2011 PLC (C (PLP)

NASIR-UL-MULK, J.

This appeal by leave of the Court arises from the judgment of the Lahore High Court, dated 29-4-2008 dismissing the appellant's intra court appeal against the judgment of the Judge-in-Chambers whereby the appellant's Writ Petition No.9637 was disallowed.

2. The appellant is serving as Divisional Director in the Local Fund Audit Department, Government of Punjab, and in the writ petition filed before the Lahore High Court he had assailed the promotion of respondent No.4, Rab Nawaz Khan, to the post of Director Local Government Fund Audit and claimed the same office for himself. The grounds on which leave to appeal was granted are mentioned in the leave granting order dated 4-12-2008, which are reproduced as under:

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3. Learned counsel for the petitioner, while referring to the schedule attached to Notification No.S.O.R.III-I-6/72 dated 21-11-1981, has submitted that post of Provincial Director could only be filled "By promotion on the basis of selection on merit from amongst persons holding posts of Divisional Director with 12 years service in grade 17 and above and as the relevant time the contesting respondent was posted as Deputy Secretary (Monitoring), Finance Department, Government of Punjab and was not a Divisional Director, therefore, he was not eligible to be promoted to the said post of Provincial Director (PBS-19) notwithstanding the fact that he at one time held post of Divisional Director. He has added that the said pivotal question was not at all adverted to by the learned Division Bench of the Lahore High Court learned counsel for the contesting respondent reiterated the contentions recorded in the impugned order and also referred to Clause 3.13 of Civil Service Rules, (V-I) to contend that respondent No.4 could be appointed to the said post. Learned Law Officer has supported the impugned order.

4. After hearing the learned counsel, we are persuaded to grant leave to appeal to the petitioner inter alia to consider impact and effect of notification dated 30-5-2005, in particular the schedule attached thereto, and as to whether the said notification is mandatory or regulatory/directory."

3. Mr. Aftab Gul, Advocate Supreme Court appeared for the appellant, Mr. Mudassar Khalid Abbasi, Assistant Advocate-General, Punjab, represented respondents Nos.1 to 3 and Mr. Abdul Rahim Bhatti, Advocate Supreme Court appeared for respondent No.4.

4. The learned counsel for the appellant reiterated his arguments submitted by him at the time of granting leave. Referring to the Local Fund Audit Rules, 1981 and the schedule appended thereto, he pointed .out that though the Local Fund Audit was shown as a Functional Unit of the Finance Department but the same was an independent attached department. That the eligibility for the appointment of the Provincial Director in the Local Fund Audit includes, inter alia, the holding of a post of Divisional Director in the Unit. The learned counsel pointed out that respondent No.4 at the relevant time was serving as Deputy Secretary in the Finance Department and, therefore, he was neither serving irk the Local Fund Audit Unit nor posted as a Divisional Director at .the time of his promotion. On both counts, it was contended that the promotion of respondent No.4 was violative of the Rules. Elaborating further, the learned counsel argued that the phrase 'holding post' for Divisional Director as eligibility requirement, means actually holding of ,such a post in the Department at the time of promotion.

5. Responding to the above contentions, the learned counsel representing respondent No.4, contended that the respondent was appointed in the Local Fund Audit Department on the recommendation of the Public Service Commission where he was in the year 1995, promoted as Divisional Director. That it was in the year 2003 when he was by transfer posted in the Finance Department of the Government of Punjab. That notwithstanding such transfer his parent department remained the Local Fund Audit where he had the substantial post of Divisional Director. He, therefore, argued that he remained employee of the Local Fund Audit and his mere temporary transfer/posting could not deprive him of his seniority or opportunity for promotion in his parent department. In this context, the learned counsel referred to section 9 of the Punjab Civil Servants Rules, which empowered the Provincial Government to transfer a civil servant to serve in any department. The learned counsel referred to a list of 31 employees of the Local Fund Audit Department who were promoted while serving in other departments. The learned counsel further submitted that a practice consistently followed by the Department attains a force of a rule of law from which the Department cannot deviate. Reliance was placed upon Asian Food Industries Ltd. v. Pakistan 1985 SCMR 1753 and Province of Punjab v. Shah Muhammad Chaudhry 1997 PLC (C.S.) 412.

