ASLAM WARRAICH And Others vs SECRETARY, PLANNING AND DEVELOPMENT

1. MUHAMMAD AFZAL ZULLAH, CJ: --These four matters include two appeals through leave of this Court and two petitions for leave to appeal. They have all been filed by the same person.

2. Learned counsel has explained that a factual error having been discovered. In the impugned judgment after the filing of the petitions in the two appeal matters, request was made to the Tribunal for re-opening the matter but having met failure before the Tribunal leave to appeal has been sought therein 6 also-- CPs-365 and 366 of 1990.

3. After hearing both the learned counsel these two petitions for leave to appeal are converted into appeals. Accordingly, all the four appeals are being disposed of together.

4. The facts and point noted in the leave grant order are that Mr. Aslam Warraich appellant was directly appointed through Public Service Commission as Deputy Chief, Planning and Development Division on 19-2-1985. Ghulam Haider respondent was promoted as Deputy Chief on acting charge basis on 13-3-1984. Likewise Mr. Saleem Parvaiz Siddiqui respondent was promoted as Deputy Chief on acting charge basis on 14-10-1984. The respondents' case for regular promotion was initiated on 17-10-1985. Their regular promotion was notified on 18-3-1986. The respondents made separate representations in June, 1988 for seeking regular promotion from 9-12-1985 instead of 18-3-1986.

5. They were rejected on 4-8-1988. They moved another set of representations which were rejected in October, 1988. They then filed appeals before the Tribunal which held them seniors to the appellant, a direct appointee of 1985 and they being promotees-- having been held so from 9-12-1985, leave to appeal was granted to examine the following contention: "On behalf of the petitioner it is contended that under rule 8(6) and. (7) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, acting charge appointment does not amount to appointment by promotion on regular basis and does not confer any vested right for regular promotion to the post held on acting charge basis. It is further stated that the rule does not make it obligatory for the department to approve the promotion immediately on completion of requisite length of service."

6. It may straightaway be noted that the point which prevailed with the Tribunal for accepting the respondent's appeals was: "According to Rule 8-B(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, civil servants who are otherwise eligible for promotion, but do not possess the requisite length of service are appointed on acting charge basis and according to the sub-rule (5) the appointments on acting charge basis is made on the recommendation of D.P.C. Or C.S.B. Appointment on acting charge basis implies that a person is fit for regular promotion except that he does not possess the requisite length of service. In the instant cases, the appointments on acting charge basis indicated that the appellants were fit to hold the post of Deputy Chief but did not possess the required length of service. The appellants were subsequently cleared by the C.S.B. And appointed as regular Deputy Chiefs and it shows that they continued to be fit for promotion as Deputy Chiefs. As such both the .Appellants were also fit for promotion on 9-12-1985, the date on which they completed 12 years of service."

7. The reasoning in the departmental approach as is discoverable from the second rejection of the representations of the respondents on 6/9-10-1988 was that the acting charge appointment will not amount to appointment by promotion on regular basis for any purpose including seniority. And that it would not confer any vested right for regular appointment to the post or grade held on acting charge basis.

8. Rule 8-B(1) of the Civil Servants (Appointment Promotion and Transfer) Rules, 1973. which has been relied upon by both the department as well as by the Tribunal reads as follows:--- -- "8-B(1) where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis".

9. As is apparent from the sub-clause (7) of Rule 8-B that the respondents could not have claimed any vested right for regular promotion to the post held by them on acting charge basis. Similarly the appointment on acting charge basis could not be treated as promotion on regular basis for any purpose including seniority. This is the mandate of sub-clause (6). But what the departmental/ competent authority missed as a very important point is that though on account of sub-clause (7) the respondents could not claim any vested right for regular promotion on the mere qualification that they had earlier been appointed on acting charge basis; yet it did not mean that they by appointment on acting charge basis had lost the right to be considered for regular appointment during the time that they held the acting charge if otherwise they qualified in every respect to be appointed on regular basis. For example, in this very case as has been urged from their side, they had also been formally cleared for promotion by D.P.C. Or C.S.B. This hurdle, if over, the other hurdle; namely, completion of 12 years service also disappeared on 9-12-1985. Therefore, if their cases would have been examined on" the said date for regular promotion, we have not been told any reason why they would not have been promoted. The exercise, to discover the reason why they could not have been thus promoted on 9-12-1985 was not made by the departmental authority.

10. The copies of the orders dated 6/9-10-1988 rejecting the respondents' representations for the second time do rely on sub-clauses (6) and (7) of Rule 8-B but the aforediscussed aspect of the case was not noted. We presume that the wrong interpretation of sub-clauses (6) and (7) prevented the authority from examining the matter any further. It should have been done. Indeed, nothing has been brought to our notice from the respondent's side to show that this missing exercise was in fact done. Thus the departmental approach obviously suffered from this defect.

11. The next question arises; whether, what the said authority had not done should have been done by the Tribunal for the first time. As the point has not been argued before us that in every such case Tribunal should fill in the lacuna of very important nature; which would be the determining factor in the decision of the case, we would as a general rule hold that it would depend upon the circumstances of each case; whether or not the Tribunal should do this exercise for the first time.

12. However, as a guidance, in this case, it would have been better if for reasons to be recorded the Tribunal had remanded it so as to leave it to the judgment of the departmental authority in the first instance. And if error committed the party concerned would approach the Tribunal for its correction. Such rule 'of procedure will have good effect for the development of a statutory practice in the departmental proceedings-- original, review, representational or appellate; for recording reasons in support of their orders.

13. In this case it cannot be said that no reason is mentioned in the rejection of respondent's representations in the orders dated 6/9-10-1988. But in many other cases we have been seen that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the authority concerned, it would not be illegal either to give reasons; at least, from now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law.

14. In the light of the foregoing discussion we accept these appeals and remand the cases to the departmental concerned for consideration of the representatins submitted from the respondent's side on merits and to decide the same by reasoned orders. And with the further directions that the reasons should also be conveyed to the respondents. The respondents shall be at liberty to amend their representations and include additional grounds either of facts as alleged in two Civil Petitions dealt herein or of law. There shall be no order as to costs.