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Appeal No. 44(R) of 1987, decided on 15th April, 1987.

‑‑‑S.4‑‑Civil Servants Act (LXXI of 1973), S.10‑‑Fundamental Rule 15‑‑Office Memo. No. 4/8/85‑R.6 dated 3‑12‑1985 issued by Establishment Division‑‑Foreign postings not a right‑‑Transfer abroad within ambit of Departmental Transfer Committee‑‑Posting in Pakistan Missions abroad, held, could not be claimed as of right‑‑Decision of Departmental Transfer Committee recommending foreign postings in order of merit upheld.

Muhammad Asghar Khan for Appellant.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 15^th April, 1987.

.‑‑This order will dispose of Appeal No. 45(R)/87 by Sarfaraz A. Bhatti and appeal No. 46(R)/87 by Ahmad Bakhsh as well, the question involved in all the three being common.

2. The appellants are Accounts Assistants and so are respondents 3 to 6. Their seniority position is as under: ‑

3. All the above persons are employed in the Ministry of Foreign Affairs, under the Chief Accounts Officer. When the question of their posting abroad, in the Foreign Missions, arose, the Ministry of Foreign Affairs referred the matter to the Departmental Transfer Committee of the Office of the Chief Accounts Officer. The Committee held its meeting on 29‑7‑1986, and after interviewing all the candidates in order of seniority and reviewing their Confidential Reports, recommended their Foreign postings in order of merit as under:‑

1. Hussain Ali.

2. Ahmad Majid.

3. Jan Muhammad.

4. M. Aslam Bajwa.

5. Ilyas Amjad Pervez.

6. Ahmed Bakhsh.

7. Sarfaraz A. Bhatti.

8. Raja Muhammad Akhtar.

The intention of the decision is that the Foreign postings should be given whenever a vacancy occurs in order of merit determined by the Departmental Transfer Committee. The three appellants who had been shown as last in the merit have challenged the decision, saying that the Committee was bound to approve or disapprove the candidates for employment in the Foreign Missions, and that they exceeded their jurisdiction when they determined the merit contrary to the seniority in the cadre. Reliance in this respect was placed on the Office Memo. No. 4/8/85‑R.6, dated the 3rd December, 1985, issued by the Establishment Division on the subject "Seeking to lower post for posting abroad". This Office Memo. reads as follows:‑

"The undersigned is directed to say that instances have come to the notice of Establishment Division where the Ministries/ Divisions have been found indulging in the practice of permitting the employees serving under them, especially those belonging to the ministerial cadre holding posts of Private Secretary, Superintendent, Assistant, Stenographer, etc. to revert to the lower post with a view to facilitate their posting in Pakistan Missions abroad. In the recent past, few Ministries/ Divisions approached this Division also supporting requests of their employees for reversion to lower posts for the purpose of posting abroad.

2. The above matter has been given careful consideration keeping in view the provisions of section 10 of the Civil Servants Act, 1973, and F. R. 15. It has been held that these provisions do not lend any support to voluntary requests of officials for reversion to lower posts with a view to winning posting in Pakistan Missions/offices in foreign countries.

3. In view of above, it is advised that the requirements of Pakistan Missions/offices abroad may be met by restricting selection to holders of corresponding posts in Ministries/ Divisions. The selection for posting abroad may be made on the basis of seniority‑cum‑fitness by an ad hoc committee to be constituted specifically for the purpose."

The learned counsel for the appellant has relied on the third para of the office Memo. which provides that the posting abroad may be made on the basis of seniority‑cum‑fitness basis by an ad hoc committee to be constituted specifically for the purpose. The learned counsel contends that this instruction by the Establishment Division was binding on the Ministry of Foreign Affairs, and that the appellants having been approved for posting abroad and they being senior to the respondents, should have been given first chance of posting abroad, and their cases should not be deferred for future appointments subsequent to the appointment of their juniors. The learned counsel for the State, on the other hand, has pointed out and rightly so, that para. 3 is not a rule, but is only a view of the Establishment Division in the nature of an advice which does not interpret any specific rule, and that the Ministry of Foreign Affairs is not bound to adhere for posting in the Foreign Missions to the inter se seniority of the approved candidates. Needless to say that the office Memorandum was issued to advise the Ministry of Foreign Affairs that it was illegal to revert a person to a lower post for giving him appointment in the Foreign Missions in view of section 10 of the Civil Servants Act, 1973 and F.R.‑15. To this extent, it was the advice of the Establishment Division interpreting the relevant law and the rule. Para. 3 ibid, on the other hand, is out of context and the Establishment Division had no jurisdiction to make a rule without the approval of the President or of the authority to whom the President delegates such powers. Needless to say that postings in Foreign Missions is a sensitive question and the Ministry of Foreign affairs itself is the proper Judge. To decide upon the matter, the Departmental Transfer Committee has been constituted and its advice carries much weight, which ordinarily should be accepted by the competent authority. It was explained that all the appellants had been disapproved in the previous meetings of the Committee, but during the last meeting, their names were approved in view of their long service, but their posting was deferred to enable them to earn requisite experience in the relevant field.

4. For the reasons stated above, we are of the opinion that the appellants cannot, as of right, claim foreign posting and that the Departmental Transfer Committee had done them favour by approving them for foreign posting in future without reconsidering their names. We, therefore, dismiss all these appeals, but with no order as toy costs.

5. Parties to be informed accordingly

M.Y.H.l371/Lb./S

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