinct "Functional Unit" and that the post of the Director in that Functional Unit could only be filled up by promotion of the next senior‑most officer namely the Additional Director and that the alternate method of recruitment by transfer could only be resorted to if the Additional Director was found to be not eligible for promotion. Her contention before the Tribunal was that since no qualifications or experience was prescribed for promotion as Director, she could not have been treated as ineligible for promotion as Director. Her case for promotion should, therefore, have been placed before the Department Committee/Selection Board with effect from the date the post first fell vacant i.e. from 4‑1‑1995. It was also argued before the Service Tribunal that the posting of respondents Nos.2 and 3 as Director, Staff Development was merely by routine transfer and not by way of transfer, as contemplated in the alternative method of recruitment in the relevant rules.

5. Learned Service Tribunal took the view that according to the relevant recruitment Rules, re‑course to the first option namely "by promotion" has to be made before resorting to the alternative method of appointment viz "by transfer" and that for making appointment, whether by promotion or by transfer, recommendation of the appropriate Committee or Board was an essential pre‑requisite. It was further held that the appointment of respondents Nos. 2 and 3 "could not be treated to have been made by transfer' as even the condition at (ii) above was not fulfilled. Even otherwise, since the post had become vacant on 4‑1‑1995, the appellant had a genuine claim to be considered for promotion under the existing rules." It was finally held by the Service Tribunal that respondent No. l was entitled to be considered for promotion as Director, Staff Development with effect from 5‑1‑1995 i.e. the date the post fell vacant for the first time since promulgation of the existing rules. It was accordingly, directed that her case for determining her suitability for promotion as Director, Staff Development should be placed before "the appropriate committee or Board" within a period of one month and subject to her fitness being confirmed by such committee or Board, her promotion should be notified within 2 months positively. With these findings/observations appeal of respondent No. l was allowed by the Service Tribunal with the direction that the impugned orders shall be treated only as posting orders and case of promotion of respondent No. l with effect from 5‑1‑1995 shall be processed and subject to her fitness being confirmed, she shall be promoted as Director Staff Development (BS‑20) to replace the existing incumbent of the post.

6. Learned counsel appearing in support of this petition has submitted that respondent's appeal before the Service Tribunal was not competent as she had not filed any appeal/representation against the impugned orders before the higher departmental authorities. We find that the departmental authorities in their parawise comments submitted before the Service Tribunal took no such objection and even otherwise, as pointed out by the counsel for respondent No. 1, order impugned before the Service Tribunal having been passed by the Governor, no appeal/representation could possibly be made in the hierarchy of the Government. It was so held in the case of Ali Nawaz Chowhan v. Governor PLD 1992 SC

413. In the circumstances, the objection raised by the learned counsel for the petitioner is repelled.

7. On merits, learned counsel for the petitioner quite fairly conceded that Education Extension Service re‑designated as Directorate of Staff Development was separate and Distinct Functional Unit. He has also not denied that according to the Education Extension Centre Recruitment Rules, 1993, the post of Director, Staff Development was to be filled "By promotion or by transfer". He, however, sought to contend that the word "or" between the words "By promotion" and "by transfer" in the column relating to the method of recruitment should be read as "and". We are not inclined to accept this interpretation for which there is no valid basis. The order of priority for the method of recruitment is to be determined from the order in which the two methods have been prescribed. We are inclined to accept the view taken by the Service Tribunal that recruitment/appointment by transfer is an alternative method of recruitment, which is to be resorted to only if no candidate is eligible for promotion. Promotion appears to be the first and preferential method of the recruitment. Learned Tribunal was also right in holding that for making an appointment whether by promotion or by transfer, recommendations of the "appropriate committee/Board" constituted an essential pre‑requisite. It is not denied that the appointments of respondents Nos.2 and 3 by transfer were not made on the recommendations of the appropriate committee or Board. In the aforesaid view of the matter, no exception can be taken to the impugned decision of the Service Tribunal holding that respondent No. l was entitled to be considered for promotion as Director, Staff Development with effect from the date the said post fell vacant and that on her fitness being confirmed, "she shall be promoted as Director, Staff Development (BS‑20) to replace the existing incumbent of the post. This petition is, accordingly, dismissed and the leave to appeal sought is refused. A.A./S‑1095/S Petition dismissed.