SC concerned over ad hoc appointments in FBR

Says appellants are apparently conducting themselves in an illegal manner

ISLAMABAD:

The Supreme Court has expressed serious concern over the ad hoc based appointments on permanent posts in the Directorate General of Intelligence and Investigation Federal Board of Revenue (FBR).

"Appellants (Directorate General of Intelligence & Investigation FBR) are running the department not only on ad hocism but are also apparently conducting themselves in an illegal manner and such factum is also supported by the letter dated 24.12.2004, by which the appellants ordered the promotion of ministerial staff to next higher posts against available vacancies of direct quota on acting charge basis. Further, by letter dated 30.03.2007, the appellants again ordered the promotion of ministerial staff to the post of Intelligence Officer against the post falling to the share of direct recruitment quota on acting charge basis," said a five-page order authored by Chief Justice Gulzar Ahmed while hearing a petition filed by Directorate General of Intelligence and Investigation FBR against Peshawar High Court’s order for the job confirmation of a lower division clerk (LDC).

There were eight vacancies for direct recruitment to the post of LDC and no direct recruitment against the vacant posts was made.

Respondent Muhammad Aslam Khan was employed as sepoy in the office of Director General Intelligence and Investigation FBR on September 9, 1985.

On the recommendation of the departmental promotion committee (DPC) and with the approval of the director general, the competent authority vide order dated 07.07.2007, the respondent was promoted as LDC on 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 would 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.

Later the respondent approached the PHC for the job confirmation. The high court on December 18, 2018 allowed petition and confirmed him as LDC (BPS-7), immediately, after completion of probationary period with all service benefits. Later, the department approached the apex court against PHC order.

A division bench of the apex court led by CJP Gulzar Ahmed dismissing the department petition noted that though the rule provides for promotion on acting charge basis, but such rule has been made bona fide, to be used in bona fide situations and for bona fide purposes, and not to exploit the employees, 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.

"No such acts of the appellants can be countenanced nor can the appellants be allowed to make its ministerial staff hostage to 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 and conduct, which is not mandated by law."

The order further said it seemed that the FBR departments 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 acting charge basis, against the post specifically reserved for direct recruitment.

The respondent served on the post of LDC for almost 10 years and when he asked for confirmation was refused.

"The appellants took refuge under Rule 8-B ibid. The appellants cannot be allowed to approbate and reprobate at the same time, and in law, the appellants will be estopped from taking such position.

“The respondent did nothing and could not have done anything to obtain his promotion from the post of sepoy to that of the post 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 acting charge basis and thus, cannot be heard refusing confirmation to the respondent to the post of LDC, for it was the appellants’ own voluntary act”

The court clarified that the provision of Rule 8-B ibid as canvassed before it would not apply to the present case in the facts and circumstances.

The CJP also observed that it cannot be imagined that since 2007, when there were vacancies for direct recruitment, no recruitment against such vacancies were made and as per the submission of the learned counsel for the appellants, 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 court directed its office to send a copy of the order to the FBR chairman for taking appropriate action against the delinquent officials.