RAFI ULLAH KHAN Versus THE DISTRICT & SESSIONS JUDGE, BANNU

The District and Sessions Judge Bannu invited applications through publication in the daily 'Mashriq' Peshawar dated 14‑8‑2001 for filling up three vacant posts of Senior Clerks/Readers (BPS‑7) to the Court of Civil Judges‑cum‑Judicial Magistrates, besides some other posts. Rafiullah, Rehmat Ayaz and Zainullah Khan, appellants herein, who were already serving as Junior Clerks/Moharrirs in the same establishment of the said Court from different periods, also submitted applications to the learned District and Sessions Judge Bannu for their promotion as internal candidates to the advertised posts of Readers instead of hiring from external candidates through initial recruitment. Their request for promotion was declined vide order dated 1‑9‑2001. They were directed to appear for written test and interview. They submitted a review petition before the learned District and Sessions Judge Bannu which too was refused vide order dared 19 9‑2001. The appellants approached this Court through their separate Departmental Appeals No. 1 of 2002, 2 of 2002 and 3 of 2002 tiled by Rafiullah, Rehmat Ayaz and Zainullah Khan respectively. While these appeals were pending in this Court, the learned District and Sessions Judge Bannu vide order dated 24‑10‑2001 appointed Sher Daud Khan, Azmatullah Khan and Ibn‑e‑Yamin Khan as Senior Clerks/Readers (BPS‑7) against the advertised vacant posts, therefore, appellants through CMs No.5, 6 and 7 of 2002 prayed for amendment of their appeals to challenge the subsequent appointment order and also to implead the fresh recruits. Their prayer was allowed vide order dated 1‑4‑2002 and the new recruits were accordingly impleaded as respondents in the present appeals.

2. Comments of the learned District and Sessions Judge Bannu have been filed.

3. I have also heard the learned counsel for the appellants as well as for the new recruits/respondents at length. Comments filed by the learned District and Sessions Judge Bannu also gone through.

4. Since common questions of law and facts are involved, therefore, all these appeals are decided through this single order.

5. At the very outset, it may be mentioned here that appointments to the posts to the service of this Province are regulated by N.‑W.F.P. Civil Servants (Appointment, Transfer and Promotion) Rules, 1989, Rule 3 whereof reads as under:‑

" Method of Appointment : ‑‑‑(1) Appointment to posts shall be made by any of the following methods, namely:‑

(a) by promotion or transfer in accordance with the provisions contained in Part‑II of these rules; and

(b) by initial recruitment in accordance with the provisions contained in Part‑III of these rules.

(2) The method of appointment, qualifications and other conditions applicable to a post shall be such as laid down by the Department concerned in consultation with the Services and General Administration Department and the Finance Department".

Till date no method of appointment, qualifications and other conditions has been laid for the ministerial posts in the subordinate judiciary in accordance with sub‑rule (2) of rule 3 above, therefore, the pre‑existing rules available on the subject, so far as they are not inconsistent with the above‑named rules, are to be followed. The pre‑existing rules governing the service of ministerial officers of the subordinate judiciary are contained in Chapter‑18 Vol. 1 of High Court Rules and Orders. Rule VI whereof reads as under:‑

" Promotion .‑‑‑(1) Appointments to the higher grades of the ministerial establishment should ordinarily be made by seniority from lower grades provided that the official who would thus receive promotion possesses the prescribed educational qualifications and is otherwise fit to perform the duties to which he will be promoted, for which purpose tests may be imposed. This rule does not apply to such posts as that of stenographer for which special qualifications are needed; but preference should be given to officers with such qualifications who are already working in the lower grades:

Provided that permanent vacancies in the 75‑5‑125 grade shall be filled by the District and Sessions Judges in the following rotation:‑

(i) By selection on merit out of graduates who have at least two years experience in the work of the office; if there is no suitable graduate who fulfills this condition an 'outsider' graduate may be appointed, but he must be one who normally resides within the jurisdiction of the District and Sessions Judge.

(ii) and (iii) By normal promotion in the office, i.e., the appointment of the next senior man whether graduate or non‑graduate subject to his fitness:

Provided further that the rotation may be modified in very exceptional cases when the direct appointment of a graduate would mean the ousting of a man, who had been officiating quasi -permanently in the post concerned for an appreciable period. What is an appreciable period will depend on the circumstances of each case. After such a modification, the rotation should be restored as soon as possible.

(2) In making promotions, preference may invariably be shown to officials who are known to be strictly honest. No promotion should be given and no recommendation for promotion made in the case of an official who does not possess and maintain a reputation for strict integrity. Efficiency without honesty is not to be regarded as constituting a claim to promotion".

From a plain reading of the above quoted rule‑VI, it is clear that the post of Reader to Civil Judge being higher grade of the ministerial establishment is to be tilled up by promotion on the basis of seniority‑cum‑ fitness from among the officials of the lower grades, meaning thereby that these posts are promotion posts and not to be tilled up by initial recruitment. Thus the very method adopted for making the impugned appointments was against the law and rules on the subject.

6. The Government has framed a policy for making selection for promotion which is contained on page 401‑A Chapter‑2 of N.‑W.F.P. Establishment Code. Para‑2 whereof reads as under:‑

"In order to ensure a fair degree of selection, minimize the chances of discretion and favouritism, the Provincial Government have laid down the following criteria for selection for promotion vis‑a‑vis initial recruitment to the posts which are tilled by the Department concerned:

(i) Criteria for Selection for Promotion . ‑‑‑Promotion to any post in a Grade below Grade 16 shall not be subject to any test. The suitability for candidates shall be determined on the basis of service record i.e. seniority‑cum‑fitness.

(ii) Criteria of Selection for initial recruitment.

This being the latest policy on the subject, it is clear that promotion from post in BPS‑2 to BPS‑16 has to be made from amongst the candidates of the concerned department on the basis of service record/seniority-cum‑ fitness.

7. So far as the contention of the learned District and Sessions Judge Bannu that the appellants lacked typing speed of 30 words per minute is concerned, it had got no force because nowhere such condition has been prescribed by any rules for promotion to the posts in question. It is not the case of respondent/authority that the appellants were either inefficient or lacking the requisite qualification or were suffering otherwise from any disability for promotion to the posts in question. It is further pointed out that by promoting Shah Daraz to the post of Assistant without any test and interview, the learned District and Sessions Judge Bannu has discriminated the appellants by subjecting them to a test/interview for promotion. Moreover, in other Districts i.e. Kohat and D.I. Khan, similar posts have been filled up by promotion from amongst the existing Junior Clerks/Moharrirs, therefore, on that score too, the appellants have been discriminated.

8. In the result, I allow all these appeals and set aside the impugned order of the learned District and Sessions Judge, Bannu. He is directed to till in the vacant positions of Senior Clerks/Reader through promotion. The appellants, if eligible, be considered for promotion to the posts in question. The fresh recruits/respondents who have also served the department for over a year may also be considered for any upcoming vacant posts at the bottom.

S.A.K./709/P Appeal accepted.