S. ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Abdul Majid Mirza, Ch. Ahmad Din, Abdul Karim, Muhammad Afzal Cheema, Manzoor Ahmad Cheema, Malik Muhammad Mukhtar, Sh. Akhtar Hussain, Ch. Ali Muhammad and Muhammad Abdus Sattar, all Sub-Divisional Officers, Irrigation and Power Department have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974 in which they have prayed that their seniority be ordered to be fixed in Class II as Assistant Engineers from the dates of their continuous officiation in that grade and they may also be ordered to be considered for promotion to the post of Executive Engineer in Grade-18.
2. After obtaining Diplomas from School of Engineering, Rasul, all the appellants joined service of the P. W. D. , Irrigation Branch of Government of Punjab as Overseers, on dates much before integration and all of them were confirmed as such. They were also promoted as Officiating Sub- Divisional Officers against substantive posts of Assistant Engineer under the then Punjab Service of Engineers (Class II) (Punjab Works Department, Irrigation Branch) Rules, 1941. The dates of their promotions are as follows:-
(1) Mr.Abdul Majid Mirza23-12-1959
(2) Ch. Ahmad Din.26-4-1960
(3) Abdul Karim Mirza.25-12-1961
(4) Mr. Muhammad Afzal Cheema.23-12-1963
(5) Mr.Manzoor Ahmad Cheema.14-12-1961
(6) Malik Muhammad Mukhtar.23-4-1966
(7) Sh. Akhtar Hussain.3-10-1964
(8) Ch. Ali Muhammad.23-4-1966
(9) Mr. Muhammad Abdus Sattar.3-5-1969 Their promotions took place with the prior approval of the then West Pakistan Public Service Commission which has also been placed on record. Since the above dates they are continuously working as Sub-Divisional Officers.
3. Appellants have given their salient service particulars in Paras 1, 2 and 3 of their appeals which have been admitted by the Government in the written statements filed by it. Accordingly the following facts of Case No.118/58 of 1985 which stand admitted by the Government and have vital bearing on the case are reproduced below:-
(1) "In fact appellant's promotion as Sub-Divisional Officer was a promotion to the rank of Assistant Engineer under the then Punjab Service of Engineers Class II (Public Works Department, Irrigation Branch) Rules, 1941."
(2) "The term Sub-Division or the Sub-Divisional Officer came into vogue as an administrative convenience without having any legal sanctity backed by the statutory rules framed by the competent authority. Therefore, the promotion of appellant No.1 holding the post of a permanent Sub-Division was for all intents and purposes the promotion to the rank of Assistant Engineer."
(3) "Keeping in view the statutory provisions of Class II Rules of 1941 the promotion of appellant No.1 was for all intents and purposes to the rank of Assistant Engineer in Officiating capacity holding the charge of a permanent Sub-Division in a substantive capacity. Since his appointment was against a substantive vacancy and he was holder of the charge of a permanent Sub-Division, his case was sent for approval to the Public Service Commission and after the requisite scrutiny of the record he was approved by the Public Service Commission on 5-4-1961."
(4) "The term "Assistant Engineer" as defined under Rule 2(h) of Class II Rules of 1941 is as follows:- "'Assistant Engineer' means the Member of the Punjab Service of Engineers, Class II (Irrigation Branch)."
(5) "The appellant No.1 crossed the Efficiency Bar on 7-1-1967 in the scale of Rs.350-35-525/40-925.
This pay scale was for the post of Assistant Engineer. On 24-4-1973 vide Notification No.SO(R- III)S&GAD-2-13/72 the pay scale of Sub-Divisional Officer in all the Departments including Irrigation Department promoted from the rank of Overseer was revised. Their pay in the revised scale of Rs.450-50-1,000 was fixed in accordance with Rule 4.4(a)(ii) of Civil Service Rules Punjab Vol. I Part I."
Cases of all the appellants are identical and similar statements of facts have been made by them in Paras 1 to 3 of their respective appeals. In all these appeals Government have filed written objections wherein it has been stated "no comments" against these paras.
