' S. ABDUL JABBAR KHAN (CHAIRMAN).-- Syed Ghulam Jillani Shah and Ghulam Rasul working as Sub-Divisional Officers have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, alongwith Messrs Muhammad Tufail, Maqbool Ahmad, Abdul Rauf Akhtar, Muhammad Nazir, and Bashir Ahmad Nasir, and we vide our judgment dated 15-2-1984, disposed of all the five appeals of M/s. Muhammad Tufail, Maqbool Ahmad, Abdul Rauf Akhtar, Muhammad Nazir and Bashir Ahmad Nasir, as premature, but admitted the case of Syed Ghulam Jilani Shah and Ghulam Rasul, on the strength of the arguments relying on ruling of the Supreme Court of Pakistan reported as PLD 1971 SC 124, that as the earlier judgment of this Tribunal will not be considered a competent judgment in view of the observation of the Supreme Court of Pakistan while disposing of the appeals of Syed Ghulam Jilani Shah and Ghulam Rasul decided as incompetent, therefore, we decided to hear these appeals on merits, particularly on the point of 20$ quota, as other points stood concluded by our earlier judgment, which is no more in the field.
2. In these two appeals, the appellants have impleaded the Secretary to Government of the Punjab, Irrigation and Power Department, Lahore, and Chief Enginneer Irrigation, Multan Region, Multan, as well as Chief Engineer, Irrigation, Bahawalpur Region, Bahawalpur, in their respective appeals, as respondents.
3. By virtue of these appeals, they have prayed that the order of respondent No, 1 dated 15-6-1982, directing respondent No, 2 to revert them from the post of S.D.O. Be set aside and they may be considered as promotees under 20% quota which according to Rules of 1967, they were so entitled.
4. Brief facts of the case are that both the appellants qualified for Diploma in Civil Engineering from the Government School of Engineering, Rasul, District Gujrat were appointed as Overseers (Sub- Engineer) in the years 1955 and 1958, and took charge as Sub-Divisional Officer on 9-11-1981 and 28-12-1981, respectively. These orders were issued by the Chief Engineer Irrigation, Multan as well as by the Chief Engineer Irrigation, Bahawalpur yet the same were issued under the orders of the Secretary, Irrigation and Power Department, a fact which stands demonstrated by the copy of the appointment order, which was forwarded for information to the Secretary concerned, who did not object to the promotion of the appellants as S.D.O. The appellants had been performing their duties to the satisfaction of their superiors, but have become subject of reversion due to the recruitment of Graduate Engineers as S.D.Os. On ad hoc basis and to accommodate them, the appellants have been so reverted. The appellants felt aggrieved against these orders and approached this Tribunal in which they claimed that they were, for all purposes, regular promotees of the said posts, therefore, their reversion orders be set aside. This Tribunal vide its earlier judgment dated 15-11- 1982, dismissed the appeals holding that the appellants were not regular promotees and thus their claim could not be accepted. However, this Tribunal gave observation in which it was stated that the case of the appellants was a case of hardship, as they have served for a pretty long period as Sub-Divisional Officers and their reversion was liable to create frustration as well as difficulties in their life and the Department may find way to accommodate them. Aggrieved against this judgment they went before the Supreme Court of Pakistan, where their Lordships of the Supreme Court of Pakistan held that the appeal in itself was incompetent as the appellants failed to exhaust remedy before the next higher authority and refused to grant Leave for Appeal to them. On the strength of the said judgment, the appellants came before this Tribunal on the plea that in fact, they would like to agitate a new point of facts as well as of law, which were not earlier pleaded both before this Tribunal i,e, their ratio of 20% quota under the West Pakistan Irrigation Engineering Services (Class 11) Rules, 1967. This Tribunal was pleased to accept the point of view of the learned counsel for the appellant that the earlier judgment of the Tribunal would not stand in their way, as the same would also be incompetent in view of the observation of the Supreme Court of Pakistan; and thus allowed them to agitate their grievance through the present appeals, with regard to the strength of 20% which according to them, was sheet anchor of their case, as envisaged in the West Pakistan Irrigation Engineering Services (Class II) Rules, 1967. In fact the grievance now agitated before this Tribunal is that conceding the observation made by this Tribunal in its earlier judgment that the appellants are not regular in service, but at the same time they were entitled to be considered for promotion under the above cited Rules, therefore, it may be adjudicated and direction be given to the respondents to consider them for said promotion in view of the Rules so laid down by the Government itself.
5. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by Mian Bashir Ahmad, Deputy Secretary (Admn.), Irrigation and Power Department, and have perused the entire record of this case with their assistance.
