1999 PLP (C (PLC(CS))

"Appointment by promotion or transfer to posts in various grades shall be made on the recommendations of appropriate Committee or Board. " After setting aside the order impugned before it, the Service Tribunal ordered that the post of Principal, occupied by the appellant, shall be referred to the Selection Board. It has further been directed that respondent? No. l shall also be considered for the said post.

5. Arguing the case on behalf of appellant, it was vehemently contended by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, that the appellant like respondent No.1 is already in B‑19 as an Associate Professor and the post of Principal is also in the same pay scale and, therefore, sub‑rule (1) of rule 9, mentioned above, is not applicable in the case because that sub‑rule only applies when there is a change of grade. It is contended by the learned counsel that according to Azad Kashmir Education Service Class‑I (Collegiate Branch) Women's Selection Rules, 1974, the post of Associate Professor is a selection post and the appellant was appointed as Associate Professor B‑19 on the basis of recommendations of the Selection Board. He submitted that the Service Tribunal did not consider the Departmental Rules and, thus, fell in error.

6. Sardar Rafique Mahmood Khan, the learned counsel for respondent No. 1, strenuously contended that the method of recruitment for the post of Principal is as follows:‑? ?"1.?????? Principal/Vice‑Principal ??????????????????????? (i) 30% by initial recruitment. ??????????????????????? (ii) 70 % by promotion on the basis of selection on merit from amongst the Assistant Professors/ Principals of Inter Colleges/Deputy Directors (male and female respectively) with 12 years service in B‑17 and above." The learned counsel submitted that the provision reproduced above as well as sub‑rule (i) of rule 9, mentioned above, both show without any manner of doubt that the post of Principal, Degree College is a selection post. He contended that the Service Tribunal was, therefore, right in upsetting the appointment on regular basis of the appellant.

7. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The only point that falls for determination in the instant case is that what would be the method of recruitment to the post of Principal as provided under the relevant rules. The relevant amended rule called the Azad Kashmir Education Service Class‑I (Collegiate Branch) Women's Selection Rules, 1974, reads as under:‑‑ "l. Principal/Vice‑Principal (i)??? 30% by initial recruitment. (ii) 70 % by promotion on the basis of selection on merit from amongst the Assistant Professors/Principals of Inter Colleges/Deputy Directors (male and female respectively) with 12 years service in B‑17 and above." NOTE:‑‑ No posts of Associate Professors exist until such time there is need to create these posts, selection shall be made from amongst Principals of Intermediate College/Assistant Professors. It is laid down in the note reproduced above that at the time when the Rules ‑were framed there were no posts of Associate Professors so the Assistant Professors were incorporated in the relevant Rules. In light of the note it is clear that after the creation of the posts of Associate Professors if the post of Principal is to be tilled in it has to be from Associate Professors on the recommendations of Selection Board. Respondent No.l was entitled to be considered by the Board because she is senior to the appellant. The contention raised by the (earned counsel for the appellant that both the appellant and respondent No. 1, being in the same pay scale, the appointment by transfer of the appellant as Principal, shall not adversely affect the rights of respondent No.1, on careful consideration is found to have no substance, as the appellant was appointed as Principal on regular basis. In the service hierarchy it is not only the pay scale that matters but it is the office, the privileges, the powers and the overall control and administration of the institution which really matters and also the position that one enjoys by becoming the head of the institution. The law on the subject is clear which has been violated by the Government in making the appointment of appellant.

8. From the record it is established that the appellant is junior to respondent No. l according to the seniority list as appended with the appeal. The seniority list was challenged by the present appellant up to this Court but she failed to establish her claim. In accordance with the relevant rules even in case of officiating or acting charge basis the senior is to be given preference. Respondent No. l being senior was not given the charge so she submitted the review petition before the pro forma respondent well within time but the same remained pending for a considerable time and without deciding it the appellant was appointed permanently as Principal. According to rules 9 and 10 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, appointment by promotion or transfer is also to be made to the higher post on the basis of recommendations of Selection Board. In the instant case the post of Principal, Degree College being selection grade post could not have been filled in by any other method except by promotion on the recommendations of the Selection Board or by direct recruitment. In our view the Service Tribunal rightly concluded the matter by, directing the authorities to refer the matter to the Selection Board for all the eligible candidates.

9. After hearing the learned counsel for the parties, we felt it advised to seek an explanation from the Secretary Education on 15‑10‑1998, as to what is the practice while appointing the Principals; therefore, Secretary Education was directed to submit his report in respect of all the Principals of Degree Colleges for Women stating whether they have been appointed through Selection Board or not. The report was submitted by the Secretary Education on 30‑10‑1998, wherein it was stated that prior to 1990 this was a common practice to appoint a Principal (Male/Female) through Selection Board. This procedure, however, was usually followed by the Education Department while selecting the Principals for male Colleges. Nevertheless this criterion due to various reasons was not strictly maintained where selection was to be made from female institutions. In our view the practice followed by the Government cannot bypass the relevant rules as we have already reached the conclusion that the appointment to the post of Principal is made on the basis of selection on merit on the recommendations of Selection Board.

10. In the aforesaid view of the matter, finding no force in this appeal, it is hereby dismissed without any order as to costs. However, the Government is directed to send the matter of appointment of the appellant and respondent No. l and any other eligible candidate to the Selection Board within a period of two months from the date of pronouncement of this judgment, so that it may decide the matter in accordance with law. Since the appellant at the present moment is holding the post of Principal, she may continue as such till the matter is referred to the Selection Board within the above stated stipulated period. H.B.T./363/SC (A J & K)??????????????????????????????????????????????????????? ??????????? Appeal dismissed.