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Appeal No. 341(R) bf 1984, decided on 23rd May, 1987.

‑‑‑S.4‑‑Notification No. O. M. No.1(1)‑R/3/83, dated 18‑8‑1983‑ Re‑organization of Audit Department‑‑Thirty‑five per cent of Auditors constituting separate cadre of Audit and Accounts Assistant placed in BPS‑11‑‑Plea of appellant that thirty‑five per cent of total number of Auditors as existed on 30‑6‑1983 should continue to exist in terms of re‑organization, repelled‑‑Fixed strength of Audit and Account/ Assistants in the old cadre, could not be accepted‑‑Percentage fixed at thirty‑five per cent would dictate actual number of posts in the old cadre at any one time‑‑Appeal being devoid of merit was dismissed.

Raja Muhammad Asghar Khan for Appellant.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 26th April, 1987.

‑‑The appellant, S. Fiaz Hussain Naqvi, Auditor, AGPR, Islamabad having been aggrieved by clarification on the scheme of re‑organization for the Junior and Senior Auditors in the Audit Department vide Auditor General's Letter No. 10‑NGE.I/32‑83, dated 8‑2‑1984, has come in appeal before the Tribunal. The appellant preferred a departmental appeal to the Secretary, Ministry of Finance on 7‑3‑1984. He has come in appeal before us after waiting for the statutory period of 90 days for want of reply in respect of his departmental appeal.

2. The case of the appellant is that prior to 18th August, 1983, there were three cadres in the Pakistan Audit Department i.e. Junior Auditor (B‑5), Auditor (B‑7) and Audit and Accounts Assistant (B‑11). Fifty per cent posts of Auditors were filled in by promotion of Junior Auditors and other 50% by direct recruit. However, there was no direct recruitment to the post of Audit & Accounts Assistant (B‑11). All the posts of Audit & Accounts Assistants were filled in by promotion of Auditors on the principle of seniority‑cum‑fitness.

3. The Audit Department was re‑organized with effect from Ist July., 1983 vide O.M. No.1(1)‑R/3/83, dated 18‑8‑1983, the extract of the relevant portion is given below:‑

"The existing cadre of Auditors may be split up into two cadres, Auditors and Senior Auditors. The cadre of Auditors may continue to be filled in by promotion of Junior Auditors on seniority -cum‑fitness basis. The cadre of Senior Auditors should be filled in by present graduate Auditors/ Assistants or those non‑graduate Auditors who subsequently graduate and by direct recruitment of graduates. The post of the Auditor may carry Scale B‑7 while that of the Senior Auditor Scale B‑11. 35% of posts of the Auditors which at present constitute a separate cadre of Audit and Accounts Assistants may continue to draw pay in B‑11. One‑third of the posts of Senior Auditors should have a selection Grade in B‑13."

4. According to the re‑organization as given out in the above mentioned O.M., 35% of Auditors which constitutes a separate cadre of Audit and Accounts Assistants were to continue to draw pay in B‑11. It was contended by the learned counsel for the appellant that the cadre of Audit and Accounts Assistant in B‑11 to the extent of 35 posts of Auditors which existed on 30‑6‑1983 should continue to exist in terms of this re‑organization. Therefore, on the basis of the total number of sanctioned posts of Auditors existing on 30‑6‑1983, the strength of 35 posts of Audit and Accounts Assistants would be calculated as follows:

"Total posts 35% of total number

of posts of Auditors

724

Less Leave/ 93 35% of 631 221

Training

Reserve

______

631

5. In view of the above calculation as it existed on 30‑6‑1983, the number of posts of Auditors cannot be reduced to less than 221 because this figure constituted the existing cadre of Audit and Accounts Assistants. It was further contended that the number of Graduate Auditors/Audit and Accounts Assistants who were to constitute the new cadre of Senior Auditors should not in any way affect this figure of the cadre of Audit and Accounts Assistants. The AGPR, it was contended, has wrongly calculated the strength of 35% as 161 of the remaining posts which were to constitute the cadre of Audit and Accounts Assistant as on 1‑7‑1983. It was submitted that the posts of Senior Auditors are not fixed. In fact any number of Graduates both out of the Auditors as well as out of the Audit and Accounts Assistants could be shifted/ promoted to the newly created‑cadre of Senior Auditors.

6. Since the appellant was promoted as Auditor with effect from 31‑5‑1977 and being the non‑Graduate Auditor, he was entitled to be considered and promoted as Audit and Accounts Assistant against 35% posts of the cadre i.e. 221 as on 30‑6‑1983. However, due to incorrect interpretation by the AGPR of the Ministry of Finance, O.M. dated 18‑8‑1983 on the re‑organization of the Audit Department, the appellant has been deprived of being promoted in B‑11 with effect from 1‑7‑1983. It was strongly contended that the clarification issued by the Auditor General on 8‑2‑1984 is ultra vires and is, therefore, liable to be set aside. According to this clarification the AGPR has in fact made the cadre of Audit and Accounts Assistants as a dying cadre and with the passage of time the strength of Audit and Accounts Assistants shall diminish altogether. This is contrary to the spirit of the re‑organization scheme. If this interpretation of the AGPR is taken as correct then a time will come that no Auditor will be promoted as Audit and Accounts Assistant. Since at the time of appellant's recruitment in the Department, there was no such condition laid down whereby the Graduates were to be preferred for promotion irrespective of their seniority, the AGPR's clarification on the subject is very much to the disadvantage of the appellant and has changed the fundamental terms and conditions of his recruitment. This is against the principle of natural justice and, therefore, renders Finance Division O.M. dated 18‑8‑1983 regarding re‑organization of the Audit Department as illegal and void.

