' RASHID ALI MIRZA, MEMBER.---By this common judgment we would like to dispose of all these 18 appeals as all the appeals involve the same question of fact and law. All the Appellants have filed appeals under section 4 of the Service Tribunals Act, 1973 against impugned orders of different dates. First we would like to deal with the case of Appellant Muhammad Saleem in Appeal No.415
(K) (CS) of 2002.
2. Appellant Muhammad Saleem is aggrieved by Notification dated 10-4-2002 whereby Private Respondents Nos.2 to 23 who are juniors to him were promoted as Assistant Divisional Engineers (B-17) in the Telecommunication Department with effect from 23-4-1999 against which he filed departmental appeal on 10-6-2002 and have received no reply even after lapse of statutory period of 90 days, he filed this appeal under section 4 of Service Tribunals Act, 1973 before this Tribunal on 5-10-2002.
3. From the scrutiny of the appeal it appears that the Appellant was appointed in the service of Erstwhile Pakistan Telegraph and Telephone Department now Pakistan Telecommunication Company Limited as Engineering Supervisor as direct recruitee. Subsequently he was sent for obtaining training of Engineering Supervisor at Regional Telecommunication Training School Karachi and after successful completion of the said prescribed Training Course he was posted in Karachi to serve as Engineering Supervisor on 15-8-1987. In order to improve academic qualification, technical knowledge and quick advancement in service, the Appellant after,seeking permission from the department acquired B.Tech. (Honours) degree in Electrical Technology in the year 1995 from Mehran University of Engineering and Technology subsequently the Appellant has sent his B.Tech (Honours) degree and other required information to the Respondent No.1 through Proper Channel for promotion as Assistant Divisional Engineer (BPS-17) who on receipt of the said documents and other required information and also after verification of genuineness of degree, included the name of the Appellant in the Provisional Combined Seniority List of Graduate Engineers/A.M.I.M. And B.Tech.(Honours) working in below Grade-16 in Pakistan Telecommunication Company Limited. The Appellant has filed photocopy of the Provisional Combined List along with Memo. Of Appeal. As per Seniority List the name of Appellant appears at Serial No.1 as shown at Serial No.28. The Seniority List in question is reproduced hereunder: S.No Name Serial No. in the Seniority List
1. Muhammad Saleem 28
2. Syed Mohsin Raz 37
3. M. Abdul Rahim 41
4. Sh. Irfanullah 42
5. Aijaz Ahmed 46
6. S. Razi Haider 62
7. M. Yaseen Saqib 63
8. Mehmood Khan 64
9. Tariq Haleem 65
10. Inam Hafiz Siddiq 66
11. Khushid A---lam 69
12. Muhammad Anwar Khan70
13. S. Majahid Ali 67
14. Muhammad Zahoor 73
15. Dilawar Khan 74
16. Afzal-ur-Rehman75
17. Khalid Hussain 76
18. Muhammad Akram 79
19. Ghulam Hussain 81
20. Allah Ditto 99
21. Muhammad Arshad 100 22 Masooduz Zaman Siddiqui105 23 Muhammad Aslam 106 ' The Appellant has stated that the cause of elimination of names of the juniors to the Appellant is particularized in para 6 of Memo. Of Appeal. Respondent No.1 use to promote the said Private Respondent as Assistant Engineer and subsequently allowed the status of Assistant Divisional Engineer (BPS-17) with retrospective effect by adopting the policy of pick and choose and to block the promotion of Engineers like the Appellant as is clearly evident from the above facts. Although the Appellant fulfilled all the conditions/qualifications and is senior to all the private Respondent Nos.2 to 23 as show in the Combined Seniority List, yet he has been ignored while the said Respondents have unjustly and unfairly been promoted first time as Assistant Engineer and thereafter were allowed status and pay of Assistant. Divisional Engineer BPS-17 from back dates as is clearly evident from Notifications dated 23-4-1999, 22-10-2001, 11-1-2002 and 1-3-2002. The Appellant has stated that grave wrong and serious injustice has been done to him though he had fulfilled all the requirements, and is senior most employee but he was unlawfully prevented to serve the PTCL in higher post of Assistant Divisional Engineer (BPS-17). The Appellant has stated that it is manifestly clear that he was entitled for promotion as Assistant Engineer and had status of Assistant Divisional Engineer (BPS-17) with effect from 23-4-1999 but he for no fault of his own was wrongfully prevented from rendering service to the PTCL of the said higher position and, as such, he was deprived of his legitimate claim towards arrears of pay and allowances and fixation of his seniority under Finance Division's (Regulation