6. Mr. Mudasser 'Khalid Abbasi, learned Assistant Advocate-General, Punjab, while representing respondents Nos.1 to 3 argued that the word 'holding' shall be interpreted keeping in view the circumstances in that a number of employees of the Local Fund Audit Department serve in other departments and, therefore, it will be unfair and inequitable to deprive such employees of chance of promotion in their parent department during such service.

7. The bone of contention between the parties is the construction, to be laid down upon the rule in the notification of 21-11-1981 issued by the Government of the Punjab, Services General Administration and Information Department, called the Punjab Local Fund Audit, Department Services Rules, 1981, for promotion to the post of Provincial Director in the Local Fund Audit Department. The rule is incorporated in the schedule to the notification and at the relevant serial number, the name of the Department is mentioned, as Finance Department and the `Local Fund Audit' appears in the column under the head of `Functional Unit'. The rule in question comes under the head "Method of Recruitment" which reads as follows:

"By promotion on the basis of selection on merit from amongst persons holding. posts of Divisional Director with 12 years service in grade 17 and above."

8. Admittedly, respondent No.4's initial induction in service, on the recommendations of the Public Service Commission, was in the Local Fund Audit Department as Assistant Director in the year 1984. It was in the same department that he was promoted as Divisional Director on 20-2-1995 and was later transferred to the Finance Department in the year 2003, where he was serving as Deputy Secretary (Monitoring) when he was promoted as Provincial Director by notification dated 30-5-2005, impugned by the appellant in the present appeal. Thus, undoubtedly, respondent No.4's parent department remained the Local Fund Audit Department and was posted on transfer in the Finance Department.

9. The main controversy revolves around the meaning to be assigned to the phrase "holding post of Divisional Director", appearing in the rule reproduced above; as to whether or not holding means actual holding at the time of promotion. In the other words, if the interpretation, canvassed by the learned counsel for the appellant, is accepted, the promotion to the post of Provincial Director in the Department will be restricted to those who are actually serving in the Department at the relevant time, to the exclusion of those who are serving on deputation or transfer in the other departments.

10. The terms and conditions of service of respondent No.4 are to be regulated in accordance with Service Rules of the Local Fund Audit Department, where he still holds a substantial post, and was temporarily serving on transfer in the Finance Department. At the time of his transfer, he was holding the post of Divisional Director in his parent department. His seniority is maintained in his parent department and his name still appears in the seniority list of 2004 of Divisional Director of the Local Fund Audit Department, even when he was serving in the Financial Department. His post of Divisional Director in his parent department remained vacant. The promotion of respondent No.4 can only be made within his parent department and obviously not in the department to which he had been transferred temporarily. On the other hand, a civil servant from another department transferred and posted as Divisional Director in the Local Fund Audit Department, would also not be entitled to be considered for promotion in the Department for the post of Provincial Director, although he may literally fall within the scope of the 1981 Rules. We have been informed that by the very nature of the work of this Department about half of its officials serve in other departments at any given time. To substantiate this position, respondents Nos.1-3 in their concise statement have provided a list of 31 officers of the Department, who had since the year 1983 been promoted .while working on deputation in other government departments. We are of the view that the Department has been making these promotions on the correct interpretations of the Rules as we are of the considered opinion that in view of the above discussion, the word "holding post of Divisional Director" appearing in the said Rules means the holding of a substantial post of Divisional Director in the Department. In this view of the matter, respondent No.4 was eligible to be considered for promotion as Provincial Director.

11. For the reasons afore stated, no case has been made out to successfully assail the promotion of respondent No.4 as Provincial Director in the Department of the Local Fund Audit, Government' of Punjab. Resultantly, this appeal is dismissed. The parties are left to bear their own costs. M.H./S-49/SC Appeal dismissed.