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Petitioner: ABDUL RASHID VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD,Dr. G.S. Khan,
1994 P L C (C
1994 P L C (C.S.) 1362
[Federal Service Tribunal]
Present: Abdul Razzak A. Thahim, Chairman S.M. Ishaq and Misbah Ullah Khan, Members
Ch. ABDUL RASHID
Versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others
Appeals Nos. 359(R) of 1992 and 71(R) of 1993, decided on 12th April, 1994.
(a) Civil service‑‑
‑‑‑Promotion‑‑‑Appeal‑‑‑Competency‑‑‑question of fitness of a person to be promoted to higher post, was outside jurisdiction of Service Tribunal.
(b) Civil service‑‑‑
‑‑‑‑Seniority‑‑‑Civil servant was placed in the seniority list issued by Competent Authority, junior to his colleagues‑‑‑Civil servant, against such placement had submitted a representation which was never accepted by Competent Authority and the list became final as he did not approach any forum within time to challenge the seniority list‑‑‑Re‑opening of case of seniority of civil servant which had once been decided was not justified in circumstances.
(c) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑‑S. 4‑‑‑Appeal‑‑‑Limitation, question of‑‑‑Examination of‑‑‑Jurisdiction‑‑ Service Tribunal had jurisdiction to examine point of limitation even if it was not taken by either party.
1970 SCMR 170; 1986 SCMR 1213; 1984 SCMR 1014; PLD 1985 SC 153; Ahsan Ali v. District Judge PLD 1969 SC 167; Mian Shafiuddin, Deputy Director and 4 others v. Surat Khan Marri, Director, Regional Information Office, Islamabad and 41 others 1991 SCMR 2216 ref.
(d) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal‑‑‑Competency‑‑‑Representation against disputed seniority list in which civil servant was shown junior to other co‑employees servants, though was filed by civil servant within time before Competent Authority, but no final decision was taken by Authority concerned on such representation and civil servant filed appeal before Service Tribunal against disputed seniority list after more than five years from making representation before competent authority‑‑‑1n absence of any provisions, either in Service Tribunals Act, 1973 or in Civil Servants Act, 1973 to the effect that an aggrieved civil servant was bound to wait for an indefinite period for obtaining final order on his representation to competent Authority, appeal filed by civil servant after delay of about five years was time‑barred and in absence of application for condonation of such inordinate delay in filing appeal, same was liable to be dismissed on that ground.
1970 SCMR 170; 1986 SCMR 1213; Muhammad Younis v., Chairman, WAPDA 1987 SCMR 367; Israr Ahmad Khan v. Government of N.W.F.P. 1990 SCMR 1356; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951; 1970 SCMR 170; 1989 SCMR 1271 and Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division PLD 1990 SC 692 ref.
Fazal Elahi Siddiqi for Appellant.
Hafiz S.A. Rehman for Respondents Nos. 1 and 2.
Dr. G.S. Khan, Bar‑at‑Law for Respondent No. 3.
Date of hearing: 6th May, 1993.
JUDGMENT
MISBAH ULLAH KHAN (MEMBER)‑‑‑These are two appeals by Ch. Abdur Rashid, presently serving as Chief Engineer in the Pak PWD. Since their decision depends on common facts, they are proposed to be disposed of by this consolidated order.
2. The dispute is with regard to seniority between the appellant Ch. Abdur Rashid and Muhammad Riaz, who is respondent No.3 in both the appeals.
3. Ch. Abdur Rashid, appellant, joined as Assistant Engineer (Civil) in the Pak PWD on 27‑4‑1960. Mr. Muhammad Riaz joined as Assistant Engineer (E/M) in the Pak PWD on 16‑11‑1963 subsequent to the appellant.
4. The appellant was promoted to the post of Executive Engineer (Civil) with effect from 7‑6‑1970. Mr. Muhammad Riaz was promoted as Executive Engineer (E/M) earlier with effect from 18‑3‑1968. This shows that in the post of Executive Engineer, Mr. Muhammad Riaz was senior to the appellant though in different cadres.
5. Record shows that the name of the appellant as well as Muhammad Riaz, respondent No.3, were sent together for consideration for promotion to the post of Superintending Engineer Pak PWD (B‑19) by letter dated 7‑1‑1980, which was accompanied by a combined list of officers of the rank of Executive Engineers in accordance with the directions of Establishment Division in its letter dated 14‑12‑1978. As respondent No.3 had been promoted as Executive Engineer earlier to the appellant, his name was shown at S.No. 15 and that of the appellant at S.No.18, in the working list of officers of the rank of Executive Engineers.
