ISLAMABAD: The Supreme Court on Tuesday regretted that the Federal Bureau of Revenue’s (FBR) Directorate General of Intelligence and Investigation (DG-I&I) was running on an ad hoc basis and conducting its affairs apparently in an illegal manner.

The observations came in an order authored by Chief Justice Gulzar Ahmed on an appeal against the Dec 18, 2018 Peshawar High Court judgement that dealt with regularisation of an employee in FBR’s DG-I&I (appellants) which had challenged the PHC order. The department had denied confirmation to one of its employees even though he was officiating on a post for 10 years.

In its judgement, the Supreme Court regretted that such acts of the appellants could not be countenanced or allowed to make its ministerial staff hostage to the appellants’ own arbitrary, whimsical and capricious conduct and play with the employment of its ministerial staff.

“This will amount to allowing premium to the appellants for their apparent bad conduct, which is not mandated by law,” the apex court observed while rejecting the DG-I&I appeal with a directive for the FBR chairman to take appropriate action against the delinquent officials.

Rejects DG-I&I appeal challenging PHC order, directs FBR chief to take action against delinquent officials

The chief justice observed that the case was quite simple since Mohammad Aslam Khan (respondent) was employed as a “sepoy” when there were eight vacancies for direct recruitment to the post of lower division clerk (LDC). But no direct recruitment against the vacant posts was made, and instead the respondent was employed in the office of DG-I&I on Sept 9, 1985.

Later, on the recommendation of the Departmental Promotion Committee (DPC) and with the approval of DG-I&I, the competent authority promoted the respondent through a July 7, 2007 order as LDC on an acting charge basis. The period of probation was mentioned as one year with further period of one year. It was further mentioned that on termination of probationary period, the appointment will be deemed to be held until further orders.

Much after completion of the probationary period, the respondent requested for his confirmation as LDC, but his request was denied. He initially filed a writ petition which was disposed of through a Nov 5, 2013 order, asking the appellants to consider his case for confirmation as LDC.

The SC judgement regretted that it seemed the appellants considered the case of the respondent and denied his request for confirmation as LDC. Yet again, the respondent filed a writ petition, which came to be decided by the PHC on Dec 18, 2018 in which it was held that the respondent will be deemed to be confirmed as LDC (BPS-7), immediately, after completion of probationary period with all service benefits.

Advocate M.D. Shahzad Feroz, representing the DG-I&I, argued that in terms of Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the respondent had no vested right to be confirmed as LDC and in any case there was 10 per cent quota for promotion.

On considering the arguments, the Supreme Court observed, what appeared was that it was self-destructive and also self-serving. It seems that the appellants themselves violated the mandate of Article 27 of the Constitution when they promoted the respondent from the post of sepoy to the post of LDC, on an acting charge basis, against the post specifically reserved for direct recruitment.

Article 27 guarantees that no citizen otherwise qualified for appointment in service of Pakistan will be discriminated on the ground of race, religion, caste, sex, residence or place of birth.

The respondent for almost 10 years served on the post of LDC and when he asked for confirmation, it was refused to him, the court regretted, adding that the appellants took refuge under Rule 8-B. The appellants cannot be allowed to approbate and reprobate at the same time, and in law, they cannot take such position.

The respondent did nothing and could not have done anything to obtain his promotion from the post of sepoy to that of LDC and thus the granting of such promotion to the respondent was a voluntary act of the appellants themselves.

The vacancy of LDC did exist but was meant for direct recruitment. The appellants for their own convenience promoted the respondent to the post of LDC on an acting charge basis and thus cannot refuse confirmation to the respondent for the post of LDC, for it was the appellants’ own voluntary act, the apex court said, adding that the provision of Rule 8-B, as canvassed before the court, will not apply to the present case in the facts and circumstances.

It cannot be imagined that since 2007, when there were vacancies for direct recruitment, no recruitment against such vacancies was made and such vacancies still exist. This is a classical case of failure of administration on the part of the appellants, in that, from 2007 to date, it has not been able to fill up the vacancy of LDC through direct recruitment, the Supreme Court regretted.

The court regretted that it seemed the appellants were running the department not only on an ad hoc basis but also apparently conducting themselves in an illegal manner. Though the rule provides for promotion on an acting charge basis, such rule has been made bona fide, to be used in bona fide situations and for bona fide purposes, and not to exploit the employee, who in the present case, is a ministerial employee and further, to perpetuate the maladministration of the department, which in the present case, is what the appellants are doing, the judgement regretted.

Published in Dawn, September 23rd, 2020