6. Learned counsel for the appellant has submitted that according to rules 8, 9 and 10 of the West Pakistan Irrigation Engineering Service (Class II) Rules, 1967, 20% of the vacancies have to be filled by selection on merit, with particular, reference to fitness for higher responsibilities from among the cadre of the West Pakistan Irrigation Department Subordinate Engineering Service in the Region where the vacancies occur, from among the cadre of Sub-Engineers. They have also relied on Punjab Civil Services (Ratios of Recruitment) Rules, 1973. In rule 2 of the said Rules, definition of service has been given and matter of method of recruitment has been defined. It was further submitted that vacancies should be counted after the promulgation of Rules of 1967 and for that purposes the earlier promotions of the Sub-Engineers before the said date, be excluded and the figures of vacancies be taken into account after 1967; and if it was found that the direct Engineers have been allowed more quota which was due to them, the Sub-Engineers be compensated with the remaining vacancies so available under the said formula.
7. On the other hand while conceding that 20% formula has been fully laid down in the above mentioned Rules for the benefit of promotion of Sub-Engineers but the said class of Sub-Engineers stands fully compensated as they have been allocated more than their dues while promoting them under the 20% quota. However, the learned District Attorney as well as the Deputy Secretary (Admn.), Irrigation and Power Department, assisting him in this case have included pre-1967 promotees and thus have submitted that 96 Sub-Engineers have been promoted against 317 posts and thus their quota has exceeded beyond their entitlement.
8. We have given our anxious thought to the arguments so advanced by the parties and assembled them on one day in the Chamber of Member I, attended to by Member II of this Tribunal to dig out the correct figures regarding the promotions prior to 1967 and after 1967 of the Sub- Engineers in the Department. Before we enter into the facts of the factual figures, we will first of all like to reproduce the Rules on which the learned counsel for the appellant has relied and this- reliance has not been controverted by the learned District Attorney or the representative of the Department:- "THE WEST PAKISTAN IRRIGATION ENGINEERING SERVICES (CLASS 11) RULES, 1967 ' Rule 7. Pre-Integration Vacancies.-- (1) Vacancies in the posts referred to in clause (a) of rule 6 shall be filled as follows:-
(a) Vacancies reserved for promotion under the rules and orders which were in force immediately before the 14th October, 1955, in the integrating unit in which such vacancies exist shall be filled from among persons belonging to such unit and eligible for promotion to such vacancies in accordance with the said rules and orders; and
(b) Vacancies to be filled by initial recruitment under the rules and orders which were in force immediately before the 14th October, 1955, in the integrating unit in which such vacancies exist, shall be filled on all West Pakistan basis in the manner provided in sub-rule (1) of rule 8.
(2) Subject to the provisions of sub-rule (3), for the purpose of determining the seniority of a person appointed by promotion under clause (a) of sub-rule (1), the date when the vacancy occurred to which he is appointed shall be deemed to be the date of his appointment to the cadre of the service: Provided that where the date of the such vacancy is earlier than the date of such persons! Eligibility for appointment thereto the date of his eligibility shall be the date of his appointment to the cadre: Provided further that if the date of appointment, as determined aforesaid in the case of two or more persons is the same, the person whose actual date of appointment is earlier, shall, if not junoir in the next below grade, rank senior to the person whose date of actual appointment is later: Provided also that if both the date of such vacancy and the date of appointment as aforesaid, in the case of two or more persons is the same, the older officer, if not junior to the younger officer in the next below grade, shall rank senior to the younger officer.
(3) A Temporary Engineer appointed to a post in the cadre under the provision of this rule shall count his seniority from the date of his continuous appointment as Temporary Engineer, and for the purposes of sub-rule (2) be deemed to have been appointed to the cadre with effect from the date of his continuous appointment as Temporary Engineer: Provided that Government may, in consultation with the Commission, for any sufficient reason, fix, in the case of a Temporary Engineer, any later date for such purposes.
' Rule 8. Pre-1963 Vacancies.-- (1) Vacancies in the posts referred to in clause (b) of rule 6 and clause (b) of sub-rule (1) of rule 7 shall be filled as follows:
(a) eighty per cent of such vacancies shall be filled on the recommendation of the Commission from among officers, holding at the time of the coming into force of these rules, posts of--
(i) Assistant Engineers, or other Class II Engineering Posts in an officiating capacity;
(ii) Temporary Engineers; and
(iii) after all Temporary Engineers considered suitable, in consultation with the Commission for appointment in the cadre have been absorbed, from among Supervisors of the former Sind who are Engineering Graduates and are officiating as Sub-Divisional Officers; and
(b) twenty per cent of such vacancies shall be filled by selection on merits with particular reference to fitness for higher responsibilities from among the cadre of the West Pakistan Irrigation Department Subordinate Engineering Service for the Region where the vacancies occur; provided that no person shall be eligible for appointment to the service under this clause unless he holds a degree in Engineering from a recognized University or possesses an equivalent qualification or a diploma or certificate of Overseer ship obtained from a recognized Institute after undergoing at least two years' course and training therein.