6. In the Central Selection Board's meeting held on 17‑3‑1980, it was brought to its notice that "Mr. Muhammad Riaz was absent without leave and had already been charge‑sheeted." Consequently the name of Muhammad Riaz, respondent No.3, was not considered for promotion that the appellant was cleared for promotion by the Board to the post of Superintending Engineer. The recommendations of the Board were accepted, and in consequence he was appointed Superintending Engineer (B‑19) by order dated 25‑4‑1981.
7. When respondent No.3 came to know of the promotion of the appellant over his head he made a protest. In the meanwhile another meeting of the Central Selection Board was held on 24‑1‑1982. However, the proceedings of the Board dated 24‑1‑1982 were not acted upon for the reasons that certain reports recorded on the performance of the respondent No.3 as well as in respect of some other officers were found to be erratic which were countersigned by the same officers. Subsequently, after the quashment of the proceedings of 24‑1‑1982, another meeting of the Board was held on 19‑8‑1982. Respondent No.3 was cleared for promotion and resultantly an order was passed on 28‑3‑1984, which reads as follows: ‑‑
"In consultation with the Establishment Division it has been decided that since the case of Mr. Muhammad Riaz had been deferred in the Centre Selection Board's earlier meeting held on 17‑3‑1980 and he was cleared in the Board's subsequent meeting dated 19‑8‑1982, he will rank senior to the Superintending Engineers who were junior to him as XENs on 17‑3‑1980. As such, the name of Mr. Muhammad Riaz will be shown in the seniority list of Superintending Engineers below Mr. Ghulam Hussain H. Memon and above Mr. Abdur Rashid."
8. A seniority list of the officers of Pak PWD including Superintending Engineers (B‑19) was circulated on 14‑5‑1984, wherein Muhammad Riaz, respondent No.3 was shown senior to Abdur Rashid appellant. 1t appears that the appellant came to know of the assignment of seniority to the respondent No.3 over him by order dated 28‑3‑1984. In consequence he represented on 3‑5‑1984 saying that the Office Order of 28‑3‑1984 conveyed to him by the Director‑General Pak PWD on 12‑4‑1984, adversely affected him and that since he was promoted earlier to Muhammad Riaz respondent No.3, he was entitled to be placed senior to him. In this representation, he also stated that the seniority of all Civil and E/M Officers could not be combined. His representation, however, was not accepted. He also did not challenge the seniority list dated 14‑5‑1984, presumably because he had challenged the order of ante‑dated promotion of Mr. Muhammad Riaz, respondent No.3.
9. For promotion to the post of Chief Engineer, the Central Selection Board in its meeting held on 11‑2‑1991 cleared and recommended the appellant for promotion but recommended the supersession of the respondent No.3. Before the order could be passed by the competent authority on the recommendation of the Central Selection Board in this respect, respondent No.3 approached the High Court by way of Writ Petition No.344/1991 claiming therein that the recommendation of the Central Selection Board was not based on true facts and that the said Board had acted on the Confidential Reports mala fide recorded by Mr. A.W.K. Sherwani as Countersigning Officer downgrading his evaluation from `Good' or `Very Good' to `Average' resulting in reduction of his average score. He also gave the facts constituting mala fide.
10. During the pendency of the writ petition the competent authority, namely, the Prime Minister directed as follows:‑‑
"The case of promotion of Abdur Rashid will be finally decided after the representation of Mr. Muhammad Riaz against his supersession is disposed of following the receipt of comments from the Establishment Division."
11. The Establishment Division, after examining the representation and obtaining a fresh advice of the Central Selection Board and the Works Division, submitted a summary to the Prime Minister highlighting the reports of Mr. A.W.K. Sherwani recorded as countersigning officer on the performance of the respondent No.3. Resultantly, the Prime Minister at the same time approved for promotion to BPS‑20 on 11‑3‑1992, the appellant as also Muhammad Riaz, respondent No.3.
12. After the approval of the names of the appellant and respondent No3 for promotion to BPS‑20, two notifications were issued on 14‑5‑1992 promoting the appellant as well as respondent No.3.
13. In Appeal No. 359(R)/1992, the appellant has challenged the order of promotion of respondent No.3, made by notification dated 14‑5‑1992. The main thrust of attack in this respect is that respondent No.3 had not achieved the required threshold of 70 marks and therefore, he could not be promoted. It was also urged that the recommendation of the Central Selection Board could not be bypassed by the Prime Minister. Still another contention is that the appointment of respondent No.3 was secured by exerting political pressure. The remarks recorded by A.W.K. Sherwani were also pressed into service wherein he as a countersigning officer had not given good reports to respondent No.3.
