' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. MA. Hakeem was working as Head Clerk, D.S. Office (Commercial Branch), Sukkur. By order dated 9-7-1987, he was appointed to officiate as Commercial Inspector, pending D.P.C./selection, and was posted as such vice Mr. Maqbool Ahmed Khokhar who was reverted as Claims. Inspector. By order dated 7-2-1993 he was cleared for promotion by the D.P.C. And his name was placed alongwith others on the approved panel in order of seniority. The appellant was appointed to officiate as CMI/B-16 on clearance by the D.P.C., and was - posted at Karachi Port against an existing vacancy by order dated 10-3-1993. A provisional seniority list of Commercial Inspectors/B-16 was prepared and circulated vide letter dated 12-2- 1994, wherein the name of the appellant appeared at &No,
22. However, by order dated 16-6-1994, issued by the General Manager (Personnel) the order of promotion of the appellant and four others was cancelled on the ground that they were not due for promotion as CMI/B-16 according to their category quota. Being aggrieved, he made representations firstly on 21-6-1994 addressed to the General Manager, Pakistan Railways Headquarters, Lahore; secondly on 22-6-1994 thirdly on 27-6- 1994 and lastly on 29-7-1994, but none of the representations was responded. He then preferred this appeal before the Tribunal on 10-10-1994. He also moved an application for ad interim and by order dated 3-1-1995, stay was granted against reversion order.
2. The appellant has argued his case at length. His contention is that in the year 1987 there was 10% reserved quota for the Head Clerks and the appellant having qualified the departmental examination, i.e, P-15 prescribed course from Walton Training Institute Railway, Lahore, was eligible for promotion and was appointed to officiate as CMI/B-16 pending decision by the D.P.C., against the existing vacancy. It is argued that thereafter the rules were changed whereby Head Clerks and special Ticket Examiners were merged together and were put in one and the same category for future promotion as CMI/B-16, raising the quota from 10 to 12% but amendment in the rules were not retrospective. He argued that his case was not placed before the D.P.C., therefore, he continued in officiating capacity, otherwise he was entitled and eligible for regular promotion right from 1987, having qualified the requisite examination, whereas the others Ticket Examiners passed the said examination in 1992, and those persons could not be equated with the appellant. As such, the question of their inter se seniority is immaterial and is not attracted in his case. It is argued that order of reversion, without due notice, is bad in law and he has cited several authorities on this proposition.
3. The respondents have filed comments. The learned counsel for the respondent Railways, Mr. Ch. Rashid Ahmed,. Submitted that the appellant was given the charge of CMI/B-16 on officiating basis and he cannot claim regular promotion. He also submitted that after the appointment of the appellant as CMI, some senior persons made representations which were duly considered and examination of the entire, it was found that the appellant's appointment as CMI was against reserved quota and as such order of his reversion was issued by the competent authority. It has been argued that the impugned order of reversion was passed by the General Manager, and the appellant should have made departmental appeal to the next higher authority who was the Chairman, but instead he made appeal to the General Manager, the same authority who had passed the order and as such this appeal is not competent. It is submitted that General Manager and General Manager Personnel are not different officers.
4. The appellant was given charge of CMI/B-16 by order dated 9-7-1987 pending clearance by the D.P.C., therefore, it is clear that he was senior and his case was covered under the prescribed quorum of 10% for Head Clerks and against a clear vacancy and as such he was eligible for the post of CMI/B16. The subsequent amendment in the rules raising the quota from 10% to 12% cannot have retrospective effect. The appellant has placed on record several documents to show that he qualified the departmental examination in 1986 whereas the private respondents cleared the said examination in 1992, and therefore, at the relevant time the appellant was appointed as CMI, none of them was eligible for consideration for promotion as CMI, and the appellant's case was not placed before the D.P.C. Up to 1993 in spite of his being eligible and the matter was delayed and ultimately cleared by the D.P.C. and was posted as such at Karachi Port vide order dated 16-3-1993, under the orders of the competent Authority. The contention of the respondents is that the private respondents were senior to the appellant, may be so, as Special Ticket Examiners and not as Head Clerks of which 10% quota was reserved when Ticket. Examiners were not eligible. Moreover, the fact cannot be denied that the appellant had passed the departmental examination of p-15 course in 1986 while the private respondents cleared the said examination in 1992, and they were not eligible for consideration alongwith the appellant, and the appellant was rightly promoted as CMI/B-16. It is also an admitted fact that the appellant held the post of CMI/B-16 right from 1987 being eligible and qualified after passing the examination till the passing of the impugned order, and under the rules any stop-gap arrangement cannot continue for an indefinite period but such an appointment can be made at the most for a period of six months, and not beyond that, therefore, it cannot be said that it was a stop-gap arrangement. In these circumstances, a vested right had created in favour of the appellant and such an appointment could not be revoked or rescinded arbitrarily without serving any show-cause notice. Therefore, the impugned order of reversion of the appellant, in these circumstances, is void ab initio and cannot sustain.
5. The respondents have taken legal objection that the appellant did not file departmental appeal to proper authority, and therefore, this appeal is not competent. It is argued by the appellant that the impugned order of reversion of the appellant was passed by the General Manager (Personnel) and the appellant challenged that order by making appeal to the General Manager, Pakistan Railways Headquarter, Lahore, who is an officer in B-21, next above the General Manager (Personnel) who is a Grade-20 Officer. This has not been controverted. Therefore, in our view, the appellant rightly made appeal to General Manager Pakistan Railways, being the appellate authority in his case. It may also be observed that the appellant did exhaust departmental remedy by making departmental appeal to the General Manager, Pakistan Railways, and in case he was not the appropriate authority in case of the appellant, it was incumbent upon the said authority to have forwarded the departmental appeal to the proper authority, which has not been done, and the appellant cannot be made to suffer on this ground. Therefore, the objection of the respondent Railways is repelled.
6. For the reasons recorded above, the appeal is allowed and the impugned order of reversion of the appellant passed on 16-6-1994 is set aside, and the appellant is restored to his post as CMI/B- 16 as if he was never reverted. Private respondent No,5, Muhammad Anwar Bajwa, was party and he has neither filed comments nor contested the appeal at the time of regular hearing.