Wing) Islamabad S.R.O. No.1092(I)/95 dated 6-11-1995 whereby Fundamental rule 17 has been amended to the above effect. The Appellant has also filed photocopy of the said S.R.O. Along with Memo. Of Appeal as Annexure-L. He has stated that the Respondent Department at its own or by the order of the F.S.T./Hon'ble Supreme Court of Pakistan granted relief to the private Respondent Nos.2 to 23 who are juniors to the Appellant. In all respects the said benefit was required to be extended to this Appellant automatically under the purview of judgment passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.354 of 1987 Hameed Akhtar Niazi v. Establishment Division and others. Appellant has further stated that if the Service Tribunal or the Hon'ble Supreme Court decide a point of law relating to the terms of service of a civil servant which covers not only the ease of Civil Servant who litigated, but also the other Civil Servants, who may have not taken any legal proceedings, in such case; the dictates and rule of good governance demand that the benefit of such judgment by ServiceTribunal/Supreme Court be extended to other Civil Servants; who may not be parties to litigation instead of compelling them to approach the Service Tribunal or any other forum. He further stated that with a view to above submissions and denial of justice/aggrieved by the impugned Notification dated 10-4-2002, the Appellant preferred a departmental appeal on 10-6-2002 for allowing same benefits as were allowed to his juniors i.e. The private Respondent Nos. 2 to 23 but the same has not been responded even lapse of 90(ninety) days waiting period, hence this appeal. He has prayed that the benefits allowed to the Private Respondent Nos.2 to 23 (junior to the Appellant) by the Respondent- Department as Assistant Engineer and status of pay of the post of Assistant Divisional Engineer (BPS-17) w.e.f.. 23-4-1999 under 5% quota vide Notification No.PDC 11:5-1/99 (b) dated 1-3-2002 may be extended to the Appellant; his further prayer is to direct the Respondents to re-fix the Seniority of the Appellant in the cadre of Assistant Divisional Engineer (BPS-17) over and above the private Respondent Nos.2 to 23 as shown in the lower cadre; declare that the Appellant is entitled for arrears of pay and allowances to the post of Assistant Divisional Engineer (BPS-17) w.e.f. 23-4-1999 when juniors were allowed promotion and status of Assistant Divisional Engineer (BPS-17) as per amendment made in Fundamental rule-17 vide Finance Division (Regulation Wing) Government of Pakistan, Islamabad S.R.O. No.1092(I) /95 dated 6-11-1995; all consequential and back-benefits under the circumstances of the case be allowed.
4. The Respondents filed their Parawise Comments stating therein that in pursuance of the PTCL Board decision dated 11-12-1994, it was decided by the Executive Committee of the PTCL on 11-12- 1998 that the officials acquiring degree in engineering or equivalent during service will be promoted as Assistant Engineer against 75% departmental quota. By implementing the above- mentioned decision, a list of officials acquiring degree in engineering or equivalent was prepared.
First time, the employees of the said category including Appellant were considered for promotion to the post of Assistant Engineer in the DPC meeting held during the month of April, 1999 but the Appellant was deferred due to incomplete requisite information which were necessary for promotion such-like:--
(i) Confirmation of degree from relevant university;
(ii) Whether official obtained NOC from department for doing "study" during service or not;
(iii) Whether study leave was obtained by the official or not.
5. The Respondents have stated that status and pay of Grade-17 was also granted to the promoted AE's/SDO's of such category in pursuance of the decision contained in the Establishment Division 0.M.No.8/2/71-D-1 dated 26-8-1975. The Appellant could not be promoted as Assistant-Engineer along with private respondents as he was not eligible for ante-dated promotion because he was not fulfilling the criteria fixed by the DPC at that time. Now, the criteria for promotion to the post of Assistant Divisional Engineer has been revised by amending the PTCL Service Regulations 1996.
Therefore, the Appellant along with other will be considered for promotion as Assistant Divisional Engineer as per emended rules dated 25-4-2002. The Respondents have raised Preliminary Objections that appeal is not maintainable as it is barred by time. They have stated that the Appellant in the instant appeal is aggrieved by notification issued on 23-4-1999 while he had filed departmental appeal on 10-6-2002 after more than one year.