4. The learned Counsel for the appellants have relied upon paras.1 to 3 of the appeals and admissions of Government. They have further contended that in the old Class II Service Rules of 1941 no quota was fixed for Overseers/Sub-Engineers for promotion to the rank of Assistant Engineer (Class II) and all those Sub-Engineers who were considered fit to hold the higher posts could be promoted. Therefore, under Rules 2, 3 and 4 of 1941 Rules a number of Members of Overseers Engineering Service were promoted to Class II who were holding the same qualification of Diploma.
It has, therefore, been argued that in their cases Degree in Engineering was not necessary for seniority in Class II and promotion as Officiating Executive Engineer. It is further submitted that Integration Circular dated 25-11-1955 issued by the West Pakistan Government did not repeal 1941 Rules and the said circular also did not prescribe any new qualification for the Members of Overseers Engineering Service for the purpose of promotion in higher Grade or Class. Therefore, the appellants continue to be eligible-for seniority to Class II Service against 50% of the vacancies. It has been vehemently stressed that appellant Abdul Majid Mirza has been working as Sub- Divisional officer against the post of Assistant Engineer for the last 26 years, appellant Ch. Ahmad Din for the last 25 years, appellant Abdul Karim for the last 24 years, appellant Muhammad Afzal Cheema for the last 22 years, appellant Manzoor Ahmad Cheema for the last 24 years, Malik Muhammad Mukhtar for the last 19 years, appellant Sh. Akhtar Hussain for the last 21 years, appellant Ch. Ali Muhammad for the last 19 years and appellant Abdus Sattar for the last 16 years.
Their promotions had been ordered by the Government with the approval of Public Service Commission. Therefore, by virtue of their continuous officiation for such a long period they were deemed to be confirmed Members of Class II Service and entitled to be promoted as Executive Engineers. They have relied upon PLD 1970 Quetta 115 and PLD 1970 SC 203. Another argument advanced by the learned Counsel for the appellants was that a number of junior Sub-Divisional Officers who were promoted as Officiating Sub-Divisional Officers after more than 10 years of the appellants' promotion have been made Members of Class II as a result of Judgment of this Tribunal as upheld by Supreme Court whereas the appellants have been ignored. For this the learned Counsel has referred to the decision of this Tribunal in the case namely: Ghulam Jillani Shah etc reported as PLC 1985 (C S) 462 since upheld by the Supreme Court vide 1985 SCMR 689.
5. The learned District Attorney as well as Syed Jamshed Ali Shah learned Counsel for applicants who were imple,aded as parties on their application have opposed the learned Counsel for the appellants, on technical grounds as well as on merits. It has been objected that the appeals are grossly barred by time and there is no final order which has been challenged by the appellants. It has been argued by the learned Counsel for the respondents that the cause of action had arisen to the appellants many years back but they failed to file any appeal till 1985. It has further been argued that no final Order has so far been passed by the Government on their representations and until and unless a final order is passed appeal is not competent. Similarly appellants have not impleaded the necessary parties as respondents who have become parties to the case on their own application. On merits it has been argued that being Diploma holders appellants have no right to be inducted in Class II and for promotion as Officiating Executive Engineers because they do not possess Degree in Engineering which is prerequisite by the Service Rules of 1941 as well as Service Rules of 1967.
6. We have carefully considered the arguments of the parties. Of all we will take up the point raised by the learned Counsel for the appellants that officers much junior to appellants have been inducted as Class II Officers and as such it is serious discrimination as well as administrative irregularity to deny right of seniority to senior persons who have already been found fit by the Public Service Commission. This aspect of the case was examined by us on 28-7-1986 and the following order was passed:- "In case of Messrs Abdul Majid Mirza and three others, the learned District Attorney has desired this Tribunal that he would place in writing the comments of the respondent Department --Secretary Irrigation with regard to the claim of the appellants that they stand inducted in Class II on regular basis in view of Ghulam Jillani case reported as 1985 PLC (C S) 462 who have already been placed as such although being junior. The learned District Attorney has sought adjournment for two days to enable him to get this issue clarified by the Secretary Irrigation.
