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Case No. 732/101 of 1984, decided on 18th February, 1985

Per S. Abdul Jabber Khan, Chairman, Abdul Hamid Chaudhary, Member agreeing

[Mr. Faiz Karim, Member (contra)]‑‑--

‑‑‑S. 21‑‑Promotion/selection by appointing authority‑‑Orders of fitness/ promotion issued by appointing authority, held, would be final‑ Next higher authorities would not be empowered to review or set aside such order of appointing authority.

‑‑S.4 Appellate jurisdiction, exercise of‑‑Departmental Promotion/ Selection Committee‑‑Constitution of‑‑Such committee being constituted one had determined suitability or otherwise of large number of civil servants of same Department‑‑‑ Where recommendation of same Committee recorded in same meeting, on same date were acceptable to higher authority, in respect of majority of candidates, exception in respect of other candidates could not be taken on basis of defect in constitution of such Committee‑‑Order of higher authority reviewing order of appointing authority, held, would be void and illegal‑‑Order of appointment of civil servant restored with back benefits.

Per Faiz Karim, Member‑‑[Minority view]‑‑ .

(c) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑--

‑‑‑Rr. 17 & 22‑‑Appointment of civil servant‑‑Mode of‑‑Initial appointment of civil servant, held, is to be made after advertisement of vacancies in newspapers on basis of examination or test‑ Appointment made in derogation to such mode by Selection Committee would be in absolute disregard of rules and thus not sustainable‑‑However, Higher authority would not be competent to cancel orders of promotion/ appointment approved by Selection Committee and the Appointing Authority.

Noor Muhammad Khan Chandia and Syed Jamshed Ali for Appellant.

A.G. Humayun, District Attorney for Respondents.

.‑‑Ch. Munir Ahmed has made this 'appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Director Food, Punjab, Lahore, Deputy Director Food, Bahawalpur Region, Bahawalpur and the Secretary to Government of the Punjab, Food Department, Lahore as respondents.

2. By virtue of this appeal, the appellant has prayed that the impugned orders, dated 24‑4‑1984 and 12‑5‑1984, passed by the respondents Nos. 2 and 1, respectively be set aside.

3. Brief facts of the case are that the appellant was appointed as Food grain Supervisor on ad hoc basis. While he was still working in this capacity, he applied for the post of Assistant Food Controller against direct quota vacancy. His case was placed before the Departmental. Promotion/Selection Committee in its meeting held on 12‑2‑1984. This meeting was attended by the Deputy Director Food, Bahawalpur Region, Bahawalpur (Mr. Nur Ahmad Mian as Chairman), Mr. Jamil Ahmed Siddiqui, Acting Assistant Director Food, Directorate of Food Punjab, Lahore as a Member and Mr. Abdul Qayyum Khan Lashari, District Food Controller, Bahawalpur as a Member. The Committee took up the case of the appellant and recorded their recommendations as follows:‑--

"AD HOC ASSISTANT FOOD CONTROLLER

He was a F.G.I. He was appointed as A.F.C. on ad hoc basis w.e.f. 15‑1‑1983. His service record is satisfactory. There is no recovery/ departmental enquiry against him at present. He is a graduate and has 9 years' experience of the field job of the Department. He may be confirmed as A.F.C. against a direct quota vacancy.

He was appointed as A.F.C. on ad hoc basis on ..He is graduate and his only one A.C.R. for the year 1983 is satisfactory. He may be confirmed as A.F.C. against the direct quota vacancy.

He is at present appointed as F.G.I on ad hoc basis. He has applied for the post of A.F.C. against the direct quota vacancy. He has been confirmed in this meeting as F.G.I. against direct quota vacancy on merit. His service record is excellent and may be considered and approved as A.F.C. whenever,

a vacancy occurs.

(Sd.)

(Nur Ahmed Mian),

Deputy Director Food, BWP.

(Chairman)

(Sd.) (Sd.)

(Jamil Ahmed Siddiqui) (Abdul Qayyum Khan

Acting Assistant Director Food‑I, Lashari),

Directorate of Food, Punjab, District Food Controller,

Lahore (Member) Bahawalpur (Member)"

On the basis of his selection by the Selection Committee the Appointing Authority i.e. Deputy Director Food, Bahawalpur Region, Bahawalpur, appointed the appellant as A.F.C. vide his order, dated 17‑4‑1984 on the following terms (Annexure 'A'):‑

"Consequent upon your selection by the Departmental......recruitment issued or approved for issue by the Departmental Promotion Committee, by the Director Food, Punjab vide aforesaid order, the Deputy Director Food, Bahawalpur Region, Bahawalpur (respondent No. l), reverted the appellant to his original position as Foodgrain Inspector w.e.f. 2‑5‑1984; vide his order, dated 12‑5‑1984. The appellant filed an appeal, dated 27‑5‑1984 to the respondent No.3, Secretary to Government of the Punjab, Food Department which is still pending. After waiting for statutory period of 90 days, the appellant has filed this appeal on 12‑9‑1984 (within 30 days of expiry of 90 days). Hence this appeal."

