' NASIR-UL-MULK, J.---This appeal by leave of the Court is directed against the judgment of the Punjab Service Tribunal dated 12-12-2001, dismissing the appellant's appeal wherein he prayed for promotion to the post of Superintendent w,e,f, 27-10-1993, with all consequential benefits.
2. The appellant was appointed as Steno typist (BPS-8) on 27-3-1983 in the Department of Irrigation and Power, Government of Punjab. During his probation the post of Steno typist was upgraded to BPS-12 and redesigned as Stenographer. Thus upon completion of his probation, he was appointed as Stenographer. Subsequently, in the year 1992, he was granted selection grade (BPS-15). When a post of Superintendent in the Department was due to become vacant on 10-10- 1993 on the account of retirement of one, Javed Akhtar, the appellant moved an application on 5- 10-1993 for his promotion to the said post, on the ground that according to the combined seniority list of Assistants and Stenographers as it stood on 1-1-1987, the appellant's name appeared at serial No, 23 and was the senior most amongst those in the line of .Promotion. This application was turned down on 29-11-1993 on the ground that as the appellant was promoted as Senior Scale Stenographer on 7-11-1992; he had yet to complete five years service on that post, a requirement for promotion to the rank of Superintendent. The appellant filed representation against this order on 28-12-1993. Receiving no response, he filed service appeal before the Tribunal on 12-4-1994, which was dismissed by the impugned judgment.
3. Leave to appeal was granted to re-examine whether the appellant's appeal before the Tribunal was barred by time and whether the appellant's promotion was to be considered under the 1962 Rules or in accordance with the new Rules of 1998.
4. To appreciate the arguments of the counsel for the parties in the light of the proposition of law set out in the leave granting order, it would be relevant at this stage to take a look at the rules relating to promotion to the post of Superintendent in the Irrigation Department. The original Rules laying down conditions of service of the ministerial employees in the Department were called 'The West Pakistan Irrigation Department Ministerial (Regional Offices) Service Rules, 1962'. Rules 5 and 7 related to the appointment and promotion of the employees, details whereof were laid down in the Appendix to the Rules. For the post of Superintendent the method of recruitment was by way of promotion of Assistants and Stenographers with at least five years experience from a common seniority list of Assistants and Stenographers maintained for the purpose of promotion. These Rules were repealed and replaced by 'The Punjab Irrigation and Power Department Ministerial Service (Zonal and Circle Offices) Rules, 1998'. The only relevant change made was that instead of Stenographers Senior Scale Stenographers with five years experience were made eligible for promotion to the post of Superintendent along with assistants.
5. The case of the appellant as canvassed by the learned counsel is that since the appellant became due for promotion in the year 1993, his promotion is to be considered under the 1962 Rules and not the 1998 Rules. That according to the former Rules, the appellant being a Stenographer at the relevant time was entitled to be promoted being the senior most awaiting promotion. That the said rules did not create any past for Senior Scale Stenographers. The learned counsel referred to the advice of the Government of Punjab, Information Department, to the Irrigation Department given in December, 1990, wherein it was stated that since under the scheme of Basic Pay Scale, the nomenclature of the two posts have been changed to those Stenographers and Senior Scale Stenographers, only the latter are eligible for promotion to the post of Superintendent. The Irrigation Department was further advised to reflect this change by suitably amending the Rules, to bring it in conformity with the Punjab Civil Servants Act, 1974. The learned counsel argued that the appellant was denied promotion on account of this advice wherein it was expressly mentioned that the Rules required amendment. That since the Rules were not amended until the year 1998 the appellant's promotion in the year 1993 was to be made in accordance with the Rules of 1962. As regards the question of limitation, the learned counsel contended that the appellant had made an application before the post of Superintendent became vacant and the dismissal of that application on 29-11- 1993 was the adverse order against which he made representation within time, on 28-12-1993, to the Secretary of the Department. That having not received any response to the representation, the appellant filed service appeal on 12-4-1994 within 120 days from the date of making representation.
Thus, it was contended, that the Tribunal had erred in holding that the appellant's appeal was barred by time.