14. Without going into all these controversies we may point out that question of fitness of a person to be promoted to higher post is outside the jurisdiction of this Tribunal by virtue of proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973, which reads as under: ‑‑
"No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade."
15. The above provision is clear enough to oust our jurisdiction, specially when the Establishment Division, while submitting summary to the Prime Minister, had referred back the case to the Board for reconsideration.
16. For the reasons stating above it is abundantly clear that this Tribunal has no jurisdiction to entertain this appeal and thus it is liable to be dismissed on this ground. alone,
17. In Appeal No.71(R)/1993, the appellant has challenged the placement of respondent No.3 over his name in the seniority list circulated on 30‑11‑1988. In this list, the appellant was shown at S.No.14, whereas respondent No.3 was shown at S.No.13. The appellant's case is that he was promoted as Superintending, Engineer prior to the promotion of respondent No.3 and consequently he would rank senior. In this respect, as already pointed out, the Works Division issued, a letter on 28‑3‑1984, wherein the question of seniority was settled in consultation with the Establishment Division and respondent No.3 was placed senior to the appellant in the cadre of Superintending Engineers. The appellant was informed of this position by letter dated 12‑4‑1984 by the Director‑General, Pak PWD. Accordingly seniority list was issued on 14‑5‑1984 placing the appellant at S.No.20 and respondent No.3 at S.No.19. Against the placement of the appellant junior to respondent No.3, the appellant had submitted a representation on 20‑9‑1984, which representation was never accepted by the competent authority and it became final as the appellant did not approach any forum within time to challenge that seniority list. It is now too late to reopen the case of seniority of the appellant, which has once been decided. Another point raised by the appellant with regard to seniority is that the seniority of Civil and E/M Cadre cannot be combined together. This contention does not find support from any document. On the other hand Appendix VI to the Central Engineering Service Class‑I Recruitment Rules, in para. 3 clearly provides that whereas, the cadres of Executive Engineer and Electrical Engineer would be separate at that level, in the administrative cadre i.e. of Superintending Engineer and Chief Engineer there shall be no separate cadre.
18. For the foregoing reasons this appeal too deserves to be dismissed as being time‑barred, incompetent and without merit.
19. The result is that both the appeals are dismissed without any order as to costs.
20. Parties to be informed.
S.M. ISHAO (MEMBER)‑‑‑21. I have gone through the judgment proposed to be delivered by my learned brother, Mr. Misbahullah Khan, but I regret, I cannot agree to the views expressed by him in Appeal No.71(R) of 1993.
22. It is admitted by the parties that the appellant joined the Pak PWD as Assistant Engineer (Civil) on 27‑4‑1960 prior to respondent No.3 (Muhammad Riaz) who joined as Assistant Engineer (E&M) on 16‑11‑1963. Thereafter, respondent No.3 was promoted as Executive Engineer (E&M) on 18‑3‑1968 while the appellant was promoted as Executive Engineer (Civil) on 7‑6‑1970. Subsequently when the names of the appellant and Muhammad Riaz, respondent No.3, were sent for promotion to the post of Superintending Engineer, Pak. PWD, the former was promoted while the latter was not considered for promotion.
23. The appellant's case is that the Pak. PWD have two cadres one for the Civil and the other for the E&M Engineers ‑ up to the level of Superintending Engineer and thus the persons appointed on Civil or E&M sides are not interchangeable/intertransferable, as the nature of duties performed by them are entirely different.
24. The Rules of 1951 stood repealed by the Recruitment Rules issued by the Ministry of Housing and Works vide their SRO No.897(1)/84, dated 11‑10‑1984 read with the Establishment Division's letter dated 3‑8‑1986. It will be advantageous to reproduce below para. 8 of the Rules whereby 1951 Rules were repealed and the Establishment Division's letter dated 3‑8‑1986 addressed to the Works Division:‑‑
PARA. 8 OF THE RULES:
"The Central Engineering Service Class‑I Recruitment Rules issued under Works Division No.724/186, dated 13th August, 1951 are hereby repealed."
LETTER DATED 3‑8‑1986:
"Kindly refer to your D.O. Letter No.F.2(2)/84‑E‑II, dated 17th July, 1986, addressed to Mr. Aizaz Hussain Zuberi, Joint Secretary, Establishment Division, regarding interpretation of the Recruitment Rules for the Engineering" posts in the Pakistan PWD.
(2) The Recruitment Rules notified in October, 1984 have repealed the Central Engineering Class‑I Recruitment Rules issued in August, 1951. Therefore, the Rules notified in October, 1984 are applicable to all officers including those who were appointed prior to 1984. As regards inter‑transfer of officers from E&M and Civil side, the same is not possible because in accordance with the Recruitment Rules the posts on the two sides are tenable by officers having qualifications in their relevant field, and have their separate lines of promotion as well as prescribed qualifications."
