' YOSUF ALI MIRZA, MEMBER-I---Through the instant appeal the appellant has assailed two separate notifications dated 30-11-1991 and 23-4-1998 whereby Respondent Nos.3 and 4 were promoted as Electric Inspectors (B-18) respectively and the final order dated 4-2-1999 passed by Respondent No.1 rejecting appellant's departmental appeal. It is also prayed that official Respondents may be directed to consider the case of appellant for promotion to the post of Electric Inspector (B-18).
2. Facts in nutshell giving rise to the present appeal are that appellant on the basis of 3 years Diploma Engineering was appointed as Electric Sub-Inspector in the year, 1965, and confirmed as such in 1967. On introduction of B. Tech. (Hons) Degree in the year, 1973, appellant with the permission of competent Authority obtained B. Tech. (Hon) Degree in Electrical Engineering in the year, 1983 from Mehran University of Engineering and Technology. The said degree as per appellant was declared at par with B.Sc. Engineering/B.E. Degree. In 1986 two posts of Assistant Electric Inspectors were created and the appellant being senior most holding B. Tech. (Hons) Degree was eligible for promotion but instead Respondent No.3 despite being junior to appellant was promoted vide Notification dated 21-9-1986 to the post of Assistant Electric Inspector (B-17). Appellant challenged the said Notification in his earlier Appeal No.14 of 1987 before this Tribunal. However, during its pendency he was promoted to the post of Assistant Electric Inspector (B-16) vide Notification dated 6-8-1988. Since appellant's grievance was redressed at department level he had withdrawn the said appeal. He then approached the Department for assigning benefit of inter se seniority under rule 13 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
At first instance vide Notification dated 27-2-1997 appellant was treated as Graduate Electric Sub- Inspector and was allowed B-17 w.e.f. 6-8-1988 i.e. The date of his regular promotion to the post of Assistant Electric Inspector. Subsequent thereto vide another Notification dated 2-4-1997 he was allowed inter se seniority w.e.f. 21-9-1986 i.e. The date his junior Respondent No.3 was promoted. He, was, however, not allowed the arrears of salary for the reason that he had not worked against that post.
3. Meanwhile, Respondent No.3 was further promoted to the post of Electric Inspector (B-18) vide Notification dated 30-11-1991 but appellant though senior as claimed by him was not considered.
Being aggrieved he filed representation on 27-3-1998 followed by a remainder dated 27-4-1998 against the promotion of Respondent No.3 and for consideration of his (appellant's) name for promotion, but with no response as yet. Further it is averred that while appellant was pursuing his above representation, one another junior namely Muhammad Saleem Bughio (Respondent No.4) was promoted to the post of Electric Inspector (B-18) by Notification dated 23-4-1998 and once again the appellant though senior was not considered for promotion. Against which appellant preferred separate departmental representation on 21-5-1998. He also filed C.P. No.850 of 1998 before Honourable High Court of Sindh, Karachi against the said promotion which vide order dated 1-9-1998 was disposed of with a direction to the Department to dispose of appellant's two representations after hearing appellant. Despite such directives, the Department failed to pass any orders on said representations, as such, appellant filed Contempt application and when notice of such contempt application was issued, appellant's representation was rejected which order was communicated to him through letter dated 4-2-1999 (received by him on 16-2-1999). It is in these circumstances, appellant has invoked the jurisdiction of this Tribunal.
4. Respondent Nos.2 and 3 in their separate written statements which are also adopted by Respondent No.4 vehemently controverted the claim of appellant and resisted the appeal inter alia, on the grounds that the copy of impugned order dated 30-11-1991 whereby Respondent No.3 was promoted is not annexed with the memo of appeal, appellant challenged the said promotion order after a lapse of 7 years before appellate authority, as such the instant appeal is also time- barred, appellant has challenged two different orders dated 30-11-1991 and 23-4-1998 in one appeal, thus the instant appeal is not maintainable, that B. Tech (Hon) degree was never declared at par with Engineering degree, hence appellant was not eligible for promotion to the post of Electric Inspector and lastly that appeal being time-barred, not maintainable and incompetent is liable to be dismissed.
5. Mr. Mughal, learned counsel for the appellant argued that admittedly appellant was senior to Respondent Nos.3 and 4 but in the year 1986 Respondent No.3 was promoted to the post of Assistant Electric Inspector while appellant was ignored without any reason, which promotion the appellant challenged before this Tribunal in his earlier appeal No.14 of 1987, however, during its pendency appellant was also promoted as such said appeal was withdrawn. Appellant thereafter agitated his claim for benefit of inter se seniority under rule 13 of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which benefit was allowed to him vide order dated 2-4-1997.