6. Responding to the above arguments, Mr. Mudassar Khalid Abbasi, Assistant Advocate-General, Punjab, and Mian Mahmood Hussain, Advocate Supreme Court, appearing on behalf of respondent No,5, Muhammad Saeed, pointed out that in years 19,83, 1985 and 1986, the Governor of Punjab exercising powers under section 23 of the Punjab Civil Servants Act, 1974, had amended the Rules made applicable to all the Departments of the Government , creating a new post of senior scale Stenographer (BPS-15) while retaining the post of Stenographer (BPS-12). It was argued that it was in accordance with these Rules, that the appellant was granted the post of Senior Scale Stenographer. That thus in the year 1993, the appellant being Senior Scale Stenographer, was eligible for promotion only if he had the requisite five years experience in that scale to his credit. It was argued that notwithstanding the replacement of 1962 Rules by 1998 Rules, the notification of the years 1983, 1985 and 1986 were applicable to all the Government Departments in Punjab including the Irrigation Department.
7. The appellant's case for the purpose of promotion to the post of Superintendent will depend upon the Rules applicable to him in the year 1993. The two relevant Rules are, as stated above, of 1962 and 1998, on which reliance is placed by the appellant and the amendments brought about in the years 1983, 1985 and 1986, on which the case of the respondents rests. Undoubtedly, under the 1962 Rules, made especially for the Irrigation and Power Department, there was no mention of Senior Scale Stenographer and promotion to the post of Superintendent was to be made from combined seniority list of Stenographers and Assistants. These Rules for the Irrigation and Power Department were entirely replaced by the 1998 Rules, wherein the post of Senior Scale Stenographer was also incorporated and promotion to the post of Superintendent was to be made from Senior Scale Stenographers and not Stenographers. In between these two Rules, the Governor of Punjab, in exercise of the powers conferred upon him by section 23 of the Punjab Civil Servants Act, 1974, amended the Rules in the year 1983, whereby the post of Senior Scale Stenographer was introduced and promotion to the post of Superintendent was to be made from the Senior Scale Stenographers. These Rules were further amended in the years 1985 and 1986 but as far as the method of the said promotion, the Rule remained unchanged. These Rules were made applicable to all the Government Departments of Punjab, which obviously included the Irrigation and Power Department. The 1962 Rules thus stood amended by implication. The learned counsel for the appellant had referred to the advice of December, 1990 given by the Government of Punjab, Services, General Administration and Information Department, to the Irrigation and Power Department, stating that the service Rules of the latter Department needed to be amended so as to reflect the change, to include the post of Senior Scale Stenographer, from which promotion is to be made to the post of Superintendent. This advice, however, does not mean that the 1983 amendment in the Rules remained inapplicable to the Irrigation and Power Department. The advice of changing Rules was meant to remove any confusion in the Irrigation Department regarding promotion to the post of Superintendent. The advice explicitly stated that the promotions were to be made in accordance with the changed Rules. It was made clear that under the scheme of Basic Pay Scale the original posts of Stenographer and Steno typist have been changed to those of Senior Scale Stenographer and Stenographer, respectively. The 1998 Rules relating to the Irrigation and Power Department were replacement of the 1962 Rules and the change already made about by the 1983 amendment were reflected therein. It cannot be said that the change regarding promotion in the Irrigation and Power Department was made for the first time in the year 1998. It was already in existence since 1983 and thus expressly incorporated in the year 1998.
8. We have also noted that the appellant had already availed the benefit of the 1983 Notification and was promoted as Senior Scale Stenographer. This is reflected in some of the applications that the appellant had made and clear from the Punjab Service Tribunal in the case of Muhammad Saeed v. Chief Secretary, Government of Punjab (Appeal No,13 of 1993) in which the promotion of Muhammad Amin (present appellant) to the post of Senior Scale Stenographer was successfully challenged. Thus notwithstanding the Rules of 1962 the appellants had at a point of time been promoted to the post of Senior Scale Stenographer before 1993, and had held the post at the time he sought promotion.
9. As regards the question of limitation to the filing of appeal before the Tribunal, we accept the explanation put forth by the learned counsel for the appellant, which, need not be repeated, and hold that the appeal was filed within time. However, as we have held that the appellant has no case on merits, the appeal is dismissed.
C.M.As. Nos. 3471, 3476, 3519 and 3532 of 2010 ' As the main appeal is dismissed, these applications are also disposed of.