4. We have heard the parties i.e. Mr. Noor Muhammad Khan Chandia and Syed Jamshed Ali, Advocates on behalf of the appellant and Mr. A.G. Humayun, District Attorney assisted by, the representative of the Food Department, Punjab, on behalf of the respondents.

5. The learned counsel for the appellant has argued that the impugned order, dated 24‑4‑1984, passed by the Director Food, Punjab, Lahore respondent No. 2, is incompetent because the same has been issued without hearing the appellant and as such this is in violation of principle of natural justice. He has submitted that had the appellant been given any opportunity, he would have convinced the Director, Food, Punjab that his appointment was proper, in accordance with the Rules and Regulations, quota and no irregularity was committed by the Departmental Promotion /Selection Committee/ Appointing Authority. He has also relied upon section 21 of the Punjab Civil Servants Act, 1974, and has pointed out that the orders of appointing authority are final and not subject to the scrutiny by the next higher authority.

6. On the other hand, the learned District Attorney has relied in extenso upon the parawise comments filed by the respondents. He has submitted that since the appointments of the appellant and others were found to be irregular, the Director Food, Punjab had correctly set aside the appointment orders. He has further pointed out that the Departmental Selection Committee/ Appointing Authority had not observed the rule:: and regulations with regard to quota as well as other terms and conditions, which vitiated his appointment. He has thus, submitted that the impugned order, dated 24‑4‑1984 of the Director, Food is fully competent and justified.

7. We have given our anxious thought to the arguments of the parties. The decision of the present case hinges on the following four issues:‑

(1) Whether the Director Food, Punjab was competent to interfere with the order of appointment made by the competent authority is consultation with the Departmental Selection Committee

(2) Whether the Director, Food, Punjab had the jurisdiction to substitute his opinion for the recommendations made by the Departmental Selection Committee in regard to the fitness of the appellant for appointment as A.F.C.

(3) Whether the appellant was promoted or directly appointed as A.F.C.

(4) Whether any irregularity in disregard of Rules and Regulations was at all committed by the Selection Committee/ Competent Authority

We have examined the relevant record of this case and have reached the conclusions:‑

ISSUE No.l.‑‑We find that the Director Food, Punjab was not competent to interfere in the matter of such appointments and promotions for which the Deputy Director, Food Bahawalpur was the appointing authority. In this respect, we have carefully perused section 21 of the Punjab Civil Servants Act, 1974 which is reproduced below:‑‑

"(21) (1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as may otherwise be prescribed, be made within sixty days of the communication to him of such order;

(2) Where no provision for appeal or review exists in the rules, in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order:

Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."

The proviso added to this section by the Legislature makes intention of the Legislature quite clear that the scheme of the Act is that the Selection or Promotion Committee as the case may be and the appointing authority are the final judges in the matter of the determination of fitness of person for the appointments and promotions. It was for this reason that the Act did not provide any representation or appeal in the matter of appointment or promotion to ‑the next higher authorities although such representation was provided in subsection (2) of that section in all other matters. Therefore, bare reading of the substantive provisions of this section gives irresistible conclusion that the orders of fitness /promotion issued by the appointing authority are final and the next higher authorities have been given powers to review or to set aside the order of appointing authorities. Therefore, in this view of the matter of impugned order, dated 24‑4‑1984 of the Director Food, Punjab is not competent.

ISSUE No. 2.‑‑This is an allied issue. We have already given our findings in Issue No. 1 that according to the section 21 of the Punjab Civil Servants Act, 1974, the powers of determining fitness or otherwise of a candidate for appointment vest exclusively in the Selection Committee/Promotion Committee and the Appointing Authority, as no appeal or representation has been provided against the judgment of the Selection Committee. This only means that their judgment in this matter is final. We have gone into the recommendations of the Selection Committee in respect of the appellant and find that their finding is well‑reasoned because they have selected him on the basis of his excellent service record and recommended him for appointment as A.F.C. against the direct recruitment quota vacancy. Since the recommendations were duly accepted by the Appointing Authority vii. Deputy Director, Food, the selection became final and was not subject to review or scrutiny by the Director Food, Punjab suo Motu or even on a representation.