6. Heard arguments of both the learned Counsel for the parties and perused the record.
7. The learned Counsel for the Appellant argued that Appellant's eligibility for promotion as Assistant Engineer and status of Assistant Divisional Engineer (BPS-17) is undisputed and as such non-consideration of his name along with Respondent Nos.2 to 23 w.e.f. 23-4-1999 is discriminatory and needs to be recalled and he be extended same benefits as were given to the above Respondents (2 to 23). In support of his contentions he placed reliance on judgment of the Tribunal and the Hon'ble Supreme Court of Pakistan in Appeal No.935(K)/99, 936(K)/99, 24(K)/97, 98(K)/97 and S.R.O. 1092(1)95 dated 16-11-1995, and on rule of consistency Civil Appeal Nos.345 of 1987, 143 and 144 of 1991.
8. Learned Counsel for the Respondents contended that the Appellant was considered for promotion but he was deferred due -to incomplete service record and other requisite information.
Further the Appellant could not be granted status and pay of Grade-17 with effect from 23-4-1999 as he was not Assistant Engineer at that time. He also raised plea of limitation and contended that the appeal is barred by time and prayed for its dismissal.
9. First we would like to decide the point of limitation as raised by the Respondents in their Parawise Comments.
10. As regards the point of limitation raised by the official Respondents it has been noted firstly that the case of the Appellant was deferred on account of the investigation about the degree and the permission from the Department for the study. This itself goes to prove that the matter was left pending till the queries which have been made by the Respondents was obtained by them from the concerned University and the Department. Thus the cause of action to the Appellant would arise when his case for granting status and the promotion to the post of Assistant Divisional Engineer would be considered by the Respondents. Further when the case of the Appellant for granting of status to the post of Assistant Engineer BPS-17 was considered by the Respondents and he was granted status of Assistant Engineer in the year 1999 then the cause of action accrued to him and he filed the departmental appeal against deprivation of his legitimate right in accordance with the seniority-cumfitness and on the basis of the degree obtained for the post of Assistant Divisional Engineer from the date his juniors were given. Secondly the departmental appeal filed by the Appellant was not dismissed by the Respondents on the ground of limitation, hence it would be considered that the delay has been condoned by the Department. The case-law relied on this point is 1995 SCM R 950.
11. With regard to the investigation about genuineness of the permission obtained by the Appellant as well as the permission from the Department for study the reply given by the Respondents in their Comments they have not denied specifically the contention made in the Memo. Of Appeal with regard to the obtaining of the degree and its genuineness and so also the permission for study from the Department, therefore, the plea of the Department is not sustainable. Further the Department when gave the status of Assistant Engineers in BPS-17 to the Appellant which shows that their degrees as well as the permission from the Department for study has been accepted and considered. This also proves that the denial of the status as well as the promotion of the Appellant to the post of Assistant Divisional Engineer from the date when his juniors were promoted is patently discriminatory, arbitrary and unjust, hence he is entitled to the same relief from the date i.e. 23-4-1999 when his juniors were promoted.
12. The learned Counsel for the Appellant contended that the Appellant being senior most official in BPS-11/15 and his name was placed at Sr.No.28 of the Seniority List of BPS-1 to BPS-15. He has contended that the Appellant has not been considered for promotion in the first instance as Assistant Engineer and so also denied status and pay of the post of Assistant Divisional Engineer (BPS-17) at the relevant time. The private Respondents Nos.2 to 23 are all junior as specified their downward position in para-6 of the facts of the case and Seniority List yet they have been promoted as Assistant Engineer and allowed the status of Assistant Divisional Engineer (PBS-17) w.e.f. 23-4-1999, thus the Appellant has been harmed in the matter of his promotion under 5% reserved quota and on the basis of equal qualification of B. Tech (Hon's) Degree. The Learned Counsel for the Appellant further contended that the question of Appellant's eligibility for promotion as Assistant Engineer and status of Assistant Divisional Engineer (BPS-17) was undisputed and as such non-consideration of his name along with Respondents Nos.2 to 23 w.e.f.
23-4-1999 being discriminatory need to be recalled and he be extended that same benefit. The learned Counsel for the Appellant contended that the Appellant's Order of promotion w. e. f. 10-4- 2002 after ignoring him continuously and regularly allowing promotions w.e.f. 23-4-1999 to the Private Respondents Nos.2 to 23 who occupied downward positions in the Seniority List as Assistant Divisional Engineer (BPS-17) by adopting the policy of pick and choose being unwarranted, discriminatory, mala fide and contrary to the rules of justice need to be set right according to law.
He has contended that the Appellant was unlawfully prevented to serve the Department/PTCL in higher post of Assistant Divisional Engineer (BPS-17) when his juniors were allowed promotions w.e.f.
