' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Abdul Hayee, an Engineering Supervisor (Trunks) has preferred this appeal for determination of his seniority amongst the Engineering Supervisors (Trunks), International Gate-Way Exchange, Overseas Telecommunication Region, T & T, Karachi.
2. The case of the appellant is that he was appointed through competitive examination as a Telephone Operator in the Karachi Telecommunication Region, Pakistan T & T Department, Karachi, on 21-3-1961. In the year 1976, he and some other Telephone Operators were inducted in the newly established Overseas Telecommunication Region, Karachi. He passed the requisite Engineering Supervisors Course of 1982 in the year 1983 and he thereby became eligible for promotion to the post of Engineering Supervisor in the order of his original seniority. In the seniority list of the Telephone Operators (Traffic) of Overseas Division of OTR, as corrected up to 31-10-1983, he was placed at S.No,8, reckoning his seniority from the date of his appointment as 21-3-1961. However, he was superseded by the respondents Nos. 4 to 10 (Asif Mirza, Maqsood Anwar, Mrs. Wasim Rizwan, Iqbal Ahmad Khan, M. Afzal Qureshi, Abdul Razzaq and Abbas Haider), who were junior to him, while promoting them as Engineering Supervisors in two batches vide Office Order No, OTR/T&T/3-2/81- 122, dated 14-4-1983 and Office Order No, OTR/T&T/3- 2/81-131, dated 31-5-1984. By Order No, OTR/ESTT/370/83/121, dated 12-81984, the appellant and 31 others Telephone Operators (B-7) were promoted to the upgraded posts of Telephone Monitors (B-9) with effect from 1-5-1984. The appellant had preferred Appeal No, 95(K)/83 before this Tribunal against the promotion order of some of the respondents dated 14-4-1983, as aforesaid. His appeal was allowed by the Tribunal and he awaited orders for his due promotion. At last, order of his promotion as Engineering Supervisor was issued on 12-21986 with effect from that date and not from the back date when his juniors were promoted. He preferred departmental appeal dated 13-3-1986. Failing to get orders on his representation, he filed this appeal on 10-7-1986 with the prayer that he may be declared to have stood promoted to the post of Engineering Supervisor with effect from 14-4-1983, when his next juniors were promoted and for counting his seniority in the rank of the Engineering Supervisors vis-a-vis respondents 4 to 10 with effect from that date viz. 14-4-1983.
3. The respondents have resisted the appeal contending that the promotions to the post of Engineering Supervisors were made on the basis of the dates when the prospective candidates passed the departmental examination and the respondents 4 to 10 were promoted as Engineering Supervisors earlier as they had passed the departmental examination earlier. They have stated that the appellant had preferred Appeal No, 95(K)/83 before this Tribunal on the same grounds and his appeal was disposed of by judgment dated 20-8-1985 that he should be promoted at the next first available vacancy and his plea for his promotion from an earlier date was thus rejected.
The respondents have raised legal objections that the appellant having filed Appeal 95(K)83 on the same grounds, this appeal is hit by the principle of res judicata.
4. Mr. MA. Muatti Siddiqi, Advocate argued the appeal on behalf of the appellant; while the respondents 1, 2 and 3, who are the Government functionaries, were represented by Mr. Niaz Ahmad Khan, Standing Counsel; and by Mr. M.M. Baig, Advocate for the respondents 4 to 9; and by the respondent 10 himself. They put forth their respective cases, as mentioned above.
5. The case of both the parties is that the recruitments to the post of Engineering Supervisors in the T&T Department at the relevant time were regulated by the Engineering Supervisors Recruitment Rules, 1972. The rules provide two modes of recruitment to the service, namely direct appointment and promotions. Rules for recruitment by promotion are contained in Rules 15 and 16 which are reproduced below: "15. Promotion to the posts reserved for departmental candidates vide rule 4 (ii) shall be made in accordance with the following procedure:--
(i) The Heads of the Regions shown in Appendix 'A' to these rules will select candidates, on seniority-cum-fitness basis from amongst the persons holding the posts mentioned in rule 2(f) of these rules including those deputed to other Regions/Units and will send them to the Training Centre for training in Engineering Supervisors's Courses appropriate to the section(s) as prescribed in Appendix 'E'. The training in each course will be for a period of 9 months in case of General Branch and 12 months in case of Carrier and Wireless/Microwave branches, which can, however, be increased or decreased by orders of the Director-General.
(ii) The trainees after completion of the course will be examined by the Training Centre and the names of qualified candidates will be intimated to the Regions concerned.
16. (i) On successful completion of the courses appropriate to their respective sections, the candidates will be brought on a panel to be maintained sectionwise and in the order of their original seniority, and will be appointed as Engineering Supervisors on probation for a period of one year as and when a vacancy occurs in the respective Section against the quota fixed for the departmental candidates.
(ii) If the work or conduct of the official on probation is found to be unsatisfactory, he will be reverted to his substantive post.
(iii) On satisfactory conclusion of his period of probation the official will be eligible for confirmation as and when a clear vacancy occurs.
(ii) If no action is taken under sub-rule (ii) or (iii) of this rules, the period after the prescribed period of probation shall be treated as temporary engagement in the Engineering Supervisors' Cadre until further orders."
At the time of framing of the rules, there was no Overseas Telecommunication Region and that Region was established in the year 1976. On the establishment of the said new Region, the appellant was allocated to that Region, while the private respondents herein were transferred to that Region. The promotions in each Region were to be made in accordance with the aforesaid rules. It would appear from the Rules 15 and 16, reproduced above, that the promotions to the post of Engineering Supervisors were to be made from amongst the departmental candidates who had done Engineering Supervisors' Course and passed requisite examination. It was urged by the learned counsel for the respondents that the respondents 4 to 10 had done the requisite training and passed the required examination earlier than the appellant and that fact was not controverted by the appellant. It would be worth-while to mention that the respondents 4 and 8 (Asif Mirza and M. Afzal Qureshi respectively) had qualified the departmental examination in the year 1976, and the respondents 5, 6 and 10 (Maqsood Anwar, Mrs..Wasim Rizwan and Abbas Haider respectively) had done so in the year 1977, while the respondents 7 and 9 (Iqbal Ahmad Khan and Abdur Razzaq respectively) had done the course in the final examination held in December, 1982.
Such statements have been filed along with the written objections filed by the department. The appellant passed the departmental examination at the supplementary examination of 1982 held in the year 1983. It was in that context that the respondents 4 to 10 were promoted earlier than the appellant and rightly so. The appellant did challenge promotions of two of such promotees in appeal No, 95(K)/83 on almost the same grounds and his appeal was disposed of by order dated 21-8-1985 with the directions that he should be promoted against the first available vacancy, which indicated that this prayer for his promotion with retrospective effect was impliedly rejected. The appellant was promoted vide order dated 12-2-1986 on his turn in accordance with the relevant rules and he would reckon his seniority fromrthe date of his regular promotion and he has not made out any case for his promotion with retrospective effect. Thus, the appeal lacks merit and is dismissed as such. No order is made for costs.