GULZAR. AHMED, J.---Learned ASC for the petitioner has made two submissions one that FR-17 makes express provision for granting of seniority in case of supersession and subsequent promotion and further Rule 3(c) of the Civil Servants (Seniority) Rules, 1993, is ultra vires to the provision of Civil Servants Act, 1973.
2. We have considered the submission of the learned ASC for the petitioner and have gone through the record of the case.
3. The petitioner had filed a service appeal before the Federal Service Tribunal against order dated 21.10.2010 by which his request for inter se seniority as Inspector (BPS-16) was declined. The service appeal of the petitioner was dismissed by the Service Tribunal by the impugned judgment dated 14.07.2016. The petitioner was working as Sub-Inspector (Investigation) in BPS-14 in the FIA. On 02.03.2009, he was superseded by six Sub-Inspectors (Investigation) of BPS-14 and further on 08.08.2009 another batch of 18 Sub-Inspectors superseded, the petitioner. Such supersession was not challenged by the petitioner at that time.
4. Be that as it may on 25.05.2010, the petitioner was promoted as Inspector (Investigation) (BPS-16) and on assumption of such promoted office, the petitioner made representation to the department, which as noted above was, declined by the department. The Service Tribunal in the impugned judgment has dealt with the reasons on the basis of which petitioner was superseded and in paras 6 and 7 of the impugned judgment, the Tribunal has made the following observation:- "6. It is an admitted position that appellant was considered twice for promotion by the Department Promotion Committee, but superseded on each occasion by the committee on account of many factors contributory to including the reason as enumerated ad-seriatim in para-4(i-iv) supra, resultantly his juniors became senior to him. It is pertinent in the context of the appellant's contention that this Tribunal vide judgment dated 09.05.2016 expunged the adverse remarks recorded in the Performance Evaluation Report for the year 2004. Be that as it may, the supersession was approved by the Department Promotion Committee in its successive meetings held on 02.03.2009 and 08.08.2009 resultantly the appellant could not regain his inter se seniority.
In this context, Section 3(c) of the Civil Servants (Seniority) Rules, 1993, being relevant, is reproduced hereunder as:-
(c) Civil servants eligible for promotion who could not be considered for promotion in the original reference in circumstances beyond their control or whose case was deferred while their juniors were promoted to the higher post, shall, on promotion, without supersession, take their seniority with the original batch."
Underlining is ours.
7. In the presence of express provision of Rule 3(c) ibid, the appeal for regaining inter se seniority merits no consideration and is hereby dismissed with no order as to costs."
5. We have gone through the provision of FR-17 and are unable to agree with the counsel for the petitioner for that the provision of FR-17 deals with the case of drawing pay and allowances attached to tenure of a post with effect from the date when the duties are assumed of that post and shall cease to draw them as soon as he ceases to discharge those duties. The proviso to this Rule provides for a situation where the civil servant who was entitled to be promoted from a particular date but for no fault of his own wrongfully prevented from rendering services in the higher post shall be paid the arrears of pay and allowances of such higher post through proforma promotion or upgradation by ante-dated fixation of seniority. The case before us is neither of a tenure post nor is a deferment case nor that of petitioner being not promoted from a particular date for no fault of his own. The petitioner was deliberately superseded and such supersession was also endorsed by the Departmental Promotion Committee. The Rule FR-17 as relied upon by the counsel for the petitioner therefore, is not applicable to the facts and circumstances A of the present case.
5(sic.) As regard the second contention of the learned ASC for the petitioner that Rule 3(c) is ultra vires the provision of the Act, we are afraid that such submission was not canvassed by the petitioner before the Service Tribunal and same cannot be allowed to be raised before this Court for the first time. No point of public importance in terms of Article 212 of the Constitution is raised.
The petition is therefore, dismissed and leave refused.