ISSUE No. 3.‑‑We have carefully examined the recommendations of the Selection Committee as well as the order of appointment, dated 17‑4‑1984 for the appointment of the appellant as A.F.C. The order itself makes it quite clear that it was an order of 'appointment' and not promotion. Even the Promotion /Selection Committee had not recommended him for promotion but for 'appointment' as A.F.C. However, the Director Food, Punjab, has misinterpreted the recommendations. He has observed in para. 1 of the impugned order, dated 24‑4‑1984 that Messrs Munir Ahmad Shah and Munir Ahmad Chaudhry, Foodgrain Inspectors, have been promoted out of turn as Assistant Food Controllers. It is, therefore, quite clear that the Director Food, Punjab has not cared to examine the relevant record in order to ascertain the correct nature and status of the appellant's appointment as A.F.C. Therefore, the impugned order, dated 24‑4‑1984 is defective and misconceived on the material issue of the nature of the appellant's appointment.

ISSUE No. 4.‑‑We have noticed from the impugned order, dated 24‑4‑1984 that the Director Food, Punjab has made a general sweeping type of observations regarding three officials that their appointments/ promotions were in disregard to rules and regulations and the quota reserved for promotions/ direct recruitment, etc. It appears that he did not apply his mind to all the provisions of the rules so as to pinpoint, as to which of the provisions of the relevant service rules were disregarded by the Selection Committee or the Appointing Authority. He has not even mentioned the total number of posts and made any calculations with regard to respective share of the direct recruits and promotees. Therefore, in the absence of any such specific findings by the Director Food, Punjab his observations, are not sustainable.

8. In the impugned order, dated 24:4‑1984, the Director Food, Punjab, Lahore has also made observations that the promotion of the appellant was without ensuring the proper constitution of the Departmental Promotion Committee, without‑ undertaking the prescribed procedure for appointment i.e. invitation of applications, tests, etc. and without considering fitness/ seniority of the Foodgrain Inspectors. We find that these observations of the Director Food, Punjab are not in accordance with the fact of the case. We have perused the minutes of the Departmental Promotion/ Selection Committee regarding the selection of the appellant as Assistant‑Food Controller which have been reproduced in para. 3 of this judgment. These minutes clearly show that the Committee was; a constituted one and there is no defect in its constitution. Moreover, the Director Food, Punjab has also not mentioned any specific defects in the constitution of the Committee. What we find is that his very Committee had determined the suitability or otherwise of a large number of other civil servants of the same Department but the Director Food, Punjab has not taken any exception to the recommendations of the said Committee in regard to those civil servants. Therefore, when the recommendations of the same Committee recorded in the same meeting on the same date are acceptable to 'the Director in respect of other officials of the same rank/cadre, then there is no reason why the recommendations are not valid in respect of the three officials including appellant. Moreover, the Committee has adopted the prescribed procedure and determined the fitness of the officials concerned including the appellant after discussing individual merits, record, qualifications, etc. of each candidate.

9. The result of the above analysis of the case is that the impugned order, dated 24‑4‑1984 of respondent No. 2, is incompetent, unjust and misconceived. The consequential order, dated 12‑5‑1984 passed by the Deputy Director, Food, Punjab, Bahawalpur Region, as a result of aforesaid order, dated 24‑4‑1984, is equally illegal and void. We, therefore, accept the appeal set aside the impugned orders, dated 24‑4‑1984 and 12‑5‑1984 and restore the order of appointment as Assistant Food Controller of the appellant issued by the Deputy Director, Food, Bahawalpur Region, Bahawalpur vide Memo. No. FE‑84‑42/394, dated 17‑4‑1984, with back benefits.

There are no order as to costs.

DISSENTING JUDGMENT

.‑‑I had the advantage of the perusal of the judgment recorded and signed by Mr. Justice (Retd.) Sardar Abdul Jabbar Khan, learned Chairman and signed by Mr. Abdul Hamid Chaudhrym learned Member of the Tribunal.

2. I agree that the questioned appointment of the appellant Munir Ahmad was not a case of departmental promotion. I also agree that the Director Food, Punjab was not competent to issue the impugned order, dated 24‑4‑1984 regarding cancellation/demotion/reversion of the three officials of the Food Department namely, Messrs Munir Ahmad Shah, Munir Ahmad (appellant) and Jamshed Akhtar who were appointed as Assistant Food Controllers. However, I do not agree with the judgment that the appellant was 'directly appointed' as Assistant Food Controller as determined under issue No. 3 page 7 of the judgment. It may be appreciated from the minutes of the Selection Committee reproduced ‑in para. 3 page 2 of the judgment under the caption 'Ad hoc Assistant Food Controller', that the inference is that it was a case of ad hoc appointment. Furthermore, so far as the appellant was concerned he was confirmed by the Selection Committee as Foodgrains Inspector against direct quota vacancy and recommended for consideration and approval as A . F. C . whenever a vacancy occurs. It is understood that there was no vacancy available concerning the appellant for appointment as A . F. C . during the meeting of the Selection Committee. As such the Selection Committee went out of the way to make the said anticipatory recommendation in favour of the appellant. Accordingly even if for the argument sake without conceding the appointment of the appellant is treated as direct (initial) appointment then too it falls short of the prescribed legal requirements.