He contended that while appellant was pursuing his legal remedy for benefit of inter se seniority at Departmental level, the Respondent No.3 was further promoted to the post of Electric Inspector vide Notification dated 30-11-1991 but once again the appellant was ignored despite being senior to respondent No.3. Against which he filed departmental representation on 27-3-1998. However, before finalization of his representation, Respondent No.4 who too was junior to appellant was promoted to the post of Electric Inspector by Notification dated 23-4-1998. Against which also appellant preferred departmental appeal on 21-5-1998. Both the above said representations were rejected by the Department. He submitted that it is settled law that if for any reason a civil servant was not promoted earlier and was subsequently promoted, he would be deemed to have been promoted in the same batch as his juniors and would also maintain seniority of his batch mates. In support of his contentions he relied upon: (i) 1996 SCMR 850, (ii) 1998 SCMR 544 = 1998 PLC (C.S.)
1278, (iii) 2001 PLC (C.S.) 542, and (iv) 2001 PLC (C.S.) 550.
6. Further, it was argued that appellant had obtained B. Tech (Hon) Degree in Electrical Engineering in the year, 1983, which degree in compliance of Supreme Court judgment passed in Fida Hussain's case reported in PLD 1995 SC 701 was declared at par with B.Sc. Engineering/B.E Degrees and that on the basis of said judgment, the Govt. Of Pakistan, Ministry of Education, vide Office Memorandum dated 17-4-1996 implemented the said judgment and treated B.Tech.(Hons) Degree at par with B.Sc./B.E. Degree from the date of its introduction i.e. 26-10-1973. He had contended that one Azizullah Member, Assistant Electric Inspector who too was ignored had filed Service Appeal No.211 of 1999 before this Tribunal against the promotion of Respondent No.4, which appeal vide judgment dated 27-2-2002 was allowed by this Tribunal, whereby the Notification dated 23-4-1998 of promotion of Respondent No.4 was set-aside being mala fide and that case of present appellant is identical to that of Azizullah Memon, as such the appellant is also entitled to the same relief. On the point of limitation, learned counsel while placing reliance on the case of Anwar Muhammad v. General Manager, Pakistan Railways, 1995 SCMR 950, argued that appellant's departmental appeal against Respondent No.3 was not dismissed on the point of limitation but on merits, hence this appeal filed within stipulated period of 90 days from the date of rejection of departmental appeal is within time.
7. Conversely, learned counsel for Respondent No.3 submitted that neither copy of impugned order dated 30-11-1991 is annexed with memo. Of appeal nor that of seniority list, thus the instant appeal is not maintainable, Moreso, the instant appeal has been filed against two separate impugned orders i.e. One passed in 1991 and the other in 1998, therefore, the instant appeal is not competent.
Next, he stated that the Recruitment Rules for the post of Electric Inspector have not yet been amended by the Department, which provides prescribed qualification for Electric Inspector in B-18 by three modes i.e. By initial recruitment or by promotion from Assistant Electric Inspector possessing degree in Electrical Engineering or Mechanical and Engineering having five years experience as such, or by transfer, on tenure basis from WAPDA or any Govt. Deptt. Of persons, possessing prescribed qualification for initial recruitment, and that since appellant possess B. Tech.
(Hons) degree he was not eligible for promotion. In support of his contention he relied upon un- reported case of Aijaz Ahmed Kazi v. Province of Sindh and others passed in C.A. No.1297 of 1998 by Honourable Supreme Court of Pakistan dated 1-2-2002. He submitted that the Department always maintained separate seniority lists i.e. One for graduate Engineers and the other for Diploma Holders. Lastly, he argued that the appeal is not competent because of multifariousness and mis- joinder of the cause of action.
8. Learned Asstt. A.-G. And Respondent No.4 adopted the arguments advanced by Mr. Ansari.
9. We have considered the above submissions and perused the entire material placed on the record with the able assistance of learned counsel appearing on behalf of the parties.
10. It is the case of appellant that he being senior most Assistant Electrical Inspector was ignored while his juniors Respondents Nos.3 and 4 were promoted, despite the fact that appellant possessed all the requisite qualification for the post of Electric Inspector. As against that, the case of Respondents is that the appellant was not fulfilling the prescribed qualification for the post of Electric Inspector (B-18). It will be advantageous to reproduce the relevant Rules prescribed qualification for Electric Inspector, which reads as under:-- ' Admittedly, the appellant is B.Tech. (Hon), which according to him has been declared at par with B.Sc Engineering/B.E Degree, vide office Memorandum dated 17-4-1996 of Ministry of Education, Government of Pakistan, issued in pursuance/compliance of judgment of Honourable Supreme Court of Pakistan passed in Fida Hussain's case reported in PLD 1995 SC 701.
11. In Fida Hussain's case, the Honourable Supreme Court, specifically held that:- "It is the domain of the Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one grade to another higher grade and whereas it is in the domain of Pakistan Engineering Council to decide, as to whether a particular academic qualification can be equated with another academic qualification, but it has no power to say that civil servants/employees holding particular academic qualifications cannot be promoted to a higher grade. The main object of the Act, as pointed out by one of us (Ajmal Mian, J.) and Saiduzzman Siddiqui, C.J (as he than was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualifications or the working of the engineers in the Government and semi-Government Departments."
