ABEED ULLAH JAN (MEMBER).-The order is intended to dispose of Appeal No. 19 of 1980, preferred by Mr. Nisar Ahmed Khan, and Appeal No. 20 of 1980 preferred by Mr. Hakimullah Jan against the order of respondent No. 1 dated 22-11-1979 whereby respondent No. 3, namely, Muhammad Yousaf (IV) and respondent No. 4 namely Ghulam Sabir were confirmed with effect from 1-6-1976 while respondent No. 5, namely Khawaja Muhammad, was confirmed with effect from 4-10-1977. The appellant's claim right of confirmation with effect from 1st Juno, 1975 on the basis of having passed the departmental examination earlier than respon--dents Nos. 3, 4 and 5.
2. The facts of these cases are simple and can thus be stated very briefly. The appellants and respondents Nos. 3, 4 and 5 are serving as Divisional Head Draftsman in the Department of Communications and Works. The departmental examination for regular promotion and con-- firmation as Divisional Head Draftsma n was held in 1974. The appellants namely, Nisar Ahmed and Hakimullah Jan, cleared the said examination, whereas respondents Nos. 3 and 4 passed the departmental examination in 1976 and -respondent No. 5 in 1977. After qualifying the departmental examination respondents Nos. 3 and 4 were confirmed with effect from 1-6-1976 and respondent No. 5 was confirmed with effect from 4-10-1977 by respondent No. 1 vide Notification No. 751- 2/F/4477/E-II (1), dated 22-11-1979. The appellants felt aggrieved because, according to them, they had qualified the departmental examination earlier in 1974 and, there--fore, they were eligible for promotion and confirmation with effect from 1-6-1975, against the available permanent posts. The appellants, therefore, separately preferred departmental appeals to respondent No. 2 but no action was taken within 90 days. The appellants, therefore, came to this Tribunal for relief praying that the impugned order may be set aside and they may be declared as eligible for confirmation with effect from 1-6-1975.
3. At the time of arguments, the counsel for the appellants contended that the appellants were holding the posts of Divisional Head Draftsman in officiating capacity with effect from 1-6-1975.
They had also passed the appropriate departmental examination in 1974 but even then they had not been promoted regularly and confirmed whereas the respondents Nos. 3, 4 and 5, did not qualify the said examination with the appellants in 1974, even then they were confirmed in preference to the appellants with retrospective dates.
4. The counsel for respondents Nos. 1 and 2 while controverting the stand of the counsel for the appellants stated that the respondents Nos. 3, 4 and 5 were considered for confirmation strictly on the basis of seniority-- cum-fitness-cum-passing the departmental examination. The respondents Nos. 3, 4 and 5 were officiating as Divisional Head Draftsmen for long time. They had also qualified the requisite departmental examination. They were senior to the appellants. Thus, they fulfilled all the prerequisites and were, therefore, rightly confirmed. The counsel also preferred to para. 84-D of the P. W. D., N.-W. F. P. Code, and stated that no provision exists in the said Code that an official who passes the examination earlier will gain seniority over his seniors.
5. The counsel for appellants while using the right of reply stated that there are many instances in the C 8i W Department where senior persons who bad not qualified the departmental examination were ignored and the juniors who had passed the required examination were promoted and confirmed earlier. The counsel also referred to a circular letter dated 15-4-1974 issued by the respondent No. 1 indicating that if any official failed in the examination, he would lose his seniority.
He further went on to argue that respondent No. 1, in utter disregard of the rules, instruc--tions and practice, confirmed respondents Nos. 3, 4 and 5 in preference to the appellants, without valid reasons.
6. In order to resolve the contradictory stands, taken by the counsel for the parties, we glanced through the office files concerning confirmation. We found that the office had prepared two lists for obtaining order of the competent authority. List `A' showed the names on the basis of seniority which for the benefit of reference is reproduced below :--
7. List 'B' was in two parts. Part-I showed the names of the officials proposed for confirmation on the basis of seniority-cum-passing departmental examination. The position according to this list is shown below :-- Name Seniority Position Muhammad Yousaf (V)17 (respondent No. 3)
Ghulam Sabir204)
Khawaja Muhammad225)
Nisar Ahmad26 (appellant No. It Hakimullah Jan33 (appellant No. 2)
8. The Part-II showed the names of officials proposed for confirma--tion on the basis of earlier clearance of the departmental examination. According to this list, the position of the proposed confirmation was as under :- Name Proposed date confirmation.