As learned D.A. Is under transfer order he has been directed to complete this job before he hands over the charge. The cases will be taken up on 11-8-1986 for all arguments."
"2. The matter has been scrutinized and it has been observed that the appellants are in no way eligible for promotion to TSE-II under Class II Rules of 1941 as they do not possess the requisite qualification given under rule 5 read with rule 3 of Class II Rules of 1941 Rules.
"3. The petitioners are however eligible for absorption as Assistant Engineers (Class II) under rule 8(b) of the West Pakistan Irrigation Engineering Service (Class II) Rules, 1967 under the prescribed quota of 20% and the case for the same is being processed. However 1967 Rules have barred their further promotion to the rank of AEE until and unless they possess Engineering Degree or equivalent qualification and fulfil the requisite rule 10 and rule 11 of West Pakistan Irrigation Engineering Service (Class I) Rules, 1967."
"4. It is stated that: the Department sympathizes with the case of Appellants. We would like to discuss the cases in the meeting of Departmental Promotion Committee which is represented by Regulation Wing of SGA & I Department and the concerned Chief Engineers. This Committee was presided by Secretary, Irrigation Power Department. Secretary, Irrigation & Power cannot decide the matter at, his own but only in the said Committee. The matter will be placed in the Committee and the decision would be communicated as soon as it is convenient. For the above task a period of about 30 to 45 days would be required."
It is, therefore, clear from the above letter of Government that in view of their long-standing extending from 16 to 26 years, Government has itself agreed to the absorption of all these officers in Class II and to treat them as Members of Service under rule 8(b) of Class II Rules of 1967. The said rule 8(b) deals with the recruitment against the vacancies of Assistant Engineers of Class II which fell vacant from 14-10-1955 to 16-4-1963. Actually this is the period during which all the present appellants were originally promoted to Class II in consultation with the Public Service Commission.
As a matter of fact West Pakistan Irrigation Engineering Service (Class II) Rules, 1967 which were enforced on 20-3-1967 cast a statutory duty upon the Government to fill all the existing vacancies of Class II under rules 7, 8 and 9 of these Rules. It has been point4ad out by the learned Counsel for the appellants that during the last 19 years i.e. From 20-3-1967 to August, 1986 the Irrigation Department did not discharge its statutory duties to classify vacancies under rule 6 and then to fill the same under rules 7, 8 and 9 of Class II Rules, 1967. Thus by wasting two decades in fixing their seniority at a proper place Department has deprived them of their further chances of their promotion as Officiating Executive Engineers, The learned Counsel have for this purpose relied upon the following portion of the Judgment of Supreme Court delivered on 7-10-1984 in the above mentioned case of Ghulam Jillan Shah and others 1985 SCMR 689 who are far junior to the present appellants:- "The effect of the Tribunal's judgment is that after filling up the vacancies which existed since before the enforcement of 1967 Rules in the manner laid down in rule 7 (pre-integration vacancies), Rule 8 (pre-1963 vacancies), Rule 9 had to be given effect to post-1963 vacancies until the officers holding posts in the temporary addition to the cadre are absorbed in the cadre. 20% were required to be filled with particular reference to fitness for higher responsibilities from among the cadre of West Pakistan Irrigation Department Subordinate Engineering Service in the region where the vacancies occurred subject to certain other conditions and qualifications. The Tribunal has enunciated the effect of such a rule and it is for the Department to identify the vacancies period- were i.e. Pre-integration, post-integration and post-1963 and then consider the eligible departmental candidates in proportion to the strength prescribed. The Tribunal worked out the vacancies in consultation with the parties. The Government does not accept the calculation but in spite of our insistence has not come out with what it considers the correct calculation of vacancies though it holds all the data in its hands."
1986 SCMR 1 in respect of Class I Officers of the same Department. In that case also Supreme Court of Pakistan passed serious remarks on the inordinate delay committed by the Department in the matter of working out the vacancies under rules 7, 8 and 9 of Class I Rules. In view of the categorical directives of the Supreme Court in respect of Class I posts as well as the aforesaid Judgment, dated 7-10-1984 in Civil Petition No.619 of 1984, in respect of Class II posts the Department should have undertaken and completed the exercise of identifying vacancies of Class II under rules 7, 8 and 9 and fill the same in accordance with the procedure laid down in these rules much earlier.
