BASHIR AHMAD vs Malik KHYZAR HAYAT And Other
The petitioner, a civil servant, sought leave to appeal against a High Court judgment regarding his promotion to the post of Civil Nazir. The core legal question was whether a promotion made by the Senior Civil Judge without the recommendation of the Departmental Promotion Committee (DPC) constituted a regular appointment under the Punjab Civil Servants Act 1974. The Supreme Court held that since the appointment was made without DPC consultation, it could not be considered a regular promotion under the prescribed rules. However, the absence of a DPC did not negate the appointing authority's power; rather, it rendered the appointment ad hoc. The Court further affirmed that the District Judge acted within jurisdiction in entertaining the grievance, as Section 21 of the Punjab Civil Servants Act 1974 allows for representation where no formal right of appeal exists. The Court directed that the petitioner continue as an ad hoc employee until a regular appointment is made in accordance with the law, thereby ensuring the appointment process is regularized.
- Does an appointment made without the recommendation of a Departmental Promotion Committee constitute a regular promotion under the Punjab Civil Servants Act 1974?
- What is the legal status of an appointment made by an appointing authority in the absence of a constituted Departmental Promotion Committee?
- Does a District Judge have the jurisdiction to entertain a grievance against a promotion order made by a Senior Civil Judge when no formal right of appeal exists?
- Section 2(2), Punjab Civil Servants Act 1974
- Section 21, Punjab Civil Servants Act 1974
- Rule 4, Punjab Civil Servants (Appointment and Conditions of Service) Rules 1974
ORDER
1. SHAFIUR RAHMAN, J.--The petitioner, a civil servant, seeks leave to appeal against the judgment of the Lahore High Court dated 27-6-1982 whereby the order of the District Judge dated 17-3-1981 was held in tact in spite of holding that it was not competently passed and constitutional petition filed by him was dismissed on 8th of June, 1982 and its dismissal was maintained though on different grounds in the Intra-Court Appeal.
2. The petitioner was employed as a Naib-Nazir in the ministerial establishment of the Senior Civil Judge when the promotion post of Civil Nazir fell vacant in the year, 1980. The Senior Civil Judge took up the case of promotion, considered all the eligible subordinates and the petitioner who was at No. 4 of the seniority list was preferred and appointed as Civil Nazir with immediate effect on 10- 3-1980. The employee who was the senior most filed an appeal. The District Judge who allowed the appeal entertained it and the Senior Civil Judge was asked to elicit the opinion of the Departmental Promotion Committee and to decide the matter afresh by the end of the month.
3. The petitioner then filed a constitutional petition. The learned Judge in the High Court held the view that the learned Senior Civil Judge, Gujranwala on 10th of March 1980 had no jurisdiction to promote or make appointment to the higher post without recommendation of the Departmental Promotion Committee, which stood already, constituted. The appeal before the District Judge was held to be incompetent. A11 the same it was maintained as the order of the Senior Civil Judge, which it set aside, was itself found to be without jurisdiction. The appellate Bench of the High Court, however, came to the conclusion that the order of the Senior Civil Judge, dated 10-3-1980 was illegal and it was not a fit case where the order of the District Judge should be interfered with and an illegality should be perpetuated.
4. After hearing the learned counsel for the petitioner at length, we have come to the conclusion that this is not fit case for leave to appeal. Our reasons for holding so are as follows:-- The Punjab Civil Servants Act was enforced in 1974 long before the question of promotion to the post of Civil Nazir arose. Subsection (2.) of section 2 of the Punjab Civil Servants Act provides "for the purposes of this Act an appointment whether by promotion or otherwise shall be deemed to have been made on regular basis if it is made in the prescribed manner". Prescribed has been defined to mean as prescribed by rules. The Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, provide for the establishment of Departmental Promotion Committee and rule 4 provides "a Departmental Promotion Committee shall make selection for appointment by promotion or transfer to post in or under a department or office for which it is constituted in Grade- 18 and below". The appointment made by the Senior Civil Judge was without consulting the Departmental Promotion Committee and as such it cannot be said to be a promotion made in accordance with the law.
5. He had a good reason not to consult the Departmental Promotion Committee as it appears that it was established and notified on 1st of April, 1980 and not when the appointment was made. The absence of the Departmental Promotion Committee did not create a void for the appointing authority could still make appointment of a distinct category which would not be in accordance with the method prescribed and it is defined as ad hoc appointment. The absence of the Departmental Promotion Committee would not make the appointment in accordance with the method prescribed as the method prescribed was of getting a recommendation from the Departmental Promotion Committee. The absence of the Departmental Promotion Committee does not affect the power of A the appointing authority though it affects the nature of the appointment made.
6. As regards the interference of the District Judge on a so-called appeal, we find that section 21 of the Civil Servants Act allows a right of representation where no right of appeal exists. In the background of law applicable to the situation the grievance of the appealing[ respondent would be not with regard so much to the fitness of the petitioner as to the non-regular appointment being converted into a regular appointment by the learned Senior Civil Judge. It is competent. The District Judge's order was, therefore, with jurisdiction and he only directed that the regular appointment should be made in accordance with the law.
7. The order of the Senior Civil Judge would get protection, he being the competent appointing authority to the extent that the appointment will be ad-hoc and will continue till a regular appointment is made which, visualized by law had to be made within six months. The order of the District Judge is also with jurisdiction as he could justifiably interfere and get the appointment regularised.
8. We direct that till the regular appointment is made as directed by the District Judge the petitioner shall continue to work on the post as ad hoe employee. The competent appointing authority shall take immediate steps to deal with the matter in accordance with the law on the subject.
9. M.I. Direction accordingly