(2) Subject to the provisions of sub-rule (3) the inter se seniority of the persons appointed under sub-rule (1) shall be determined with reference to the respective dates of their continuous appointment to a post in the cadre: Provided that--
(a) officiating Assistant Engineers and officiating holders of equivalent posts appointed to the cadre shall rank senior to Temporary Engineers appointed to the cadre in the same year; and
(b) a Temporary Engineer appointed to the cadre shall rank senior to a Supervisor of former Sind appointed to the cadre in the same year.
(3) A Temporary Engineer appointed to a post in the cadre under the provisions of this rule shall count his seniority from the date of his continuous appointment as Temporary Engineer, and for the purposes of sub-rule (2), be deemed to have been appointed to the cadre with effect from the date of his continuous appointment as Temporary Engineer: Provided that Government may, in consultation with the Commission, for any sufficient reason, fix in the case of a Temporary Engineer, any later date for such purposes.
(4) Where the seniority of two or more members of the Service, as determined in accordance with the provisions of sub-rules (2) and (3) is the same, the older officer shall, if not junior to the younger officer in the next below grade, rank senior to the younger officer. Rule 9. Post-1963 Vacancies.--(1)
Until the officers holding posts in the temporary addition to the cadre have been absorbed in the cadre, vacancies in the posts referred to in clauses (c) and (d) of rule 6 shall be filled as follows:--
(a) thirty per cent of such vacancies shall be filled from among holders of the posts in the temporary addition to the cadre;
(b) twenty per cent of such vacancies shall be filled by selection on merit with particular reference to fitness for higher responsibilities from among the cadre of the West Pakistan Irrigation Department Subordinate Engineeing Service in the Region where the vacancies occur: provided that no person shall be eligible for appointment to the cadre of the service under this clause unless he holds a Degree in an Engineering from a recognized. University or possesses an equivalent qualification or a diploma or certificate of Overseership obtained from a recognized Institute after undergoing at least two years course and training therein; and
(c) the remaining such vacancies shall be filled by initial recruitment in accordance with the provisions of sub-rule (5) for which holders of the posts in the temporary addition to the cadre shall also be eligible. (2) After all the officers holding posts in the temporary addition to the cadre have been absorbed, recruitment to the service shall be made--
(a) eighty per cent by initial recruitment in accordance with the provisions of sub-rule (5); and
(b) twenty per cent of such vacancies shall be filled by selection on merit with particular reference to fitness for higher responsibilities from among the cadre of the West Pakistan Irrigation Department Subordinate Engineering Service in the Region where the vacancies occur; provided that no person shall be eligible for appointment to the cadre strength of the Service under this clause unless he holds a dergee in Engineering from a recognized University or possesses an equivalent qualification or a diploma or certificate of Overseership obtained from a recognized Institute after undergoing at least two years course and training therein.
(3) Vacancies to be filled in accordance with the provisions of clauses (a) and (b) of sub-rule (I) shall be filled in first, and the vacancies to be filled by initial recruitment under the provisions of clause (c) of sub-rule shall be filled thereafter.
(4) Vacancies to be filled under the provisions of clauses (a) and (b) of sub-rule (1) shall be filled by selection on merit with due regard to seniority from among the officers eligible for appointment to such vacancies.
(5) Vacancies to be filled by initial recruitment under the provision of clause (c) of sub-rule (1) shall be filled in the following manner:--
(a) twenty per cent. Of such vacancies shall be filled on merit from among candidates domiciled in any part of West Pakistan; provided Government may from time to time, by notification in the official Gazette, increase the percentage of vacancies to be filled under this clause; and
(b) the remaining vacancies shall be reserved for bona fide residents of the Zones specified in the Appendix in proportion to their population according to the latest census figures: provided that if Po suitable candidate is available from Zone to which a vacancy is allocated under this clause, the vacancy may be filled in the manner provided in clause (a).
(6) The inter se seniority of the persons appointed to the posts in the cadre of the Service under this rule subject to the provisions of sub-rules (7) and (8) be determined with reference to the respective date to their continuous appointment: Provided that if the date of continuous appointment of two or more such persons is the same, the older officer, if not junior in the temporary addition to the cadre or in the case of persons promoted from the West Pakistan Irrigation Department Subordinate Engineering Service, in the next below grade, shall rank senior to the younger officer.