3. The Government has prescribed rules and instructions concerning the selections by promotions, by ad hoc appointments, and initial appointment (direct appointment). In this regard, I may in the first instance cite West Pakistan Food Department District Ministerial Establishment Recruitment Rules, 1963 published vide Notification No. SOXIX‑1‑2(a)/59, dated 31‑1‑1963. Secondly, the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 of the SGA&I Department published vide Notification No. SOR‑III‑1‑5/74, dated 22‑8‑1974 are applicable to all the civil servants including the appellant. Lastly, there are the directions of the Government of Punjab regarding setting of the Selection Committees/ Boards for the post in Grades 1‑15 in various Departments published vide circular Letter No. SOR‑III‑6/73, dated 2‑4‑1975, communicated by the Director Food, Punjab vide letter dated 25‑4‑1981 to all the Deputy Directors Food, including Bahawalpur Region alongwith the copy of notification, dated 13‑3‑1980. Similarly, Director Food, Punjab issued directions vide letter, dated 19‑3‑1981 to all the Deputy Directors for filling in the vacancies after obtaining the N.O.Cs. and advertisement, and through employment exchange in case of direct appointment.

4. The Selection Committee has to strictly follow and implement the rules and instructions and notifications cited above. In case of initial appointment vide rule 17 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the initial appointment of the appellant and two others officials was to be made after advertisement of the vacancies in the newspapers, on basis of examination or test which is not the case. It would be pertinent to point out that even in case of 'Ad hoc Appointment' the advertisement as well as merit determination is necessary vide rule 22 of the said rules. Besides that the Selection Committee under circular letter, dated 2‑4‑1975 cited above has to grade the applications on merits of the contesting candidates on basis of 60 marks for prescribed qualifications, 20 marks for higher qualifications, 10 marks for experience and 10 marks for interview. I may state that under the notification, dated 31‑1‑1963 cited above the minimum qualification for the A.F.C. is Intermediate. He is to be graded under circular letter, dated 2‑4‑1975 and its Annexure 'I' in the manner that their marks to be worked out according to their qualifications and divisions, higher qualifications and experience and the interview as detailed above which is not the case of the appellant.

5. The Deputy Director, Food and the Selection Committee of the Bahawalpur Region conducted and acted in the absolute disregard of the above rules and the instructions. The Director Food, Punjab has rightly observed in his impugned order, dated 24‑4‑1984 that appointment of the appellant and two other officials were:

(i) in disregard to rules and regulation of the quota reserved for promotion /direct recruitment,

(ii) without considering the fitness/ seniority of the Food-grains Inspectors, and

(iii) without undergoing the prescribed procedure for appointment i.e. invitation of applications, test, interview, etc.

However, as already stated he was not competent to cancel orders of promotions /recruitment, approved/issued by the Selection Committee and the Deputy Director, Food/Chairman of the Selection Committee, Bahawalpur region. I am not concerned with the remaining two officials other than the appellant because they are not subject‑matter of the appeal. The Deputy Director Food after receiving the impugned order of the Director who was his supervisory officer and in the light of the Rules, Notification and Circular letters of the Government 'cited above should have cancelled the appointment of the appellant on his own discretion which does not appear to be the case. In fact the appointment of the appellant was on purely temporary basis and his services could be terminated by the Deputy Director, Food without any show‑cause notice or any reason.

6. Hence, with the above, observations the appeal is accepted because the Director Food, Punjab was not competent to cancel the appointment of the appellant as Assistant Food Controller issued, vide order, dated 17‑4‑1984 of the Deputy Director Food, Bahawalpur. Beside that the Deputy Director, Bahawalpur did not order the cancellation of the appointment of the appellant under the terms of appointment order, dated 17‑4‑1984 or otherwise in his own discretion while exercising the powers of Deputy Director, Food under the Rules and instructions cited above. However, according to my opinion there is no bar for the Deputy Director, Bahawalpur Region or the Secretary Food, Punjab to cancel the appointment of the appellant preferably by issue of show‑cause notice, with grounds stated above, while quoting the Rules and instructions of the Government cited above.

A. A. Appeal accepted.

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