JUSTICE SHAH ABDUR RASHID (CHAIRMAN).--There two appeals--396(L)/1983 by Shahid Akhtar and 397(L)/1983 by Ikram Ali Malik--are being disposed of together, as common questions of law and fact are involved therein.
2. Both the appellants were selected as National Savings Officer in Grade-11 in 1974 According to the terms of their appointment, they were required to pass the departmental examination in two chances before their services could be regularised. Both the appellants appeared in the departmental examination held on 23-2-1975 and 24-8-1975, but failed to qualify. According to their terms of appointment, their services were liable to be terminated, but they were allowed a third chance as a matter of grace. The examination was held on 29-2-1976 and both the appellants qualified therein. Both the appellants were subsequently promoted to Grade-14 on 30- 5-1976 and to Grade-16 on 1-1-1978.
3. While fixing the seniority of the appellants in Grade-11, they were placed junior to all those National Savings Officers who appeared in the examinations held on 23-2-1975 and 24-8-1975 and their seniority among the persons who appeared in the examination held on 29-2-1976 was fixed according to the merit position. The result of this method of seniority was that many persons who joined the service in 1975 or 1976 in batches subsequent to the batch of the appellants became senior to the appellants. Aggrieved by this decision of the departmental authority, the appellants have approached the Tribunal by way of these two appeals.
4. The learned counsel for State has raised a preliminary objection with regard to limitation. We, however, find that in the first instance, the appellants had represented against the seniority lists, but a fresh seniority list was prepared in 1981 which again was challenged by way of representation on 17-1-1981 and the same was rejected by the departmental authority on 27-10-1981. An appeal was filed against this seniority list on 26 11-1981 and that having been rejected on 25-9-1983, the present appeals were filed on 1-11-1983. The delay of one day has been explained in the application for condonation of delay. Since this is a case of seniority and the delay is only of one day, we condone the same and proceed to decide the appeals on merits.
5. The learned counsel for the appellants has argued that in accordance with the instructions issued from time to time, the seniority was fixed of a particular batch on the basis of merit position and that persons belonging to the latter batches who appeared in the same examination are to be placed junior. In this respect, reference was made to Office Memorandam No. F.1 (8) NS-1/72, dated January 21, 1975, para (4) of which reads as follows:- ---(4) Those National savings officers (Grade 11) who failed in an examination but passed in the next following examination will rank senior to those who appeared in the latter examination for the first time and passed the same".
6. No doubt, the above quoted parry provides that persons failing; in the first examination but passing in the second examination shall rank senior to those persons who, for the first time, appeared in the second examination, but the fact cannot be denied that pare (4) contemplates only two examinations. According; to the strict interpretation' of the letter of appointment, and the instructions, a person who does not qualify in two examinations consecutively cannot remain in service and the competent authority had to terminate his service. The appellants failed in both the examinations. The third examination was not held under the rules and instructions, and, therefore, they cannot claim seniority on the basis of passing the third examination. Since the appellants continue to remain in service as a matter of grace on the part of the competent authority, they should have been satisfied with their lot. Speaking strictly, the moment they failed in the second examination, they discontinued to be in service and got a fresh appointment. Though no break in service is involved, nevertheless, seniority cannot be claimed on the basis of an examination which was not in accordance with the rules and the instructions. The grievance of the appellants that they have wrongly been placed junior to the persons who joined service in the later years, is without any substance for the reasons just stated. The seniority assigned to them, therefore, cannot be disturbed.
7. The learned counsel for the appellants quoted some instances in which seniority has been given to the persons alongwith their original batch, in spite of the fact that they appeared in the examination after three to six years. It may be so, but that too was not in accordance with the rules and we understand that the persons aggrieved by their fixation of seniority are already before the higher departmental authority for redress.
8. The net result of the above discussions is that both these appeals fail and are consequently dismissed with no order as to costs.
A.E.