' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Briefly, the facts of this appeal are that the appellant after acquiring the Diploma in Associate Engineering in Electrical Technology from Government College of Technology, Karachi, was selected for appointment as Sub-Engincer (E/M) in B-11 and was appointed as such with effect from 6-12-1980 in Pak. P.W.D. Thereafter, he passed B. Tech.
(Hon.) Electrical from N.E.D. Engineering and Technology University, Karachi in the year 1987. He also passed the departmental examination in 1988 and accordingly he was granted Selection Grade B- 16 with effect from 24-3-1992. In the meantime amendment in the Recruitment Rules of 1984 was made by the Works Division vide S.R.O. No,65 (I)/94, dated 22-1-1994, to the effect, inter alia, that 25% of the posts in BPS-17 shall be filled by promotion and 75% by initial appointment, with 13 years service in BPS-11 and above, and passing of the departmental examination prescribed for placement in selection grade. According to the appellant, since he had put in 13 years and having passed the departmental examination, he was eligible for promotion to the post of Assistant Executive Engineer (E/M) (B-17). In February, 1994, 'the department considered the cases of eligible candidates for promotion to three posts of Assistant Executive Engineers (E/M) in B-17, and the D.P.C. After considering the service record of the candidates, recommended the appellant and two others for promotion, but the competent Authority did not approve the name of the appellant and cleared the other two candidates for promotion, and the post against which the appellant was recommended was kept in abeyance in favour of one Mr. Gul Marjan, who though was senior to appellant, but was not eligible for promotion as he had not passed the departmental examination which was mandatory according to the Recruitment Rules. The appellant came to know of this fact when Notification, dated 26th March, 1994 was issued, whereby only two persons were promoted to the post of Assistant Executive Engineer (E/M), and his name was omitted. This gave cause of grievance to the appellant and he made departmental representation dated 28-3-1994 to the Secretary, Establishment Division, but the same was not responded. He then filed this appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973.
2. We have heard Mr. Kanwar Mukhtar Ahmed, the learned counsel for the appellant at length. It is argued that the case of the appellant was placed before the D.P.C. Alongwith others for promotion to the post of Assistant Executive Engineer (E/M) in B-17. He was approved by the D.P.C. The recommendations of the Committee were sent to the competent authority for approval. It is argued that the competent Authority wrongly without jurisdiction did not approve the case of the appellant and reserved the post in favour of one Mr. Gul Marjan, who even otherwise was not eligible for consideration for promotion as he had not passed the requisite departmental examination, as provided under the Recruitment Rules. Whereafter that post was abolished. It is argued that at the relevant time there was clear-cut vacancy and the appellant being eligible and duly recommended by the D.P.C., was entitled to be promoted to that post from that date. It is also argued that in this case the question of fitness of eligibility does not arise and as such the Tribunal has got the jurisdiction to entertain this appeal.
3. Mr. Niaz Ahmed Khan, the learned Standing Counsel for the respondents has appeared alongwith the departmental representatives, M/s. Liaqat Ali, Section Officer, Works Division and Ghayyur Abbas, Assistant, Establishment Division. This factual position has not been denied by them but they only stated that subsequently the third post was abolished and, therefore, the notification could not be issued.
4. There were three vacancies of Assistant Executive Engineers (E/M) in B-17 and a panel of four persons, including the name of the appellant, was placed before the D.P.C. Their names in order of seniority are as under:-
(1) Mr. Muhammad Wasi Zaidi.
(2) Mr. Gul Marjan.
(3) Mr. S. Firasat Ali.
(4) Mr. Barkatullah Khan.
' The Committee after due consideration recommended the names of M/s. Muhammad Wasi Zaidi, Syed Firasat Ali and Barkatullah Khan (the appellant), and the name of Mr. Gul Marjan was not recommended as he lacked the condition of passing of the requisite departmental examination.
However, the competent Authority approved the promotion of two candidates and the third vacancy was reserved for Mr. Gul Marjan, who was senior to the appellant, on the ground that by that time he had not passed the departmental examination and as soon as he passes the examination, he will be promoted. As such, the appellant was deprived of promotion although he was fully qualified for promotion. This position has not been denied by the learned counsel for the respondents as well as the departmental representatives. We fail to understand as to how an eligible person in preference to an ineligible person has been deprived of his legitimate right of promotion, and to justify the wrong done, no law has been quoted or brought to our notice. Now the respondents have taken the stand that due to abolition of the third post, there is no vacancy against which the appellant could be accommodated, but the fact cannot be denied that when the appellant was recommended by the D.P.C. For prombtion, there existed a clear-out vacancy, but he was deprived of promotion due to mala fide action, and such an arbitrary action cannot sustain in the eyes of law. We, therefore, accept this appeal and direct the respondents that the case of the appellant be processed for promotion as Assistant Executive Engineer (E/M) in B-17 by creating a supernumerary post from the date when his name was duly recommended by the D.P.C.
And his colleagues were promoted as such against clear-cut vacancies. This exercise shall be completed within a period of three months and compliance be reported to the Tribunal.