25. It appears from the above that 1951 Rules were repealed and in their place Recruitment Rules of 1984 had come into force and their applicability was made retrospective to "all officers including those who were appointed prior to 1984." However, the net result of para. 3 of 1984 Rules is that a person serving in a specific cadre is eligible for promotion in that cadre only, up to the level of Superintending Engineer. For the sake of facility the extracts from the said para. are also reproduced below:‑‑
Name and BPS of the post
Persons eligible
Condition of eligibility
Deputy Director‑ General (BPS‑20)/ Chief Engineer
Superintending Engineer (Civil) & (Electrical)/ Mechanical (BPS‑19)
17 years' service in BPS‑17 and above or 12 years' service in BPS‑18 in case of direct recruits in BPS‑18 or 5 years' service in BPS‑19 in case of direct recruits in BPS‑19.
Superintending Engineer (Civil) (BPS‑19)
Executive Engineer(Civil) (BPS‑18)
12 years' service in BPS‑17 and above or 7 years service in BPS‑18 in case of direct recruits in BPS‑18.
Superintending Engineer (E & M) (BPS‑19)
Executive Engineer(E/M) (BPS‑18)
‑do
Executive
Engineer (Civil) (BPS‑18)
Assistant Executive Engineer (Civil) (BPS‑17)
5 years' service in (BPS‑17) and person initially appointed to BPS 17 must have passed the prescribed Departmental Examination.
Executive Engineer(E/M) (BPS‑18)
Assistant Executive Engineer (E/M) (BPS‑17)
‑do-
Assistant Executive Engineer (Civil) (BPS‑16)
Sub‑Engineer (Civil) (BPS‑11)
3 years' service in(BPS‑16)
Assistant Executive Engineer (E/M) (BPS‑17)
Sub‑Engineer (E/M) (BPS‑16)
‑do‑
26. A bare perusal of the above clearly shows that the persons appointed as Assistant Executive Engineer (Civil) and Assistant Executive Engineer (E&M) are not interchangeable/intertransferable as the nature of duties, as already stated, are different from each other. Obviously, a man not qualified in E&M cannot perform the functions of that field even if he may have suitably qualified in Civil Engineering and vice versa. Moreover, it has been mentioned is the Establishment Division's letter dated 3‑8‑1986, reproduced above, that promotion to "the posts on the two sides up to the level of Superintending Engineer are to be made from officers having qualifications in their relevant field" which means that Assistant Executive Engineer (Civil) can only be promoted as Executive Engineer (Civil) and similarly/only Executive Engineer 1 Civil) can be promoted as Superintending Engineer (Civil). The promotions in E&M side will also take place in similar manner and only those qualified in E&M Engineering will be promoted as Executive Engineer and Superintending Engineer (E&M), and the posts up to the level of Superintending Engineer are not interchangeable. Therefore, the seniority of these two categories of officers should be maintained separately.
27. The appellant has claimed seniority as Superintending Engineer (BPS‑19) over Muhammad Riaz, respondent No.3, on the ground that he was selected Superintending Engineer (Civil) by the Central Selection Board earlier to him in the meeting held on 17‑3‑‑1980 whereas he (Muhammad Riaz) was cleared by the Board in its subsequent meeting held on 19‑8‑1982 and as such the former would rank senior to the latter. It was maintained that when the appellant was selected by the Central Selection Board on 17‑3‑1980 there were eight posts of Superintending Engineers (Civil) and two posts of Superintending Engineers (E&M). The appellant was selected as Superintending Engineer (Civil) against one of these eight said posts on 17‑3‑1980 while Talat Bashir and Mushtaq Hussain, who were senior to respondent No3, Muhammad Riaz, had been promoted against the two posts of E&M cadre. It was also contended that, in all, there were three posts of Superintending Engineers (E&M) in the Department (one each at Karachi, Islamabad and Headquarters) and against one of these three posts S. Jafar Ali, was already serving while Talat Bashir and Mushtaq Hussain were selected to fill the two slots. Apparently, at the relevant time, it was further contended, there was no other post against which Muhammad Riaz could be absorbed even if he were selected by the Board. However, on the retirement of S. Jafar Ali on 15‑5‑1982, a vacancy in E&M cadre became available against which Muhammad Riaz could be accommodated in 1982. Even the selection by the Board of Mr. Mushtaq Hussain, senior to respondent No.3, was subject to confirmation by the Law Division to the effect that promotion to the posts of Superintending Engineer were to be made on the basis of a combined seniority List as would be clear from the minutes of the Board, the relevant part of which is reproduced below:
"The Works Division informed the Board that only one post of Superintending Engineer in the E&M cadre was available. It was, therefore, decided that Mr. Mushtaq Hussain would be promoted only if the Law Division confirmed that promotions to the posts of Superintending Engineer were to be made on the basis of a combined seniority list."