TracerD\ManD. H. D./Man Muhammad Yousaf (IV)1-6-19751-6-19751-6-1976 Ghulam Sabir1-6-19751-6-1976 Khawaja Muhammad1-6-19754-10-1977
9. The competent authority while deciding the case observed that the position as obtaining today that all Divisional Head Draftsmen have qualified in the examination although seniors have passed it subsequent to their juniors. The natural presumption would be that so far as their qualifying the examination is concerned, they are at par and their confirma--tion should be in the order of their seniority.
10. The facts set out in paragraphs 6, 7, 8 and 9 above indicate that respondents Nos. 3, 4 and 5 are seniors to appellants. The appellants and respondents Nos. 3, 4 and 5 have passed departmental examination but the appellants have passed it earlier than the respondents Nos. 3, 4 and 5. The appellant did not agitate the question of confirmation before the Tribunal at the time when the said respondents had not yet passed the departmental examination. The competent authority has through a Noti--fication confirmed respondents Nos. 3, 4 and 5. At the time of confirmation, the said respondents possessed all the prerequisites such as (i) Seniority` (ii) Holding of the posts, (i.e)
Availability of the vacancies, (iv) Clear--ance of the departmental examination. We, therefore, consider that the confirmation order issued on 22-11-1979 in respect of respondents Nos. 3, 4 and 5 is perfectly in order. The appellants have assailed the said order on three grounds : (i) The appellants had passed the departmental examination, in 1974 earlier than respondents Nos. 3,4 and 5. (ii) The permanent posts are available since 1975. (i.e) A notice was duly circulated clearly stating that if any official failed to appear in the next examination or he did not get through, he should lose seniority in favour of those who qualified.
11. We have given our due consideration to the contention of the appellants but we find that we cannot agree to it for more than one reasons. Firstly, seniority is an important prerequisite for promotion /confirmation and since the appellants were junior, they could not be confirmed in preference to their seniors. Secondly the departmental examination is a vehicle for increasing the efficiency of the staff which ultimately determines the fitness of the individuals for promotion. The respondents Nos. 3, 4 and 5 were considered sufficiently efficient and were promoted though no regularly because they had not 'passed the departmental examination. Thirdly, the respondents Nos. 3, 4 and 5 had subsequently passed the depart mental examination before their confirmation orders were issued. Fourthly the appellants agitated the question of confirmation at a time when they had, prima facie, no case. They should have come to this Tribunal when 't the said respondents had not yet passed the departmental examination. At that time the provision contained P. W. D. Code No. 84-D read with circular letter dated 15-4-1974 could be used against the respondent Nos. 3, 4 and 5. The appellants seem to have missed the bus by select--ing wrong time for preferring appeal in the service Tribunal. The Tribunal is, therefore, of no avail to them to order deconfirmation of respondents Nos. 3, 4 and 5 who fulfil all the prerequisites required for confirmation nor the Tribunal could ignore and upset the arrangement in force since November, 1979 and declare the impugned orders as illegal and without authority on the simple ground that the appellants has passed the departmental examination earlier than respondents Nos. 3, 4 and 5.
12. Before we part with this judgment, a reference is made to the point raised by the counsel for appellants that there are instances where seniors, who had not qualified the departmental examinations, were ignored and their juniors, who had passed the departmental examinations, were promoted and confirmed. We do not give any weight to this argument because for promotion and confirmation besides departmental examinations, other factors such as seniority, fitness on the basis of confidential reports, recommendations' of the Selection Committee are also considered. No evidence was let by the counsel before this Tribunal that the incumbents in question were otherwise fit for confirmation but since they had not passed the departmental examinations, they were ignored. Secondly, the two cases are not comparable, because in the case quoted, the counsel claimed that the seniors did not pass the departmental examination. This condition does not hold good in case of respondents Nos. 3,, 4 and 5 because they passed the departmental examination before their orders of confirma--tion were issued by the competent authority.
13. For the reasons given above, the appeal fails and is, therefore, dismissed with no order as to costs.
Name Proposed date of confirmation TracerD/ManD.H.D./Man Nisar Ahmad1-6-19751-6-19751-6-1976 Hakimullah Jan1-6-19751-6-19751-6-1976