ABDUL HAMID KHAN (MEMBER): --The appellant Muhammad Siddique initially joined the Directorate of Food as Stenotypist on 26-7-1966; he was promoted to the rank of Stenographer on 1-9-1975 in BS-10; later this post was upgraded in 1983 to BS-12 and lastly he was given BS-15 with effect from 1-7-1983 retrospectively vide Finance Department's letter dated 27-12-1987.
2. On the other hand, the respondents who were Assistants primarily in BS-11 were as well allowed BS-15 as selection grade against 33% of their posts and thus both the parties were brought at par.
3. The appellant's claim was that the West Pakistan Food Department (Headquarters) Ministerial Establishment Recruitment Rules, 1962 applied to the parties' service as they were covered by the definition of the "Ministerial Establishment" consisting of Superintendents, Assistants, Senior Clerks, Junior Clerks, Stenographers and Stenotypists. According to the Appendix to these Rules, a combined seniority list of Stenographers and Assistants was to be prepared and both these categories of officials were eligible for promotion to the post of Superintendent in BS-16 taking seniority from the date of continuous appointment as Assistant/ Stenographer.
4. A seniority list dated 30-4-1986 was prepared in which the appellant's date of continuous appointment as Stenographer was shown to be 1-9-1975 while those of respondents were 1-7-1978 and thereafter. Obviously according to these dates, the appellant was senior, yet two of the Assistants namely Mushtaq Ahmed Kazmi (now retired) and Mirza Riaz Ahmed, respondent No.4, were promoted as Superintendent (BS-16) with effect from 26-3-1988 but the appellant was ignored altogether. Later other respondents too were promoted again ignoring the appellant.
5. Aggrieved by his supersession, the appellant made a representation to respondent No. 1, but it was rejected by order-dated 27-4-1992. He has now finally assailed those orders in the instant appeal.
6. The appeal was contested by the respondent-Department as also other respondents who were promoted meanwhile to the post of Superintendent. Their contention was, firstly, that the appellant could not claim promotion and secondly that he was to be first promoted as Senior Scale Stenographer in BS-15- and only then he could be considered for promotion to the next higher post of Superintendent in BS-16.
7. The appellant has mainly contended that the West Pakistan Food Department (Headquarters)
Ministerial Establishment Recruitment Rules, .1962, referred -to above did not conceive of a post bearing the nomenclature of Senior Scale Stenographer and that importing concept into those Rules merely because it was available in rules of other Departments Was not permissible. He relied on the aforesaid Appendix relating to his case as Stenographer which reader as under:-- "Superintendents------------By promotion from among 'members of the Establishment holding posts of:
(i) Assistants with at least five years' experience as such; and (ii)Stenographers with at least five years' experience as such who have passed the departmental examination if any, prescribed for Assistants under sub-rule (4) of Rules.
Note:.-- A common seniority list shall be maintained of Assistants and Stenographers for the purpose of promotion to the post of Superintendents, xx xx xx xx xx xx xx."
It will be seen that these are the rules applicable exclusively to the Food Department. It was not shown nor indeed claimed that these rules were formally amended so as to make 'provision for the post of Senior Scale Stenographer, or to fill it from among the Stenographers although they had already been granted the same BS-15. It was apparent-that unless such an amendment was, formally made in those rules specifically applicable to the Food Department, no analogy could have been drawn from the rules of other Departments to read an amendment therein without its formal insertion. This was the view of the Department itself expressed in their comments dated 31- 8-1991 wherein they admitted that the, appellant was ignored on the presumption that he had to first become a Senior Scale Stenographer arid then to be considered for promotion as Superintendent. Their comments were: "The ambiguity is due to the reason mentioned in para. 1(a) as the appellants according to the common seniority list were senior to the respondents in perspective of 1962 Rules and they were ignored on the presumption that they have to first become Senior Scale Stenographer and then to be considered for promotion as Superintendents."