The question of maintenance of a combined Seniority List shall however, be discussed separately in detail in the paragraphs that follow. Moreover, on a representation made by the respondent No.3 to the Secretary, Establishment Division, the Secretary, Works Division in his D.O. letter No.M 4(6)/80‑II, dated March, 7, 1982 made the following observations :‑
"At that time only two vacancies were available on the E&M sides and against those two vacancies Mr. T.BA. Khan and Mushtaq Hussain were recommended by the C.S.B. for promotion. Both the above- named officers were senior to Mr. Riaz."
Now that it is established that the seniority of XEN (B‑18) has no relevance in so far as the fixation of seniority in BPS‑19 or BPS‑20 is concerned, the advice of the Establishment Division, given in para. 7 of the judgment initiated by my learned brother, reproduced below, cannot be considered valid in view of the 1984 rules, applicable retrospectively: ‑‑
"7 When respondent No.3 came to know of the promotion of the appellant over his head he made a protest. In the meanwhile another meeting of the Central Selection Board was held on 24‑1‑1982. However, the proceedings of the Board dated 24‑1‑1982 were not acted upon for the reasons that certain reports recorded on the performance of the respondent No.3 as well as in respect of some other officers were found to be erratic which were countersigned by the same officers. Subsequently, after the quashment of the proceedings of 24‑1‑1982, another meeting of the Board was held on 19‑8‑1982. Respondent No.3 was cleared for promotion and resultantly an order was passed on 28‑3‑1984, which reads as follows: ‑‑
`In consultation with the Establishment Division it has been decided that since the case of Mr. Muhammad Riaz had been deferred in the Central Selection Board's earlier meeting held on 17‑3‑1980 and he was cleared in the Board's subsequent meeting dated 19‑8‑1982, he will rank senior to the Superintending Engineers who were junior to him as XENs on 17‑3‑1980. As such, the name of Mr. Muhammad Riaz will be shown in the seniority list of Superintending Engineers below Mr. Ghulam Hussain H. Memon and above Mr. Abdur Rashid'."
28. A perusal of the record shows that the question of maintaining a combined Seniority List had come up before this Tribunal in the appellant's Appeal No. 108(R)/1980 and during the course of hearing it was denied on behalf of the Ministry of Housing and Works and the Establishment Division that any combined Seniority List of Executive Engineers had been prepared for the purpose of promotion to the next higher grade, namely, that of Superintending Engineer. The Tribunal observed that "in view of this categorical statement made on behalf of the said respondents, we do not consider it necessary to address ourselves to the task of quashing the alleged combined seniority list."
29. In view of the above facts and circumstances I am of the opinion that the appellant, Ch. Abdul Rashid, who had been cleared/selected as Superintending Engineer (Civil) in the Board's earlier meeting held on 17‑3‑1980 and taken over charge with effect from 25‑4‑1981 against a clear vacancy, stands senior to respondent No.3, Muhammad Riaz, who even if had been cleared in the same meeting of the Board alongwith the appellant would not have been promoted earlier than 15‑5‑1982 as a vacancy of Superintending Engineer (E&M) for him had fallen vacant only on 15‑5‑1982 on the retirement of one senior Superintending Engineer (E&M) S. Jafar Ali. Resultantly, on the basis of this seniority the appellant becomes senior as Chief Engineer (BPS‑20) to respondent No.3, Muhammad Riaz.
30. As regards limitation, I find that the appellant submitted representation on 20‑9‑1984 but subsequently on i1‑10‑1984 the relevant rules were amended clarifying that cadres of Civil Engineering and E&M Engineering are separate up to the level of Superintending Engineer (BPS‑19). He felt satisfied with the said Rules. However, when a seniority list was circulated by the Works Division on 30‑11‑1988 showing respondent No.3 senior to the appellant, he again represented on 26‑12‑1988 to the Secretary, Works Division, which was responded to on merits on 23‑2‑1993. Thereafter, the appellant submitted the present appeal to this Tribunal on 10‑3‑1993, which is within time as the Honourable Supreme Court in the case reported as 1970 SCMR 170 has held that if an appeal is not dismissed as time‑barred it should be presumed that the delay has been condoned.
31. As a result, the appeal deserves acceptance and the question of seniority be settled in the light of discussion…
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