HIDAYATULLAH KHAN (MEMBER): --This appeal has been filed by Mushtaq Ahmad Assistant, Finance Department, N: W.F.P., Peshawar and 6 others, against the order dated 17-5-1992, whereby the appellants have been promoted to the rank of Assistants BPS-11, with immediate effect instead of 17-5-1992. It has been prayed that the respondents may be directed to modify/correct the abovesaid order to the extent of giving effect to the same from the date when the posts of Assistants had become available according to the Notification dated 21-12-1982 laying down the method of recruitment and in consequence thereof the appellants may please be declared entitled to all the ensuing benefits.
2. The facts of the case as narrated in the appeal are that the appellants were appointed as Junior Clerks and thereafter were promoted as Senior Clerks, after having undergone the requisite formalities for promotion. According to the Notification dated 21-12-1982, the posts of Assistants were required to be filled in at the ratio of twenty-five percent by initial recruitment and seventy- five percent by promotion on the basis of seniority--cum-fitness, from amongst the holders of the posts of Senior Clerks with at least three years service. The vacant posts were filled in. However, in utter violation of the rules for recruitment, a waiting list was maintained of those candidates for whom vacancies were not available at that time. Later on, 11 posts of Assistants became available.
Out of these 11 posts, 5 were to be handed over for initial recruitment, whereas, 6 of the posts were to be allocated to Senior Clerks for promotion quota, according to the method of recruitment as contained in the abovestated notification. The 11 posts were filled in from amongst the persons whose names were maintained on the waiting list prepared in the year 1990, although a period of 2 years had elapsed. Consequently respondents Nos. 3 to 11 were inducted in the service in violation of the Service Rules, standing instructions, regulations and the recently promulgated N.W.F.P.
Government Servants (Appointment, Promotion and Transfer) Rules, 1975. Aggrieved with the above illegality committed by respondent No. 1, which had adversely affected the rights of the appellants, the appellants preferred a representation against this injustice. After the preference of the above representation, the appellants were promoted to the post of Assistants, vide order dated 17-5-1992, but giving effect to the promotion order from the same date i.e. 17-5-1992. According to the appellants their grievance was still unredressed, because the induction of respondents Nos. 3 to 11 had badly affected the seniority position of the appellants and other rights connected therewith, because if the posts available at the time of induction of respondents Nos. 3 to 11, had been filled in, according to the proportionate quota fixed by the Government, the appellants would have earned seniority over respondents Nos. 3 to 11, therefore, the appellants preferred an appeal to respondent No. 1 on 3-6-1992, but the same has not been responded so far. The induction in service of respondents Nos. 3 to 11 being in violation of the rules had adversely affected the rights of the appellants and they have also been deprived of the seniority position, if they would have been considered and promoted from the date/on the occasion, when the vacancies were available for their promotion.
3. Respondents have filed their reply in which the pleas of competency of the appeal, jurisdiction of the Tribunal and locus standi have been taken as preliminary objections. On factual side it has been stated that the 11 posts of Assistants advertised on 24-1-1990 for initial recruitment fell to the share of direct recruitment and the quota meant for promotion of senior clerks to the rank of Assistants was fully saturated and there was no available post falling to the share of departmental promotion at that time. The list of qualified candidates was maintained according to the prescribed procedure. In the meanwhile a ban was imposed on initial recruitment and as such the said waiting list was legally suspended and not lapsed. As there were a number of posts of Assistants in various administrative departments in 1992 and they were persistently demanding provision of officials, the S&GAD, therefore, in exigency of services, appointed qualified candidates from the waiting list on merit in 1992. A case of promotion of departmental candidates/senior clerks was also under process and that matured in May 1992 and the order regarding promotion of the appellants was accordingly issued in May 1992. The appellants have no locus standi to claim their rights of promotion from the date from which the vacancies occurred.
4. From the perusal of record and hearing of the arguments of the learned counsel for the parties, it is evident that in pursuance of advertisement dated 24-1-1990 for filling vacancies of Assistants (BPS-11), 10 Assistants were inducted in Government service against the quota reserved for direct recruitment, however, the respondent department prepared and maintained a waiting list of the left over candidates at that time. Later on, in 1992 when new vacancies occurred, respondents Nos.
