1990 PLP 1425 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑The petitioner, an employee of the Respondent‑Council, seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the Federal Service Tribunal, dated 6‑4‑1989, whereby his appeal against the appointment of Chief Research Officer (B‑19), was dismissed.

2. The petitioner is an employee of the Council of Islamic Ideology. He challenged the appointment of respondent No. 2 by initial recruitment as Chief Research Officer. The appointment took place at a stage when the draft service rules had been approved by the Establishment Division and had been notified in the Gazette as having been approved by the President of Pakistan but in fact were not so approved. Those rules did not contain the post of Chief Research Officer. However, subsequently, after the recruitment of respondent No. 2, the rules duly approved by the President of Pakistan were notified in the Gazette dated 28th of March, 1985. They contained the post of Chief Research Officer in BPS 19 and the persons eligible for appointment to that post were shown to be the "Senior Research Officer, Senior Translation Officer (Grade 18)". The qualifications prescribed for the post were as follows:‑‑

"(1) 2nd Class MA. Arabic. Fazil from well‑known Darul Uloom. (2) Twelve years' experience in Islamic Research/Teaching/Legal Practice. (3) Preference will be given to those who possess Ph.D. in Arabic/Islamic Studies and or Law Degree with special knowledge of Fiqh."

3. In these rules, two things are relevant. One, that appointments made prior to the notification of these rules were deemed to be in order if the persons appointed as such, possessed the qualifications and experience prescribed in the rules in force at the time of their appointments. The second point to be noted is that in the schedule to the rules, experience of translation has been equated as research e.g. in the case of `Senior Translation Officer', "5 years experience of translation/research" is prescribed and for `Senior Research Officer' "5 years' experience in research/translation", is prescribed.

4. The case of the petitioner was that the service rendered by the respondent No. 2 as translator did not qualify as research experience and excluding that the respondent No. 2 was ineligible, like the petitioner and both being ineligible, the one who was less ineligible should have been selected. The petitioner considers that he was less ineligible than the respondent No. 2.

5. The Tribunal disposed` of the Objections as hereunder:‑‑ "The objections by the appellant to the selection of respondent No. 2 do not seem tenable. No doubt, he possessed the requisite academic qualifications but the respondent No. 2 also possessed the requisite academic qualifications. . The deficiency in the other qualifications pointed out by the appellant is that the respondent No. 2 had not put in 12 years service in Grade 17 and above, but he (the appellant) too suffered from the same disqualification. The respondent No. 2 was senior to the appellant in the length of service as the former was appointed by the Council as Research Assistant in November, 1972, whereas the latter joined the service of the Council as Research Assistant in September, 1975:"

6. Mr. M. Bilal, Advocate, the learned counsel for the petitioner has emphasized the. requirement of the rules about research, the meaning of research and the extent of deficiency on that score, in the qualifications of the respondent No. 2.

7. Research experience had not been defined in the rules applicable to the service. Therefore, there was a scope for the departmental construction to supply the omission. Ordinarily such construction or interpretation will prevail unless shown to be perverse or violative of some express provision or principle of law. That is not the case here. As pointed out, the rules at certain stages, for the appointment of Research Officers equated the experience in translation as experience in research. That could be a pointer in the matter of determining eligibility. As regards the process of selection itself is concerned, even on the hypothesis advanced by the petitioner, as between two ineligibles, who is more eligible is for the Departmental Promotion Committee to determine and no case for substitution of its judgment is made out. 1t is not the case of the petitioner that he was not considered alongwith the respondent No. 2.

8. As regards the ground of mala fide raised by an affidavit, the less said the better. It is extremely improper for a subordinate to make out a case of mala fide from his own utterances or comments on hearsay, all this happening between colleagues and other functionaries of the same institution. Such tendency is lethal to the institution and disputes the discipline and the dedication of the institution to the great cause for which it has been constitutionally established and entrenched.

9. We rind no merit in the Petition and the leave to appeal is refused. A.A./A‑714/S Leave refused.