SHC sets aside appointment of plant protection dept DG

The Sindh High Court (SHC) has set aside the Establishment Division’s notification with regard to the appointment of the director general of the plant protection department.

The SHC also directed the Ministry of National Food Security & Research to immediately issue the notification of appointing the senior-most person as acting DG until a regular appointment is made.

The order came on a petition of Dr Mohammad Tariq Khan against the appointment of the plant protection department DG on June 8, 2022, for a period of three years until the appointment of a regular DG.

The petitioner’s counsel said that the respondent DG was at serial No. 3 of the seniority list, and was admittedly at grade 19, so he cannot be assigned/posted as a BS-20 officer for a period of three years under the garb of Section 10 of the Civil Servants Act.

He said that the post of the DG was vacant for a number of reasons, including non-convening of a meeting of the central selection board (CSB), so the senior-most officer was to be assigned the said post in terms of Rule 8B(1) of the Civil Servants (Appointment, Promotion & Transfer) Rules.

He also said that after assuming the charge, the respondent DG has repeatedly defied the order of the Establishment Division by not referring the names for promotion for the CSB’s meeting, and since he is enjoying a grade-20 post being a junior officer, he cannot act against his own interests.

The respondent DG raised an objection against the maintainability of the petition, saying that the remedy, if any, lies before the Service Tribunal because it is a matter of terms and conditions of service.

He said the government exercised its powers under Section 10 of the 1973 Act, which also provides that any civil servant can be posted on a higher post, and therefore, no exception can be taken to such an appointment.

The federal law officer also supported the impugned notification on the grounds that Section 10 provides for such an appointment, saying that the impugned notification is the best solution until the CSB is convened.

After hearing the arguments of the counsels, an SHC division bench comprising Justice Mohammad Junaid Ghaffar and Justice Adnanul Karim Memon said that if the interpretation of the plant protection department DG and the federal government is accepted, it would not only violate various other provisions of the Act in question but also become a tool to post junior officers on higher posts continuously for a very longer duration of time, and this, in the view of the court, cannot be the intention of the legislation.

The court said that such an action would also defy and deviate from the law settled by the courts, including the Supreme Court, in various cases, whereby any posting on deputation or on acting or look-after basis has been deprecated.

The bench said that this has been used as a tool for an out-of-turn promotion under a so-called stop-gap arrangement lasting for three years, which cannot be justified in any manner.

The court said that the record of the case further reflects that time and again the ministry concerned has been requesting the plant protection department to arrange the relevant documents and performance evaluation reports of the personnel concerned to consider their case for promotion or the appointment of a senior-most director on an acting basis.

However, the bench pointed out, none of these directions have been complied with by the department, and instead, the respondent DG has been permitted to hold his position at BS-20 since June 2022.

The court said that such conduct on the part of the plant protection department and the ministry concerned cannot be appreciated, and that the ministry concerned cannot be held hostage by any incharge of a relevant department.

The bench stressed that in the case of non-compliance, the ministry ought to have taken action against failure on the part of the department concerned, including the person responsible, be it the DG.

The court said that it is also worth mentioning that due to the continuity of this illegal arrangement, a situation has arisen where a junior officer would be asked to write annual confidential reports of his seniors, which not only would be an illegality but may also seriously prejudice the case of such senior officers.

The bench said that an order or notification issued in flagrant violation of Section 10 of the 1973 Act to post an officer of BS-19 on a post of BS-20, and that too for a period of three years, is nothing but an eyewash not to resort to and follow Rule 8B(1) of the 1973 Rules.

The court said that this action deprived an eligible person from holding such a post, even if temporarily, and would definitely not fall within the jurisdiction of the Service Tribunal.

The bench set aside the Establishment Division’s notification, terming it without lawful authority, and directed the ministry concerned to immediately issue the posting order in terms of Rule 8B(1) of the services rules of appointing the senior-most person as the DG on an acting basis until a regular appointment is made by the CSB concerned.