3 to 11 were recruited from the waiting list maintained in the office of respondent department. The appellants contend, that according to the quota, out of 11 posts of Assistants, 5 were to be handed over for initial recruitment, whereas, 6 of the posts were to be allocated to the Senior Clerks for promotion quota. The reply of the respondent department to this effect is that the waiting list of qualified candidates was maintained according to the prescribed procedure and in the meanwhile ban was imposed on initial recruitment and as such the waiting list was suspended and not lapsed. There were a number of posts of Assistants in various administrative departments in 1992 and they were persistently demanding the provision of officials, therefore, the S&GAD in exigency of services, appointed qualified candidates from the waiting list on merits in April 1992. The respondent department has also stated in para. 4 of their reply that 11 posts of Assistants advertised on 24-1-1990 for initial recruitment fell to the share of direct recruitment. Besides, the quota meant for promotion of the Senior Clerks to the rank of Assistants was fully saturated and there was no post in the share of promotion at that time. It may be made clear that the appellants raised no objection on the appointment of 10 Assistants recruited in pursuance to the advertisement dated 24-1-1990. They are assailing the appointment of the present respondents who were recruited on direct quota in 1992. Moreover, it has been admitted by the respondent department that the ease of promotion of departmental candidates/Senior Clerks was also under process and that matured in May 1992. As such the order regarding the promotion of appellants was accordingly issued in May 1992. It therefore, means that the vacancies for promotion from departmental quota were available, otherwise, the promotion case of the appellants would have not been taken up, in case there were no vacancies in the quota of departmental promotion. This fact is borne out by the admission of respondents and in para. No. 6 of their written statements, wherein it has been admitted that there were a number of vacant posts of ants in various departments in 1992 and they were persistently demanding provision of officials. Counsel for the appellants referred and relied on the judgment of Hon'ble Supreme Court of Pakistan, reported in 1985 SCM R 1158, wherein a case of similar nature regarding quota fixed for direct recruitment and promotion in filling vacancy in higher posts, it has been held that the promotees to be considered for promotion w.e.f. The dates when vacancies in their quota became, available. Joint seniority list of officers directly recruited and those promoted to be issued according to rules. The promotees in the above were declared entitled to be considered against every vacancy, which occurred in their quota. The above principle has been substantiated in subsequent decision of the Hon'ble Supreme Court. The time gap of about one month in the appointment of appellants and respondents Nos3 to 11 (respondents Nos3 to 11 were directly recruited in April 1993 while the appellants were promoted in May 1993) clearly show that the vacancies in both cases were available at the same time. The respondent departments should have distributed the vacant -posts according to the share/quota of two categories of officials. Besides giving due shares/quota to each category it would have also resolved the seniority issue between them. However, from the record it is not clear nor it has been explained by the respondent-department that which of the vacancies fell to the quota of departmental promotion and which in the quota of initial recruitment out of numerous vacant posts. Counsel for the appellant therefore, pleaded that the present case be remanded to the respondent-department with the directions to the effect that the appellants `promotees' should be considered for promotion to the posts of Assistants w.e.f. The date when the' vacancies in their quota became available and thereafter a joint seniority list of the officials directly recruited and those promoted should be issued according to rules. This proposition was also accepted by the learned Government Pleader and the representative of the respondent-department.
5. With regard to the issue of making recruitment from the waiting list the same was neither pressed nor argued by the counsel for the appellants,
6. According to Rule 9 of the N: W.F.P. Civil Servants Act, a civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rule for departmental promotion in the service or cadre to which he belongs.
7. Since the parties and their counsel have agreed that the case should be remanded back to the respondent-department to grant promotion to the appellants/promotees w.e.f. The dates when the .Vacancies in their quota became available and the same was required under the relevant provisions of law, the Tribunal directs the respondent-department that the appellants/promotees should be considered for promotion to the post of Assistants (BPS-11) w.e.f. The dates when the vacancies in their quota became available and thereafter, a joint seniority list of the officials directly recruited and those promoted should be issued according to rules. The appeal is accepted and remanded to the respondent-department in the above terms. Parties are left to bear their own costs. File be consigned to the record.