' From the simple reading of the above referred paragraph of the judgment of the Honourable Supreme Court, there remains no ambiguity with regard to the extent of jurisdiction of Government and the Council.
12. According to learned for the appellant, the Ministry of Education, Government of Pakistan, vide its office memorandum dated 17-4-1996 issued in pusrsuance/compliance of the above referred judgment of Supreme Court, declared the degree of B.Tech. (Hons) at par with that of B.Sc Engineering/B.E. Degree. Be that as it may, that Office Memorandum applies to the employees of the Departments of the Federal Government and not to the Provincial Government of Sindh as the recruitment rules for Provincial Government are separate. Moreso, the said office Memorandum dated 17-4-1996 has already been challenged by the Pakistan Engineering Council before Honourable Lahore High Court in Writ Petition No.674/1996 on the ground that it is within the domain of the Council to recognize the equalize of the academic degree concerning to Engineering and that they do not recognize B./Tech (Hons.) to B.E. The Lahore High Court by its order dated 15-5-1996 has suspended the operation of letter dated 17-4-1996.
13. Perusal of the record reveals that till today the Government of Sindh has not treated the degree of B. Tech. (Hons,) at par with B.Sc. Engineering/B.E. Degree although the matter remained under correspondence between the Law Department, Irrigation and Power Departmentand the Education Department, but no final decision has yet been made. Very recently, the Honourable Supreme Court of Pakistan in Civil Appeal No.1297 of 1998 (Aijaz Ahmed Kazi v. Province of Sindh and others) decided on 1-2-2002, has observed that, if one kind of degree was equated with other by the Council for purpose of registration, it would not in any manner alter the position also far as qualification prescribed for recruitment in the civil service is concerned by the relevant rules, It was further observed in the said judgment that:-- "6. The recruitment Rules, as has been reproduced above, clearly prescribed that only Electrical Engineer or Mechanical and Electicat Engineer with five years experience was qualified to seek appointment against the said advertised post, therefore, the Tribunal was wrong in holding that the appellant was possessing prescribed qualification, Education qualification could either be relaxed by the competent authority though relaxation can be made in respect of other procedural matters prescribed in the recruitment rules inclusive of requirement to refer the matter to FPSC."
' Since, the degree of B.Tech. (Hons) has not yet declared at par with that of degree in Electrical Engineering or Mechanical Electrical Engineering, by the Irrigation and Powers Department, Govt. Of Sindh, nor the rules for recruitment to the post of Electric Inspector have so far been amended the Department is right in saying that appellant being B.Tech.(Hons) was not entitled for promotion to the post of Electric Inspector (B-18).
14. Besides, above, the instant appeal is neither competent nor maintainable so also it is barred by time. Appellant through the instant appeal has challenged two separate orders i.e. Dated 30-11- 1991 and 23-4-1998 whereby Respondents Nos.3 and 4 were promoted respectively as Electric Inspector. He challenged the order dated 30-11-1991 through his departmental appeal on 27-3-1998 i.e. After nearly 7 years, whereas order dated 23-4-1998 was challenged by him in time i.e. On 21-5- 1998. Initially, appellant challenged the said promotion orders in C.P. No.850 of 1998 before the Honourable High Court of Sindh, Karachi, which vide order dated 1-9-1998 was disposed of with a direction in the Department to dispose of appellant's departmental representations. According to appellant vide order dated 4-2-1999 his departmental appeals were rejected, thereafter he filed present appeal. Perusal of the letter dated 4-2-1999 of S&GAD addressed to Irrigation Department so also letter of Irrigations Department communicating decision to appellant clearly reveals that appellant's departmental appeal dated 23-4-1998 against the promotion of Respondent No.4 (Muhammad Saleem Bughio) was considered and rejected by the competent authority. However, no decision with regard to appellant's departmental appeal against the promotion of Respondent No.3 (Ashfaqullah) was ever communicated to the appellant and it remained pending. In this situation of the matter, the appellant's instant appeal so far Respondent No.3 is concerned is hope- lessly time-barred.
15. Contention of learned counsel for the appellant that appellant's case is identical to that of Azizullah Memon (Appeal No.211 of 1999) decided by this Tribunal' vide judgment dated 27-2-2002, has no substance. In that case both the incumbents were graduate Engineers and the promotion of Mr. Azizullah Memon was deferred on account of one departmental enquiry for which he was exonerated subsequently. It is pertinent to point out that very promotion order dated 23-4-1998 of Respondent No.4 (Muhammad Saleem Bughio) which is challenged in the instant appeal has already been declared as illegal and mala fide and was set aside in above appeal No.211 of 1999, which judgment has been upheld by Honouable Supreme Court of Pakistan in Civil Petition Nos.302-K of 2002 (filed by Muhammad Saleem Bughio) and 449-K of 2002 (filed by Govt. Of Sindh), decided on 24-12-2002.
16. The upshot of the above discussion is that the appeal being devoid of force is hereby dismissed.
No orders as to costs.
17. Announced in open Court.
Given under our hands and the seal of the Tribunal this 26th day of June, 2003.