1998 PLP 2254 (SCMR)

We may refer to Rule 9 of the Rules of 1989 which reads as follows:-- "9. Appointment on acting charge or current charge basis.

(1) Where the appointing authority considered it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned, who is otherwise eligible for promotion, does not possess the specified length of service the authority may appoint him to that post on acting charge basis. (2) So long as a civil servant holds the acting charge appointment, a civil servant junior to him should not be considered for regular promotion but may be appointed on acting charge basis to a higher post. (3) In the case of a post in basic pay scale-17 and above reserved under the rules to be filled in by initial recruitment, where the appointing authority is satisfied that no suitable officer drawing pay in the basic pay scale in which the post exists is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organisation, cadre service, as the case may be in excess of the promotion quota. (4) Acting charge appointment shall be against posts which are likely to fall vacant for period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time. (5) Appointment on acting charge basis shall be made on the recommendations of.the Departmental Promotion Committee or the Provincial Selection Board, as the case may be. (6) Acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis." A perusal of the above sub-rule (1) of Rule 9 indicates that the appointing authority may fill a post reserved under the rules for departmental promotion by appointing on acting charge basis the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion but does not possess the specified length of service. Whereas sub rule (2) of Rule 9 lays down that so long as a civil servant holds the acting charge appointment, a civil servant junior to him should not be considered for regular promotion but may be .appointed on acting charge basis to a higher post. It may be observed that it is not necessary to refer to the other sub-rules except sub-rule (6) of Rule 9 which lays down that acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis. The basic question is, as to whether the old qualification rules are applicable to the appellant or the new qualification rules. In this regard it may be pertinent to refer to the following cases: (i) Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P & E) Punjab and others (PLD 1988 SC 155). In the above case inter alia it was laid down that the Government is entitled to change the promotion rules and nobody has a vested right in the promotion. (ii) Habib Bank Limited and 2 others v. National Industrial Relations Commission and others (PLD 1988 SC 362). In the above case this Court while considering Industrial Relations Ordinance, 1969 and the Third Wage Commission Award held that the terms and conditions relatable to the prospects of promotion, do not form part of the service conditions from which promotion is to take place but they form part of the terms and conditions of the higher post to which promotion is to take place and therefore, eligibility for promotion is not a term and condition of the service of those seeking promotion. (iii) Government of N.-W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others (1990 SCMR 1321). It may be stated that the above case related to the N.-W.F.P. Health Services and the respondent was a doctor. It was held that the Rules applicable and the conditions required to be satisfied on the date of appointment are to be considered and not what were the requirements at an earlier date. (iv) Vida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 SC 701). In the above case it was held that the Government has the exclusive domain to decide whether any particular qualification would be considered sufficient for promotion from any particular grade to higher grade and Government is vested with exclusive domain to change such policy from time to time for nobody could claim any vested right in that policy. It was further held that the promotion of a civil servant is relatable to specific qualifications and the Government can exercise its discretion for future to provide that a particular qualification would not be considered sufficient for promotion so long as it did not violate the principles of equity before law. The law enunciated in the abovereferred cases was not disputed by Mr. Samdani. He candidly submitted that the Government has the power to change the qualification rules for a particular post. However, his submission was that in order to harmonise the construction of sub-rules (1) and (2) of Rule 9 of 1989 Rules, it is necessary to apply the old qualification rules otherwise the above sub-rules (1) and (2) would become redundant: In our view, the above contention is .not tenable. The new qualification rules came into force on 7-10-1984 and admittedly by that date the appellant had not put in required length of service of seven years in BPS-18 for being eligible for promotion to BPS-19 as an Associate Professor in Gynaecology. Even if we were to take the date 10-1-1979 when the appellant was appointed as a Senior Registrar in Gynaecology in BPS-18 as the date of commencement of the qualifying period of seven years, she became qualified on 9-1-1986. If we were to reckon the above period of seven years from 13-7-1980 when she was appointed as Assistant Professor in BPS-18, in that event she completed seven years period on 12-7-1987. It is thus evident that in any event on 7-10-1984 when the new qualification rules were enforced she was not eligible for promotion to BPS-19. She became eligible after completion of seven years period on or about 12-7-1980 when she completed seven years in BPS-18 as an Assistant Professor. It is not understandable on what principle of law it can be urged by the appellant that the old qualification rules should be applied to her while regularising her service. It may again be pointed out that sub-rule (6) of Rule 9 of 1989 Rules clearly provides that acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis. In other words, the appellant could not have claimed any preferential right on the basis of the factum that she held acting charge of the post of Associate Professor in BPS-19 since 29-5-1984. The question whether she had the requisite qualification would have to be considered on the expiry of seven years length of service and that would be done on the basis of new qualification rules. The case of Government of N.-W.F.P., Health and Social Welfare Department v. Sheikh Muzaffar Iqbal (1990 SCMR 1321) (supra) is applicable on all fours to the case in hand which has inter alia laid down as under:-- "The law has since then been well-established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date. The respondent was claiming a protection of the terms and conditions not of his service but that of the higher post. He could not have any vested right in respect of the terms and conditions of a post which was higher to the one which he was holding. The High Court was in error in considering that the terms and conditions of the appointment of the Professor were the terms and conditions of his appointment who was holding the next below post of Associate Professor. The rules read with Schedule will bear it out that the terms and conditions .related to a higher post with which the respondent could have some connection only on being promoted or. appointed and not prior to it. This matter has been reiterated in Muhammad Insha Ullah's case and subsequently in Habib Bank Limited and others v. National Industrial Relations Commission and others (Civil Appeal No. 316 of 1987: PLD 1988 SC 362). The respondent could claim no vested right nor could a change in the recruitment rules of the higher post can be said to operate against him retrospectively." We are unable to subscribe to Mr. Samdani's submission that the view which we are inclined to take would be in conflict with the rule of interpretation, namely, that the Court should place an interpretation which may harmonise various provisions of the rules. In our view, upon the enforcement of new qualification rules on 7-10-1984 the appellant had ceased to be otherwise eligible for promotion besides being short of length of service for the reason that she did not have publication of three research papers to her credit at the relevant time As a corollary it must follow that sub-rule (2) of Rule 9 of 1989 Rules also ceased to be applicable because of want of above eligibility on the part of the, appellant. However, in our view, it would have been just and proper if the appellant would have been regularised as an Associate Professor in BPS-19 with effect from a date in December, 1992 when she completed publication of three research papers instead of regularising with effect from 11-7-1993. One should not overlook the fact that when she took the above acting charge on 29-5-1984 as an Associate Professor in BPS-19 under the old qualification rules, there was no requirement of having publication of three, research papers which was introduced on 7-10-1984 by the new qualification rules. This fact demanded that the appellant should have been dealt with fairly. The upshot of the above discussion is that the appeal is dismissed with no order as to costs, with the observation that the respondent would consider appellant's case for substitution of date of regularisation as December, 1992 in place of 11-7-1993 for the foregoing reasons. M.B.A./S-75/S Appeal dismissed.