23-4-1999. Therefore, the benefits of judgment passed by the Honourable Tribunal and the Honourable Supreme Court of Pakistan in juniors cases in Appeal No.935(K) of 1999 and seniors cases in Appeal No.24(K) of 1997 and 98(K) of 1997 and under purview of S.R.O. 1092(1)195 dated 6- 11-1995, the Appellant is entitled to the said benefits. He has contended that even otherwise, the Appellant under the rule of consistency is entitled to seek justice from the Tribunal under the purview of the judgment passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.345 of 1987 and Civil Appeals Nos.143 and 144 of 1991 dated 17-8-1997.
13. The learned Counsel for the Respondents has made a Statement that his Parawise Comments filed in the instant case be treated as his Arguments.
14. The Respondents in Parawise Comments have stated that the appeal filed is not maintainable and is barred by time. The Respondents have stated in the Parawise Comments that the Appellant was considered for promotion to the post of Assistant Engineer along with Private Respondents but was referred due to incomplete service record and other required requisite information. He has further stated that the Appellant could not be granted status, pay and Grade of BPS-17 w.e.f. 23-4- 1999 after the date when Private Respondents were granted the status and pay of the Grade-17 because he was not Assistant Engineer at that time. The Respondents have stated that the Appellant's promotion against the post of Assistant Divisional Engineer (BPS-17) against 5% quota was meant only for those Assistant Engineers who had Engineering degree whereas the Appellant was not Assistant Engineer at that time, therefore, the question of considering him for the promotion as Assistant Divisional Engineer could not arise from back date. The Respondents have stated that the said list was appropriate in pursuance of the PTCL Executive Board's decision dated 11-12-1998 wherein it was decided to give incentive of promotion as Assistant Engineer to the employees of (BPS-1 to 15) who acquired the Engineering Degree, therefore, the name of the Appellant was included in the list of the said employees. The Respondents have stated Qiat (sic)
Private Respondents were promoted to the post of Assistant Engineer simply because their requisite service information which were necessary for promotion were available while the Appellant was deferred due to lack of following informations:--
(i) Confirmation of degree from relevant University;
(ii) Whether official obtained NOC from department for doing "study: during service or not?
(iii) Whether study leave was obtained by the official or not?
15. The record shows that Private Respondents who are juniors to the Appellant have been promoted while the Appellant has totally been discriminated on both counts i.e. 5% as well as 75% quota whichever is the case.
16. In view of the discriminatory attitude of the Respondent No.1 which is evident from the record, we are of the view that the Respondents have made a wrong approach whereby they have promoted the juniors to the exclusion of the Appellant who is in fact senior to them in all respects but they have given reply that their cases were under investigation at the time of DPC to know as to whether degree acquired by them were in fact genuine or that they had obtained study leave during that period, and at the same time the Respondents have stated that the Appellant was not entitled to promotion to the post of Assistant Engineer against 5% quota and so also he was considered for the promotion as Assistant Engineer against 75% quota, by saying so the Respondents have given two versions and as such they cannot be allowed to approbate and reprobate their own stand and to blow hot and cold at the same time.
17. Before parting with the judgment, it is necessary to bring on record that only Govt. Officials have filed Parawise Comments whereas none of the Private Respondents have filed Parawise Comments in spite of notice.
18. The net result of the entire discussion is that Appeal is accepted. Since it has been proved from the record that the Appellant being senior to Private Respondents has been ignored and the Respondent-Department followed the policy of pick and choose, as such, Respondents are required to prepare Final Seniority List and to place cases of the Appellants before DPC and promote him from the date from which his juniors have been promoted with all legal benefits. No order as to costs.
19. This judgment shall mutates mutandis apply to Appeals Nos.358, 359, 409, 410, 411, 412, 413,414, 416, 417, 418, 438, 439, 440, 443, ' 449 and 452(K)(CS) of 2002 filed by Appellants Muhammad Naeem, Muhammad Fahim, Noman Akhtar, Tariq Mahmood, Jamshad Athar Khan, Syed Matiul Hasnain Jaffri, Faheem Ahmed Khan, Abrar Ahmed, Syed Shujat Ali, Syed Hasan Haider, Nadeem Ahmed Baig Muhammad Asif, Rehan Ahmed Siddiqui, Muhammad Absar Ali, Muhammad Tariq, Muhammad Amir Sarwar and Wakil Badshah.
20. Copies of the judgment be sent to the parties and to the relevant quarters under registered cover under rule 21 of Service Tribunal.