7. The learned counsel for the respondents alongwith the departmental representatives basically agreed with the working of the strength of various grades of officials as given out by the learned counsel for the appellant in the preceding paras. They, however, submitted that the figure of 221 which constituted the cadre of Audit and Accounts Assistants as worked out before the introduction of the re‑organization‑ scheme i.e. as on 30‑6-1983 was upto 35% of the posts of Auditors (B‑7). 'However, it was contended that in view of the re‑organization scheme this figure of 221 of Audit and Accounts Assistants cannot remain fixed. It was further contended that it is the percentage of 35% which is relevant figure in this context. Therefore, every time the Graduate and also the non‑Graduate Auditors who, on promotion, are transferred to the newly‑created cadre of Senior Auditors with effect from 1‑7‑1983 will make this figure of 221 fluctuate accordingly. It was further argued and strongly contended by the learned counsel for the respondents that if the intention of O.M. on re‑organization was to maintain the figure 221 Audit and Accounts Assistants irrespective of the number of sanctioned posts and also the promotion of Auditors to the newly‑created cadre of Senior Auditors, then it would have been only appropriate for the Government to lay down this figure of 221 in the O.M. of the Finance Division, dated 18‑8‑1983. Since it is not the intention of the Government to fix this figure which actually stood at 221 before the introduction of the reorganization scheme i.e. before 1‑7‑1983, it cannot be safely concluded that it is the percentage of 35% which shall remain constant percentage to work out the strength of the Auditors in this old cadre of Audit and Accounts Assistant. Therefore, it was contended that the working of the strength of various grades/posts in view of the introduction of the re‑organization scheme shall be as under as on 1‑7‑1983:‑

8. It was brought out by the learned counsel for the respondents that as out of 221 Audit and Accounts Assistants, 103 Graduate Audit and Accounts Assistants were transferred to the cadre of Senior Auditors, there remained 118 Audit and Accounts Assistants in this cadre. The resultant 43 vacancies (161 ‑ 118 = 43) were filled in by promotion of non‑Graduate Auditors to the Audit and Accounts Assistant cadre.

9. It was further contended that it would not be correct to presume that the non‑graduate Auditors would have very little chances of further promotion. The promotion chances of non‑graduate Auditors will remain directly proportional to the number of vacancies to be worked out at any one time. There is no doubt that as against the figure of 221, the promotion of Auditors to the existing cadre of Audit and Accounts Assistants will remain only upto the figure to be worked out at the ratio of 35% of the Auditors. This situation could only be changed if there was to be any increase in the sanctioned strength of Auditors. Conversely, if there is an increase in the sanctioned strength of Auditors how would it be possible to stick to the fixed figure of 221 as contended by the learned counsel for the appellant. It, therefore, stands to reason that the figure of 221 cannot be taken as the fixed strength of the old cadre of Audit & Accounts Assistants in B‑11. This figure will continue to fluctuate according to the number of promotions as per the re‑organization scheme. It was, however, agreed by the learned counsel for the respondent, that the appellant was entitled to be considered on his turn for promotion as Audit and Accounts Assistant against one of the 35 posts in this cadre as on 1‑7‑1983. Since the appellant according to his seniority could not be included among the first 43 posts which fell vacant on 1‑7‑1983 as a result of the re‑organization scheme, he could not be promoted as claimed by the appellant as Audit and Accounts Assistant. If, it was further contended, any other office has misinterpreted the O.M. of Finance Division, it is for them to correct their calculations in view of the above explanation. It was strongly contended by the learned counsel for the respondents that the clarification issued by the Auditor General vide Circular No. 10‑NGE I/32‑83, dated 8‑2‑1984 read with No. 502‑NGE. I/32‑83‑KW‑III, dated 11‑6‑1984 (Appendix I) and No.775‑NGE.I/32‑83‑KW.III, dated 15‑8‑1984 (Appendix‑II) are fully in accordance with the spirit of the policy of the Ministry of Finance O.M., dated 18‑8‑1983.

10. We have carefully perused the contents of the Finance Division O. M. No. F.I(1)‑R‑3/83, dated 18‑8‑1983 on the introduction of re‑organization scheme and also the calculations of various cadres/posts given out both by learned counsel for the appellant as well as the respondent‑department. We strongly feel that the contention of the appellant regarding the fixed strength of Audit and Accounts Assistants in the old cadre at 221 cannot be accepted. It is only the percentage which is fixed at 35% which shall always dictate the actual number of posts in the old cadre at any one time. The strength of the old cadre of Audit and Accounts Assistants shall, therefore, continue to fluctuate.

11. The upshot of the above arguments is that the appeal cannot succeed which is accordingly dismissed with no order as to costs.

A.A.375/Sr.F.

Appeal dismissed.

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