2003 PLP (C (PLC(CS))

(a) by promotion or transfer in accordance with the provisions contained in Part‑II of these rules; and (b) by initial recruitment in accordance with the provisions contained in Part‑III of these rules. (2) The method of appointment, qualifications and other conditions applicable to a post shall be such as laid down by the Department concerned in consultation with the Services and General Administration Department and the Finance Department". Till date no method of appointment, qualifications and other conditions has been laid for the ministerial posts in the subordinate judiciary in accordance with sub‑rule (2) of rule 3 above, therefore, the pre‑existing rules available on the subject, so far as they are not inconsistent with the above‑named rules, are to be followed. The pre‑existing rules governing the service of ministerial officers of the subordinate judiciary are contained in Chapter‑18 Vol. 1 of High Court Rules and Orders. Rule VI whereof reads as under:‑ "Promotion.‑‑‑(1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted, for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades: Provided that permanent vacancies in the 75‑5‑125 grade shall be filled by the District and Sessions Judges in the following rotation:‑ (i) By selection on merit out of graduates who have at least two years experience in the work of the office; if there is no suitable graduate who fulfills this condition an 'outsider' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District and Sessions Judge. (ii) and (iii) By normal promotion in the office, i.e., the appointment of the next senior man whether graduate or non‑graduate subject to his fitness: Provided further that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi -permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a modification, the rotation should be restored as soon as possible. (2) In making promotions, preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Efficiency without honesty is not to be regarded as constituting a claim to promotion". From a plain reading of the above quoted rule‑VI, it is clear that the post of Reader to Civil Judge being higher grade of the ministerial establishment is to be tilled up by promotion on the basis of seniority‑cum‑fitness from among the officials of the lower grades, meaning thereby that these posts are promotion posts and not to be tilled up by initial recruitment. Thus the very method adopted for making the impugned appointments was against the law and rules on the subject.

6. The Government has framed a policy for making selection for promotion which is contained on page 401‑A Chapter‑2 of N.‑W.F.P. Establishment Code. Para‑2 whereof reads as under:‑ "In order to ensure a fair degree of selection, minimize the chances of discretion and favouritism, the Provincial Government have laid down the following criteria for selection for promotion vis‑a‑vis initial recruitment to the posts which are tilled by the Department concerned: (i) Criteria for Selection for Promotion. ‑‑‑Promotion to any post in a Grade below Grade 16 shall not be subject to any test. The suitability for candidates shall be determined on the basis of service record i.e. seniority‑cum‑fitness. (ii) Criteria of Selection for initial recruitment. This being the latest policy on the subject, it is clear that promotion from post in BPS‑2 to BPS‑16 has to be made from amongst the candidates of the concerned department on the basis of service record/seniority-cum‑ fitness.

7. So far as the contention of the learned District and Sessions Judge Bannu that the appellants lacked typing speed of 30 words per minute is concerned, it had got no force because nowhere such condition has been prescribed by any rules for promotion to the posts in question. It is not the case of respondent/authority that the appellants were either inefficient or lacking the requisite qualification or were suffering otherwise from any disability for promotion to the posts in question. It is further pointed out that by promoting Shah Daraz to the post of Assistant without any test and interview, the learned District and Sessions Judge Bannu has discriminated the appellants by subjecting them to a test/interview for promotion. Moreover, in other Districts i.e. Kohat and D.I. Khan, similar posts have been filled up by promotion from amongst the existing Junior Clerks/Moharrirs, therefore, on that score too, the appellants have been discriminated.

8. In the result, I allow all these appeals and set aside the impugned order of the learned District and Sessions Judge, Bannu. He is directed to till in the vacant positions of Senior Clerks/Reader through promotion. The appellants, if eligible, be considered for promotion to the posts in question. The fresh recruits/respondents who have also served the department for over a year may also be considered for any upcoming vacant posts at the bottom. S.A.K./709/P Appeal accepted.