7. In any case Department has conceded that appellants are Class II Officers. The fact remains that they were promoted in Class II when 1941 Rules were in force and they have continuously been working for the last 16 to 25 years. Question is whether after having been working for the last 25 years they are still not regular Class II Officers. To resolve this question we rely upon the following law laid down in PLD 1970 Quetta 115:- "20. In such like case when continuous officiation is not specifically authorised by any law and the Government/ competent authority continues to treat the incumbent of a post as officiating, in our view it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e.g., failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some cases for years together. In proper cases therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it." Similarly their Lordships of Supreme Court also observed in Khushi Muhammad's case PLD 1970 SC 203 as follows:- "It is pointed out by the learned counsel for the appellants that so far as the North Western Railway, now Pakistan Railway, is concerned, a large number of Guards (Grade-2) now Grade-1 are working in officiating capacity as Guards since before the year 1940. In fact, appointments to this grade have generally been made in an officiating capacity, although they have almost the permanent character------------.".
8. We reserved the Judgment on 11-8-1986 and although a period of more than 50 days has now expired since the aforesaid letter dated 10-8-1986 of the Department by now but no intimation has been received from the Department as undertaken by them in Para 5 of their letter, dated 10-8- 1986, reproduced above. In view of the Department's own admission as well as the clear judgment, dated 7-10-1984 of Supreme Court in Civil Petitions Nos.619 of 627 of 1984 the question of induction of all the appellants in Class II from the dates they were originally appointed in consultation with the Public Service Commission stands resolved.
9. The only matter which requires further adjudication is whether I the appellants are entitled to be considered for promotion as Executive Engineers. In this connection the learned Counsel for the appellants have relied upon our Judgment in the case of Ch. Noor Muhammad whose case is quite identical. The said judgment in that case has been reported as NLR 1986 T D 252. The learned Counsel for the appellants have relied upon the following portion of the said Judgment:- "7. We have given our anxious thought to the arguments advanced by the parties and would refer to our earlier decision on which the appellant's counsel has relied, which would be identical case of this nature. In the said judgment it was held as under:- "(1) It is settled principle of law that employment is in the nature of contract between employer and employee and service rules determine the conditions of the employee's prospects for his career.
We have no dispute with the proposition that the Government can reserve the right of amending Rules but that must be done when there is sound reason to do so and not just to fill the routine. We in this regard observe after due consideration that as a general rule chance of promotion to the higher posts of general nature (wherever promotion is prescribed as method of recruitment) and where experience can adequately compensate for higher academic knowledge the persons possessing the same should not be disqualified in that matter.
(2) Their Lordships of the Supreme Court of Pakistan struck down demand of the Government in this respect and held that once a person is employed under a valid order, certain rights are created in his favour and the employer was bound to honour those rights and cannot be allowed to go back on it.
(3) With regard to the issue whether the rules so amended would be prospective in nature or not, it would be sufficient to say that law on this point is settled that rules are always prospective in nature and can never be retrospective in their application unless and until it is specifically mentioned by the rules-making authority. In the present case the rules cannot in their application be retrospective. Thus we are fortified in our views that these only apply in the case of those new entrants after the promulgation of said amended rules and not to those who have entered into service under the old rules and have worked accordingly."
"It is a matter of common knowledge that persons with long experience of departmental working in the lower posts acquire professional skill as well as ability and mere requirement of some higher academic qualification would in no way better their performance and thus it would be a case of hardship as well as injustice to call upon them in the middle of their service or fag-end of the same, either to acquire higher academic qualification or to lose their right of promotion in that line."
We will further refer to the decision of the Government itself circulated vide letter dated 23-11-1980, which reads as under:- "I am directed to say that it has lately been observed that Administrative Departments sponsor proposals for amendments in Service Rules seeking enhancement of academic qualification prescribed for promotion to higher posts even if the higher jobs do not require academic knowledge of a higher degree from persons with long experience of departmental working in the lower posts. Except where such amendments become necessary on account of statutory obligations or highly technical and professional nature of the higher posts, over specialisation in the matter of promotion militates against the principles of natural justice."
