SHAFIUR RAHMAN, J.--- Leave to appeal was granted under Article 212(3) of the Constitution to examine the following two questions of law of public importance arising with regard to the seniority of the direct recruits and the promotces to Grade-18 in the Education Department of the N.-W.F.P.--
(i) Whether the promotion of the respondents could he ante-dated to the vacancy occurring in Grade-18 and reserved for promotion?
(ii) Whether reversion of the appellants from Grade-19 to Grade-18 was not in violation of the principles of the natural justice and against the decision already rendered by the Tribunal in service appeals inter partes?
2. The factual background of these appeals is that the respondents/civil servants who were in Grade-17 were promoted to Grade-18 by a notification dated 12-5-1984. They challenged the notification before the Service Tribunal which passed an order on 9-8-1984 to the following effect:- - "We, therefore, cancel Notification dated 12-5-1984 and direct the Government to promote the appellants to Grade-18 posts with effect from the dates the vacancies were available and thereafter a joint seniority list of the officers directly recruited and those promoted be issued according to the rules."
' Ai peals were filed in this Court against the decision of the Service Tribunal. The appeals were partly accepted and the Supreme Court substituted the order of the Tribunal with the following order:--.
"We convert these petitions into appeals and allow them to the extent that the direction of Tribunal to promote the respondents herein (promotees) is modified and is substituted by the direction that the promotees shall be considered for promotion to Grade-18 post with effect from the dates when vacancies in their quota became available and that thereafter a joint seniority list of the officers directly recruited and those promoted shall be issued according to the rules. The appeals are disposed of in the above terms leaving the parties to bear their own costs."
3. For implementing the decision given by the Supreme Court, the Government constituted a Committee of Officers and on receipt of its report, resettled the date of promotion of the respondents in accordance with their quota and thereafter prepared a joint seniority list. The seniority of the promotees was ante-dated from the date of vacancies within their quota and in this manner, the appellants who were direct recruits, lost in seniority. As a further consequence, the appellants who had been promoted in the meantime, on the basis of their earlier seniority, to Grade-19, were reverted to Grade-18 because their promotion to Grade-19, though made on the recommendation of the Departmental Promotion Committee, was after such resettling of the seniority considered to be not regular because those senior to them in fact had been omitted from consideration. After exhausting departmental relief, the appellants filed Service Appeals before the Tribunal; one against the resettlement of their seniority to their prejudice and the second against their reversion to Grade-18 from Grade-19 post. The Service Tribunal, by the impugned mar, disposed of both these grievances by observing as hereunder:-- "(i) The Notification dated 18-6-1986 regarding the seniority of Grade-18 officers copy of which has been placed on file shows that the sanctioned strength of the cadre was 35 out of which 8 had to be recruited directly. The department has filled in each post of the promoted officers from the date it had fallen vacant and it could not be shown by the appellants as to who were holding the three posts of the respondents on 1-11-1980, 30-12-1980 and 30-12-1980, the dates from which they had been promoted. The respondents had, therefore, rightly been promoted from the dates noted against their names.
(ii) Since all have been appointed against substantive vacancies the respondents were, therefore, senior to the appellants in view of Rule 10 sub-rule 2(a) of the West Pakistan Education Service Rules Class-I Administrative Branch (Men's Section) of 1962. In view of the above seniority of the respondents since they had not been considered for promotion to Grade-19 at the time the two appellants were promoted to Grade-19 it was, therefore, necessary that the two appellants should have been reverted and the case for promotion to Grade-19 reconsidered."
4. Mr. Abid Hasan Minto, Advocate, the learned counsel for the appellants, the direct recruits, contended that prior to 1979, there were two separate cadres in the Education Department of the N.-W.F.P. There was the general cadre governed by 1962 Service Rules which provided promotion to Grade-18 to the extent of 75% and direct recruitment to the extent of 25% of the vacancies. There was another cadre of Comprehensive Schools which was governed by 1969 Service Rules which provided for appointment to Grade-18 posts to the extent of 50% by direct recruitment and 50% by promotion. These two separate cadres were amalgamated in November, 1978 and thereafter a uniform quota of 75% for promotion and 25% for direct recruitments was adopted. The main ground of attack is that the quota of the promotees has not been correctly worked out and in considering that there were vacancies in 1979 for promotees, the Department has committed an error. There was no promotion vacancy available in 1979. In any case the promotions could not be ante-dated to the date of vacancy but had necessarily to be from the date of selection or from the date of appointment which happened in the case of respondents to be later than the direct recruitment of the appellants. On the second point the learned counsel for the appellants contended that the promotion of the appellants to Grade-19 post had been made in a regular manner on the recommendation of the Departmental Promotion Committee and was not challenged and the challenge by means of a service appeal earlier made before the Tribunal was withdrawn. In the circumstances that promotion had earned finality and could not be reversed. In any case for reverting the appellants from Grade-19 post, the requirement of natural justice should have been observed and they should have been given an opportunity to explain and demonstrate that the premises on which the Government was acting and implementing the decision of this Court given in Civil Appeals Nos.26 and 27 of 1985 on 10-3-1985, was not correct.
