Full Judgment Text & Judicial Ruling

2003 PLC (C

2003 PLC (C.S.) 910

[Lahore High Court]

Before Tanvir Bashir Ansari, J

GHULAM HAIDER SHAD, MANAGER, AUQAF, BAHAWALPUR

Versus

CHIEF ADMINISTRATOR, AUQAF PUNJAB, LAHORE and others

Writ Petition No.938-S of 1995/BWP dismissed on 22nd March, 2002.

Punjab Auqaf Organization (Appointment and Conditions of Service) Rules. 1994------

-----R.6---Appointment on current charge basis---Regularization of service---Civil servant prior to his appointment against newly created post of Assistant Manager on current charge basis only, was appointed as a Stenographer---All posts of Assistant Managers in Auqaf Organization having been upgraded as Managers, civil servant had claimed to have been regularized as such, contending that act of fixation of his salary of Assistant Manager and Manager and payment of annual increments would show that he was treated as Assistant Manager/Manager---Promotion to a selection post under R.6(1) of Punjab Auqaf Organization (Appointment and Conditions of Service) Rules, 1994 was to be made on basis of selection on merits while in case of a non-selection post, promotion would be made on basis of seniority-cum fitness---Civil servant had failed to demonstrate on record that his appointment/promotion as Assistant Manager was made either upon recommendation of Selection Board or was result of recommendation by appropriate Departmental Promotion Committee and that his promotion to post of Assistant Manager was made on regular basis---Contention that civil servant was paid salary in higher scale or that he was also transferred in capacity of Assistant Manager, would not advance the case of civil servant.

Federation of Pakistan and others v. Rais Khan 1993 SCMR 609 ref..

M. Shamshir Iqbal Chaughtai for Petitioner.

Muftu-ur-Rehim and Aziz-ur-Rehman Khan for Respondents.

Date of hearing: 21st March, 2002.

JUDGMENT

The petitioner was originally appointed on 16-4-1969 as Junior clerk. He was posted as Stenographer in BS-8 vide order dated 17-1-1983. His pay scale was later revised and he was awarded Pay Scale,No.12. According to the petitioner; he was appointed as Assistant Manager in BS-14 vide order dated 17-8-1993 after having beer. recommended by the Selection Board. He submitted his joining report as Assistant Manager on 19-8-1993 and was posted at Uch Sharif Circle. He was later assigned the charge of Assistant Manager Auqaf, Bahawalpur Circle, in addition to his earlier charge. He was later transferred to Bahawalpur vide order dated 10-2-1994. Upon the recommendation of the Evaluation Committee constituted by the Auqaf Board, all the posts of Assistant Managers BS-14 in the Auqaf Organization were upgraded as Managers in BS-16 vide order dated 16-2-1994. The petitioner claims to have been regularized vide order dated 23-2-1994. On 18-4-1995, the petitioner was reverted to his substantive post. The petitioner has challenged the aforesaid reversion on the ground that the appointment of the petitioner against the post of Assistant Manager was made on the recommendation of the Selection Board and would be deemed to be on regular basis. According to the petitioner, he fulfilled at the prescribed qualifications for such appointment. He further submitted that vide order dated 23-2-1994, the services of the petitioner have been regularized according to the law after the completion of the current charge period. He further urged that the act of fixation of salary in BS-14 and the later in BS-16 and the payment of the annual increments would show that the petitioner was treated as regular Assistant Manager/Manager in the respondent Establishment. The order of reversion has been further challenged on the ground that the reversion being a major penalty, the petitioner could not be reverted without making recourse to the provision of the Efficiency and Discipline Rules applicable to the respondents. The impugned order according to the petitioner was also bad on the ground of audi alteram partem, as the petitioner was not given any opportunity of being heard.

2. On the other hand, it has been contended by the respondent Department that the petitioner was admittedly appointed against the newly created post of Assistant Manager only on current charge basis vice order dated 17-8-1993 and posted at Uch Sharif Circle. The petitioner was appointed as Assistant Manager, Auqaf Bahawalpur in the leave vacancy of Irshad Ahmad. Assistant Manager. Later, he was transferred to Bahawlpur. It was contended that although the posts of Assistant Managers (BS-14) were upgraded as Managers (BS-16). However, even the regular incumbents of the posts of Assistant Managers were to work as Managers on current charge basis till they were properly clear for promotion, as Managers. It was emphasised that the petitioner was not even a regular incumbent in the post of Assistant Manager. Relating to the order dated 23-2-1994, it was clarified were appointed on current charge basis would draw the pay of the post to which they have been appointed. However, the period of service rendered on current charges basis could not count towards seniority and this was so stipulated in the said order. It was also contended that as the petitioner was not holding a regular post of Assistant Manager/Manager, he was sent back to his substantive post vide the impugned order. The impugned order in such circumstances does not amount to revision and no reference to the E&D Rules was necessary. It was lastly contended that the writ petition was not competent as under the Punjab Auqaf Organization (Appointment and Condition of Service) Rules, 1994, an appeal/representation is provided under rule 18 ibid which was an adequate and efficacy remedy. for petitioner,

3. Arguments have been heard and record perused.

4. From the documents placed upon the record by the petitioner himself, it transpired that the petitioner was appointed against the newly created post of Assistant Manager on current charge basis only, Prior to this appointment, he was employed as a Stenographer. His contention that he was duly promoted/appointed to the post of Assistant Manager through the recommendation of the Selection Board is not borne out from the record. A reference to Rule 6 (1) of the above-mentioned Rules, 1994 would show that promotion to a selection post shall be made on the basis of selection on merit while in case of a non-selection post, promotion shall be made on the basis of seniority cum-fitness. Sub-rule (2) of Rule 6 further provides that appointment by promotion shall be made on the recommendations of the appropriate Departmental, Promotion Committee. The petitioner has failed to demonstrate on the record that his appointment/promotion as Assistant Manager was made either upon the recommendation of the Selection Board or was the result of recommendation by the appropriate Department promotion Committee. All the documents placed by the petitioner on the record consistently described the petitioner to be holding the higher post on current charge basis." The petitioner has been thus, unable to show that this promotion to the post of Assistant Manager/Manager was made on regular basis. The contention that the petitioner was paid salary in the higher scale or that he was also transferred in the capacity of Assistant Manager/Manager would not advance the case of the petitioner.

5. The reliance placed by the learned counsel for the petitioner on. the case of Federation of Pakistan and others v. Rais Khan (1993 SCMR 609) is not apt. The proposition under discussion Hi the precedent case was whether a person who was appointed on ad hoc basis and was regularized subsequently could count the entire length of service including the period of ad hoc appointment and had thus, completed the requisite number of years necessary for regular promotion. The facts of the .instant case are completedly distinguishable.

6. In view of the above discussion, there is no merit in this writ petition which is hereby dismissed, leaving the parties to bear their own costs.

H.B.T./G-212/L. Petition dismissed.

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