According to the law as laid down by Supreme Court of Pakistan in a large number of judgments such general letters have the force of Rules. Two of such authorities are PLD 1960 SC 105 and PLD 1973 SC 144 Government is, therefore, bound by the said policy of 1980.
"8. This issue also came before the Federal Service Tribunal in case reported as 1984 PLC (C S) 21 and it was held as under:- "14. The next issue we take up is that of the change in academic qualifications. To expect someone, who joined as matriculate and rose to be Assistant Director, that he should also pass his B.A.
Examination in addition to the promotion examination is to expect too much. The promotees, generally, reach these ranks toward the fag end of their service. They have enough experience and professional excellence without being graduates. No doubt, the academic qualifications have their place but it should be unjust to deprive the promotees of further chances for want of academic qualifications alone. If their record is of an acceptable standard and they have passed the promotion examination, this should suffice."
We respectfully agree with the conclusion of the learned Tribunal "9. We have also taken into consideration Office Memo. Dated 8-8-1977 issued by the Government of Pakistan, Ministry of Housing and Works (Works Division) produced during the course of arguments, in which they have protected the rights of promotion of old Diploma-holders to higher posts. The relevant portion of the said Memo. Is reproduced below and the Memo. Is placed on record as Annexure L:- "The position was also clarified that in accordance with the Prime Minister's directive as contained in the Ministry of Fuel, Power and Natural Resources OM No.WA/4(25) 74 dated the 16th November, 1974, 20$ of the posts in Grade 17 are reserved for promotion of Diploma-Holder Engineers in Grade-16. Further, in accordance with the Government decision as contained in the Establishment Division OM No.8/11/71-D.I, dated the 3rd May. 1975, 20% posts are reserved for promotion of Diploma-Holder Engineers (Grade 17) to the post of Executive Engineer in Grade 18. Once a Diploma-Holder Engineer is promoted to Grade 18 and brought on the seniority list of Executive Engineers, he automatically becomes eligible, subject to suitability on the basis of record for promotion to the post of Superintending Engineer in Grade-19. The Chairman of the Pakistan Engineering Council, however, requested that legal hitch. If any, in the Pakistan Engineering Council Act may kindly be removed."
"According to the law so laid down by the Supreme Court of Pakistan in the above-quoted two authorities this Memo. Has also the force of Rules.
"10, In view of the above we are of the considered opinion that the appellant when he was inducted into service, terms and conditions of service as contained in 1942 Rules permitted him to go forward and earn promotion to higher posts of Executive Engineer in accordance with merits on account of his good work, conduct, performance and seniority. It would be an act of sheer injustice as well as great hardship if the terms and conditions of service as assured at the time of entry into service are suddenly changed to the detriment of a civil servant. There is also force in the appellant's contention that Rule 11 of 1967 Rules is applicable to the present case. We have also taken into consideration the views of the Works Division, Government of Pakistan contained in their letter dated 10-5-1977, addressed to the Establishment Division which is reproduced below:- "In reply to Establishment Division No.8/11/77 D(1), dated 27-4-1977, This Division is of the view that if a Diploma-Holder Engineer by virtue of his experience is considered competent to hold the charge of a post of Assistant Executive Engineer Grade 17 and Executive Engineer Grade-18, he should also be eligible for promotion to the post of Superintending Engineer on the same ground.
Further this Division feels that educational and professional qualifications prescribed in the recruitment rules are meant for the direct recruitment and not for promotions.
The learned Counsel for the appellants have further informed us that the Government had decided in consultation with the Law Department not to file Appeal against the said decision. Consequently the said judgment has been implemented by the Government and Mr. Moor Muhammad has since been promoted as Executive Engineer on regular basis vide Notification, dated 23-4-1986 which has been placed on record. The Department have also admitted the appellants' assertion in Paras 1, 2 and 3 that the appellants' promotion as Officiating Sub-Divisional officers with the approval of Public Service Commission was in fact their substantive promotion to the posts of Assistant Engineers under Class II Rules of 1941. With this admission on the part of the Government the case of the appellants is quite at par with the case of Ch. Noor Muhammad. Accordingly we direct the Government to consider them for promotions Officiating Executive Engineers on the basis of their seniority in Class II.