5. A preliminary objection was raised by the respondents that against the, reversion order, the appellants had not filed any representation to the authority concerned before approaching the Service Tribunal. The appellants have filed documents to show that they had done so. However, as this was not a question adjudicated upon by the Service Tribunal, we would not like to go into this question at this stage particularly, when leave has not been granted on it and the matter involves a factual enquiry.
6. As regards the legal question whether the promotees could be considered and appointed on a promotion post not from the date of their selection or appointment or taking over of the appointment, but from the date when the vacancies occurred, the decision of the Supreme Court rendered inter partes is final and binding. There is no going back or questioning that decision.
Hence the appellants cannot dispute the proposition. The only question that could be agitated is that the promotees were not eligible when the vacancies occurred and on being considered for promotion they could not be declared eligible for promotion. That, however, is not their case. The eligibility of the promotees for promotion on the date when the vacancies occurred for promotion quota has not been challenged upto now at any stage.
7. The next and the most important submission of the appellants is that as in the first round indicated by the Government, there were no promotion quota vacancies available at all in 1979 and all the posts were already filled up. This is a question of fact. The Tribunal has, after examining it, found that there were 12 Grade-18 posts available on 1-1-1979 out of which 9 had to be filled by promotion and 3 by direct recruitment. When the appeals had on an earlier occasion come up before us, we had directed the parties to further document the appeals if they wanted to contest this factual finding. They have done so, but the result of those documents is that in view of the retirements, death and promotion it is contended that there were more vacancies both for direct recruits as well as for promotees that had been taken into consideration. Assuming that it was so, the appellants will not benefit from it because if there were more vacancies for direct recruits as well, their appointment cannot be ante-dated to a date when the vacancies became available for direct recruitments. That is a principle not enunciated by the Supreme Court and not warranted by the Rules of Service. If there were more promotion vacancies available due to deaths, retirements etc., then the ante-dating of the promotion of the respondents would be justified and proper. On the material before us, it is not possible for us to determine the exact number of promotion vacancies available in December, 1980. Therefore, we have to go back to the finding of fact recorded by the Tribunal and not disputed by the Government with regard to the number of promotion vacancies available in December, 1980. The other grounds will also be not available because of the decision of the Supreme Court inter partes. Hence, the ante-dating of the promotion of the respondents has rightly been not interfered with by the Service Tribunal.
8. As regards the reversion of the appellants from Grade-18 post, it has to be noted that it was not on account of any fault of theirs, but as a consequence to the implementation of the decision of the Supreme Court. The decision had two aspects. One, of resetting the date of promotion of the respondents relating to the vacancies of the promotion quota and the second was of the preparation of the joint seniority list hereafter. The first exercise having been completed when the joint seniority list was prepared, the respondents gained seniority over the appellants. This necessarily meant that in that position and with that seniority, the appellants and the respondents should have been considered by the Departmental Promotion Committee for their promotion to Grade-19 on the principle of seniority-cum-fitness. Evidently, when the appellants were promoted to Grade-19, the respondents were not in competition with them or treated senior to them which was the correct position after the Supreme Court decision. Their promotion, therefore, was not in accordance with the Rules. It could not, therefore, be said to be regular.
9. As the reversion of the direct recruits was a consequence of the decision of this Court and it had taken place in the course of implementation of the judgment there was no question of giving a show-cause notice or a hearing before passing the order of reversion. Similarly the earlier institution of the appeals and their withdrawal against the promotion would not affect the implementation of the decision and the consequence flowing from the implementation of the decision.
10. In the circumstances and for reasons we find no merit in these appeals and all of them are dismissed with no order as to costs.
11. Civil Petition for Leave to Appeal No,163-P of 1986 which was shown to be connected with these appeals has been delinked and is being separately disposed of.