(7) A Temporary Engineer appointed to a post in the cadre under the provisions of this rule shall count this seniority from the date of his continuous appointment as Temporary Engineer, and for the purposes of sub-rule (8) be deemed to have been appointed to the cadre with effect from the date of his continuous appointment as Temporary Engineer: Provided that Government may, in consultation with the Commission, for any sufficient reason, fix, in the case of a Temporary Engineer, any later date for such purposes.
(8) The inter se seniority of persons appointed by initial recruitment under this rule shall be determined in accordance with the order of merit assigned by the Commission: provided that persons selected for appointment in an earlier selection shall rank senior to the persons selected in a later selection.
' Rule 10.-- ' Appointment in the posts in the temporary addition to the cadre subject to the provisions of sub rule (1) of rule 8 all officiating .Assistant Engineers, persons holding other Class II Engineering posts in the Department in an officiating capacity at the time of coming into force of these rules, Temporary Engineers arid Supervisors of the former Sind who are Engineering graduates and are officiating as Sub-Divisional Officers who have been considered fit by the Commission for appointment to the Service but could not be appointed for want of vacancies shall be appointed to the posts in the temporary addition to the cadre."
' Similarly there is no dispute in the application of Punjab Civil Services (Ratios of Recruitment)
Rules, 1973, as both the parties have relied on the said Rules. It is also reproduced below for ready reference:-- "Method of recruitment.-- Notwithstanding anything contained in any set of Service/Recruitment Rules in their application to the Province of the Punjab whereby certain portion or per centage of vacancies in any services or post are to be filled in one manner, the ratio of recruitment shall be applied to the total number of the posts in the cadre so as to maintain the prescribed percentage in the overall strength of the cadre and not to the actual vacancies existing at a given time."
9. There are two main issues in this case, which are to be resolved by us and after the resolution of the same no ambiguity will remain and the entire position will become crystal clear:
(1) Whether the respondents are justified to make calculation of 20% quota vis-a-vis the vacancies so available in favour of the appellant by including the pre-1967 promotees from their class or not?
(2) Whether the word post or vacancy is synonymous or they give different meanings in the issue involved. If it is found that they are different in connotation, then what would be the number of vacancies available for the appellants class for their future promotions?
10. Before settling this issue we will like to mention at this stage that there can be possibly no dispute about the established fact as envisaged by the Rules so quoted by us i,e, Rules 8, 9 and 10 of the West Pakistan Irrigation Engineering Services (Class 11) Rules, 1967, that the Sub-Engineers have been allocated quota of 20% which in the earlier years used to be 50% and was later on reduced to this figure. This fact stands fully established by the ruling of the Rules itself. We are in agreement with the arguments of the learned counsel for the appellant that as the principle of 20% quota has been settled under the Rules of 1967, which rule being prospective in nature, the respondents are under obligation to calculate and find 20% vacancies available for the appellants class of Sub-Engineers only after 1967 and not by including the figures of earlier promotees, which stood promoted under different rules and under different principle.
11. With regard to the issue whether the word post or vacancy is synonymous in nature or it is bit different in meaning for this purpose we rely on our own judgment in case of Manzoor Elahi v. I.-G.
Police 1982 PLC (C.S.) 155 relevant portion is quoted below:-- "There is an obvious distinction between post and vacancy because there can be many vacancies over a period of time against one and the same post. For example if there is one post and the incumbent resigns, a vacancy occurs. Another vacancy of the same post may occur, if and when the next incumbent retires or dies or vacates the post otherwise."
12. We have taken into account the figures so formulated by the parties after assembling in the Chamber of Member-I of the Tribunal and find that according to the appellants, there are 260 vacancies which become available after 20-3-1967 and according to 20% share to their class, the number of vacancies in their favour will figure at 52 whereas out of these 52 ten have been duly promoted but the remaining 42 vacancies remain available for promotion from among the appellants class. We have positively ignored the number of vacancies and figures given by the respondents because the same are based on pre-1967 vacancies promotions which we have not accepted as valid in the earlier part of our judgment.
13. In the light of the above detailed analysis of the case, we proceed to accept the appeals of these two appellants and settle the issue so indicated above in the earlier part of our judgment and direct that the appellants alongwith other Sub-Engineers of their class be considered for promotion on merits, under the Rules so laid down in this behalf from 20% quota which is so available to them. The impugned orders of respondent No, 1 dated 15-6-1982, as well as of respondent No, 2 are set aside. Resultantly the appeals succeed in the light of the above observation. However, there will be no order as to costs.