10. The technical objections raised by the learned District Attorney as well as Syed Jamshed Ali Shah, learned Counsel for appellants/ respondents are repelled in view of the substantive provisions of section 7 of Punjab Civil Servants Act, 1974, according to which it was the statutory duty of respondent No.1 himself to fix the seniority of the appellants. Similarly, in view of the Supreme Court's above-quoted two judgments 1985 SCMR 689 & 1986 SCMR 1 a further duty was imposed upon the respondent No.1 to fix the seniority of the appellants in Class II at appropriate place keeping in view of dates of their continuous officiation as reproduced in pars. 1 of our Judgment. If the Government has failed to perform its legal and statutory obligation during the last 26 years then the appellants should not be made to suffer and their appeals cannot be thrown away on such technical objections. Moreover such technical objections have already been dealt with and disposed of by their Lordships of Supreme Court in the aforesaid two judgments particularly in 1986 SCMR 1. The relevant portion of which is quoted below with advantage:- "The Department owes an abiding duty to classify the vacant posts as required under rule 6 and to fill them up--in accordance with rules 7, 8 and 9. However arduous and thankless job it is a statutory duty which has to be undertaken in earnest and to be completed expeditiously, if that word has a meaning left after 19 years have gone by."
By now the proposition of law is settled that if a Tribunal or superior Courts interpret a particular rule in one case then that interpretation is binding upon the Department in other cases as well irrespective of the fact that the persons involved in such other cases were not parties to the earlier litigation in which such interpretation was made. Law on this point has been laid down by the Supreme Court in re: Chairman, Pakistan Railway, Lahore v. Muhammad Latif and others 1984 SCMR 286. The specific portion of that judgment is quoted below:- "The earlier decision with regard to the same establishment given by the competent Tribunal was determinative of the rules to be applied. The benefit of it could not be denied to respondent No. l on the sole ground that he was not a party to the litigation because it was declaratory of the rule on seniority applicable to the establishment."
Therefore, the Department had no valid excuse to refuse to the appellants their proper places in Seniority List of Class II Officers from the date of their continuous officiation.
11. We have also been informed at the time of arguments with reference to the orders of the Government that all the appellants have been allowed move-over from Grade-17 to Grade-18. It has, therefore, been submitted that even if the appellants are promoted as Officiating Executive Engineers in Grade-18 no financial implication will be involved for the Government. There is substance in the arguments of the learned Counsel for the appellants.
12. Before parting with the judgment we would again direct the Department to complete the exercise of working out vacancies of Assistant Engineers in terms of rule 6 of the West Pakistan Engineering Service (Class II) Rules, 1967 and to fill them in accordance with the rules 7, 8 and 9 of those Rules. It has been brought to our notice that direction in this respect was given by the former Punjab Civil Services (Appel--late) Tribunal in their judgments dated 20-4-1973 and 20-6-1973-- Ch. Faqir Muhammad v. Government of Punjab etc. In cases Nos.244/157 of 1972 and No.10/11 of 1973--Ch. Abdul Majid v. Government of Punjab and others respectively. The same was reiterated by us in the case of Ghulam Jillani Shah and others. In 1985 SCMR 689 their Lordships of Supreme Court also gave similar direction. Therefore, Department should not delay such process at the cost of the officers of the Department.
13. We, therefore, accept the Appeal and direct the respondent No.1 to determine the seniority of the appellants in former Class II w.e.f. The dates of their continuous officiation as such and also to consider them for promotion as Officiating Executive Engineers on merits from the dates they became due on the basis of their seniority in Class II.
FAIZ KARIM (MEMBER II).--I have perused with respect the judgment so delivered by the learned Chairman and learned Member I of the Punjab Service Tribunal but I don't agree with the same. My dissenting Note (Judgment) is attached.