It is apparent that the ambiguity has arisen from the opinion of the SGA&I Department which impinged upon the Food Department to effect a parallel amendment in the aforesaid rules but the truth of the matter was that no such amendment was at all made. Therefore, there was little, option to bypass those rules. It would be realized that the aforesaid Appendix provided for a common seniority list bracketing together the Assistants and Stenographers, both in BS-15 for purposes of promotion to the post of Superintendent (BS-16) according to their competitive seniority counted from the date of appointment in the post. The opening clause: "By promotion from among Members of the establishment holding posts of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx signified that the members holding posts of Assistants and Stenographers were eligible to be, further promoted as Superintendent. The expression `holding posts of---------evidently related to the posts of Assistants and Stenographers indeed irrespective of their scales. The background was that earlier the Stenographers were in BS-10, BS-12 and ultimately they were placed in BS-15. Likewise, the Assistants were, to start with, in BS-11 but were allowed selection grade, that is BS-15, up to 33% of their posts. Under the 1962 Recruitment Rules the posts of Assistants and Stenographers were grouped together as regards eligibility for further promotion to BS-16. As might be clearly understood, there was no point to take into account their scales, nor indeed any logical reason to consider that the appellant who was already availing BS-15 since 1983 should again be promoted to the same scale as Senior Scale Stenographer when he had already become eligible for promotion to the post of Superintendent. Probably the Food Department did not feel convinced of this distinction created between Stenographers and Assistants erstwhile bracketed together for future prospects. Be that as it may, unless this rule is lawfully amended to bring it at level with the rules of other Departments, there was no power to deviate from it. It has to be meticulously enforced.
9. Despite persuasion made by the S&GAD or for that matter the Finance Department, the aforesaid change was not introduced in the rules by the Food Department. Contrarily, they adhered to those rules and even prepared gradation list (Annex. B) At pages 20-28, in which, however, Stenographers and Assistants were separately shown as distinct classes. Their dates of continuous appointment were as well indicated. The caption was: "The date of continuous----------- in present post."
Reference to the present post obviously did not hint at or relate to the scales held by them. The corollary was that their appointment in the posts of Stenographer and the Assistants had to be kept in mind. This is what Rule 9 of the Rules ibid clearly provides for Since the appellant held the post of Stenographer with effect from 1-9-1975, he was senior to the respondents including Mr. Mushtaq Ahmed Kazmi (since retired) who held that post since 1-7-1978. This seniority list was not assailed by the respondents to show that the appellant did not hold the post of Stenographer continuously from 1-9-1975. This position was not denied by the Department in the comments referred to in the earlier part of this judgment where they unmistakably conceded that as per this seniority list, the appellant was senior to all the respondents.
10. A reference was made by the learned District Attorney to the Notification dated 5-12-1986 whereby the post of Senior Scale Stenographer (BS-15) was created. Next below it was the post of Stenographer in BS-12. It is difficult to accept the contention of the respondents that in order to become eligible for the post of Superintendent, the appellant was required to be promoted first as a Senior Scale Stenographer and that his previous status as such, officially enjoying BS-15, would be of no help to him. This notification does not make any reference whatsoever to eligibility of Senior Scale Stenographer for any further promotion. On the other hand, what it contemplates is the promotion of a Stenographer in BS-12 as Senior Scale Stenographer (BS-15). It- is quite distinct that a Stenographer in BS-12 had to get BS-15 of the nomenclature of Senior Scale Stenographer before he could seek further promotion but a Stenographer who was already placed in BS-15 could be no more put under a derogatory condition that he should again seek promotion in the same scale. It was plausible interpretation of this notification which in terms had no reference to promotion to the post of Superintendent BS-16. Even the advice of the S&GAD dated 18-6-1989 could not be taken to be the conclusive authority in the context. At best it was only a suggestion, which was not accepted.
11. As a result, we allow the appeal and hold that the appellant was eligible for promotion to the post of Superintendent BS-16 with effect from 26-3-1988 (Annexure C) when Mr. Mushtaq Ahmed Kazmi junior to him as per Rule 9, was promoted as Superintendent. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.