CH. HASAN NAWAZ (MEMBER): --The appellant as also respondents Nos. 2 to 7 are in service as Sub-Engineers (E/M) in the Public Works Department. In pursuance of sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, methods for appointment to the posts of Sub-Engineer (BPS-11) and (BPS-16) in the Department were notified by the Works Division on 28-8-1984. In accordance with Para. 3 of this Notification, 25% of the total posts of Sub-Engineers of Civil and Electrical/Mechanical cadres were to be placed in BPS-16 and they were to be filled on the basis of seniority-cum-fitness from amongst the Diploma-holder Sub-Engineers having completed 10 years service in the Department, provided they have passed the prescribed departmental examination. This quota for placement in BPS-16 was subsequently enhanced to 33% by the Finance Division on 18-1-1992.
2. It is an admitted fact that appellant is senior to respondents Nos. 2 to 7 in accordance to the dates of their appointment as Sub-Engineers. In spite of this seniority, however, the respondents were pleased in BPS-16 by the competent authority through office order dated 24-3-1992 on the recommendation of the concerned departmental promotion committee. It is also an admitted fact that the appellant's name was not considered for promotion by the Department.
3. After he failed to get a response to his representation against the respondents' promotion, the appellant challenged the validity of order dated 24-3-1992 in an Appeal (No. 184(L)/1992) before the Tribunal under section 4 of the Service Tribunals Act, 1973. It was disposed of on 17-2-1993 with the following observations: "There is no dispute of seniority or eligibility of the appellant and according to the appellant he has put in requisite length of service and is qualified for grant of selection grade B-16. The merits of the case apart, in all fairness, we are of the view that the respondents department may also consider the case of the appellant in the light of the decision taken in the case of Mr. Muhammad Iqbal, referred to above, and decide the matter on merits and law within 3 months, and report compliance. With these observations, the appeal stands disposed of."
4 The appellant's petition for implementation of this judgment was disposed of by the Tribunal on 19-7-1993 with, the observations that he may pursue any remedy available to him under the law.
The background of the course thus suggested becomes available from the following observations: "The respondents counsel has placed on record letter dated 6-4-1993 addressed by the department to the Asst t. Registrar of this Tribunal. It inter alia says that the appellant Tanveer Ahmad was not considered by the DPC for placement in BPS-16 for want of vacancy and that he will be so considered on his turn on its availability. This virtually amounts to rejection of the appellant's representation for placement in B-16 by the department. We are of the view that there is substance in the respondents counsel's contention that the appellant's case for grant of selection grade (B-16) has been considered by the department on merits in accordance with the Tribunal's direction; which extended only to the consideration of the case and not to the grant of any specific relief."
5. Since the department's letter dated 6-4-1993 amounted to rejection of the appellant's representation, he again represented against it on 21-8-1993. Like the previous representation it did not bear any fruit and he is again before us with the present appeal where it is prayed that respondent No. 1 be directed to place him in BPS-16 "with effect from 24-3-1992 with seniority over respondents No. 2 to 7 and with all consequential benefits". It is further prayed that letter dated 6- 4-1993 (Annexure-I) and the eligibility statement (Annexure K) be declared as inoperative and without lawful authority."
6. As already pointed out before, the seniority position is not in dispute. It has also been conceded by the department that the appellant too had completed 10 years service and had passed the prescribed departmental examination by 24-3-1992 and was thus eligible for promotion alongwith the contesting respondents. The defence in the department's own words is that since the appellant passed the departmental examination in the year 1991 and respondents Nos. 2 to 7 had passed this examination either in 1990 or before that year, they became eligible first and were therefore placed in the selection grade by the department.
7. What we understand from the department's pleadings is that the date of passing the departmental examination was taken as the deciding factor. There were only ten vacancies for placement of Sub-Engineers in BPS-16 at the relevant time, worked out on the basis of 33% quota reserved for promotion. The appellant's name was not considered by the departmental promotion committee only because the contesting respondents had passed the prescribed departmental examination earlier and were regarded as senior to him with reference to the date of eligibility.
8. This was evidently incorrect and preposterous, which is to say the least. The appellant was admittedly senior to the contesting respondents with reference to dates of appointment. He had completed 10 years service and had also already passed the departmental examination before 24-3-1992 when the impugned order of promotion was passed. There was hardly any justification for ignoring him at the time of promotion. The date of passing the departmental examination was absolutely immaterial and could by no means change the seniority position of the parties. There was absolutely no reason whatsoever why his name should not have been considered for promotion at the relevant time alongwith others, especially when no departmental case was pending against him. The department's failure to consider him for promotion suffers from a palpable illegality, more so when we have documentary evidence: on the record to prove that date of eligibility was not taken as a determining factor at the time of promotion of Sub-Engineers made by office order dated 5-9-1989 subsequently modified by O.M. Dated 10-2-1991. These orders show that the concerned Sub-Engineers were placed in BPS-16 in accordance with their seniority, regardless of the dates on which they had passed the prescribed departmental examination.
9. For these reasons, the appeal is accepted and we declare that the policy laid down in letter dated 6-4-1993 did not have the support of the rules on the subject and was thus without any legal effect and that the appellant was entitled to promotion on the basis of seniority-cum-fitness on 24-3-1992, when the contesting respondents were placed in the Selection Grade (BPS-16). We accordingly direct the competent authority to reconsider his case for promotion with effect from the aforementioned date, within one month of the date of communication of this judgment in the light of the observations made by us. There will be no order as to costs.