DISSENTING NOTE (JUDGMENT)
Before recording the reasons of disagreement over the judgment so delivered by the learned Chairman and the Member I of the Punjab Service Tribunal, I need not repeat the facts of the appeal as well as the points urged by the learned counsel for the appellants and learned District Attorney for the respondent and learned counsel for the contesting-respondents. However, it would be proper to reproduce the prayer of appellants contained at pages 28 and 29 of the appeal: "Under the circumstances it is most respectfully prayed that the appeal may very kindly be accepted, the seniority of the appellants may kindly be ordered to be fixed in Class II as Assistant Engineer from the date of their continuous officiation in that grade and they ,may be ordered to be considered for promotion to the post of Executive Engineer (Grade-18).
It is further prayed that the cost of the appeal may kindly be awarded."
2. I have perused the contents of the appeal with the relevant record including the written objections received from the respondent and contesting-respondents. To start with the Punjab Service Tribunal is expressly barred to entertain any appeal concerning any order or decision of the Departmental Authority determining fitness or otherwise for a person to be appointed to or hold a particular post or to be promoted to a higher grade vide proviso (b) of section 4 (1) of the Punjab Service Tribunal Act. It is understood that the prayer of the appellants reproduced above includes the promotion to the post of Executive Engineer (Grade-18) for which the Punjab Service Tribunal is not competent. Secondly the appellants have not specified much less attached the copy of any impugned order of the Secretary to Government of the Punjab, Irrigation & Power Department, Lahore (respondent) against which they feel aggrieved as required under Rule 6 (E) (1) of the Punjab Service Tribunal (Procedure) Rules, 1975. Thirdly, the appellants have not impleaded any person as contesting-respondents as required under Rule 7 of the Punjab Service Tribunal (Procedure) Rules, 1975. However, on the application, dated 15-6-1985 of Mr. Muhammad Younis and six others submitted by Syed Jamshed Ali Shah the learned counsel for the said contesting- respondents they were allowed to be impleaded as necessary party vide short order, dated 7-8- 1985. Fourthly the appellants have not cited any seniority list issued by the respondent or any other document as required under Rule 6 (E)(ii) of the Punjab Service Tribunal (Procedure) Rules, 1975 to show that the appellants are senior to any contesting-respondent or any other person, no matter he has not been impleaded as party. The learned counsel for the contesting-respondents relied upon Dr. Iqbal Ahmad v. Government of Punjab of the Punjab Service Tribunal Appeal No.246 of 1981 in which it was maintained that the persons likely to be effected in the matter of seniority are necessary party and their non-joinder is fatal. This judgment was upheld by the learned Supreme Court vide their judgment of 1983 SCMR 339. Fifthly the appellants have expressed their grievance w.e.f. 1959, whereas according to section 4(c) of the Punjab Service Tribunal Act, 1975 no appeal was admissible against any order or decision of Departmental Authority preceding first July, 1969.
As such the appellants could not seek any redress from the Punjab Service Tribunal w.e.f., 1959. In addition to that as contended by the learned counsel of the contesting-respondents the Diploma- Holder Overseers are not eligible for promotion to the rank of Class I Service under Rule 13 of Class I Rules, 1967. Besides that the Secretary, Government of the Punjab, Irrigation & Power Department (respondent) has yet to fix the inter se seniority of the appellants as well as the other officers including contesting-respondents and it is yet to be determined whether the appellants have any justification to be given seniority during their officiating period. Before I conclude I may also state that assuming for the arguments sake that the respondent Department has not yet fixed seniority which is under process of being fixed but non-fixation of seniority does not lend any superior claim to the appellants regarding the acceptance of their prayer much less without justification including on the material points cited above.
3. Hence in view of the above grounds I find no justification at this stage to accede to the prayer of the appellants regarding fixation of their seniority of Class II as Assistant Engineers/Sub-Divisional Officers from the date of their continuous officiation in that grade and promotion to the post of Executive Engineer (Grade-18). Accordingly the appeal to be dismissed.
A.E. /71/Lb.S