' ROSHAN ALI MANGI (MEMBER).---The facts and the law applicable in these two appeals i,e, Appeals Nos. 516(R) of 1995 and 517(R) of 1995, are identical, we, therefore, propose to dispose of them with a single order.
2. Seniority roll of the all N.H.A. Regular Employees (BPS-20 and below) was circulated vide letter, dated March 8, 1995. The objections were invited up to 31-3-1995. Since the names of the appellants were shown below the name of the respondent No, 4 in said seniority roll, they, therefore, submitted their objections -- appellant Mr. Muhammad Yousuf on 29-3-1995 whereas appellant Khalid Waseem on 19-3-1995.
3. However, their appeals were withheld vide letter, dated 23rd July, 1995, and the relevant letter is reproduced below: " NATIONAL HIGHWAY AUTHORITY ' No, 13(1)-ADMN(P)/NHA/95/2322, Islamabad, dated 23-7-1995.
(a) Mr. Khalid Waseem, Stenographer (B-15)
(b) Mr. Barkat Ali, Stenographer (B-15)
(c) Mr. Muhammad Yousaf, Stenographer (B-15) Subject:-- SENIORITY AS STENOGRAPHER Reference your appeals regarding the subject-matter.
' The competent Authority has withheld your appeals under rule 7(1)(c) and rule 7(1)(e) of Appeal Rules, 1977, on the following grounds and I am directed to inform you that:--
(a) Seniority lists of regular strength were circulated twice (in 1989 and 1991) and your names were shown on the cadre of Stenotypist (B-12) in Regular Cadre against which you were retaining lien but none of you represented for placing you as Stenographer.
(b) In May, 1990, options were invited from you if you were interested in availing Selection Grade (B- 14) as Stenotypist in Regular Estt. But all of you did not opt for the same and instead have confirmed the plea that you were retaining lien on your substantive posts in Regular Estt: as Stenotypist. This is also clear that you admitted your appointment as Stenographers (B-15) on project strength.
(c) You were absorbed as Stenographers (B-15) in Regular Estt: with effect from 1-7-1992, but none of you filed appeal against such absorption with the claim that you were allegedly already regular and that absorption was not relevant in your cases, it too proves your acceptance to the appointment as Stenographers (B-15) on work charge basis.
(d) You are aggrieved by the Order dated 12-12-1992, by which you were absorbed in B-15. You did not submit any appeal within prescribed limit of time and now your appeals in this regard are time-barred.
2. Office Order No,1(1)-FHP/Admn/87, dated 3-12-1987, regarding your alleged promotion against work charge posts, is irregular being issued without any lawful grounds, stands rectified accordingly.
(Sd.)
(ALI AKBAR MEMON) Deputy Director (Personnel)"
4. The two appellants feeling aggrieved, therefore, appealed to the Director (Administration) N.H.A., Islamabad on 21-8-1995, against the impugned seniority roll, with the prayer to restore their seniority with effect from 3-12-1987 on which they were promoted to B-15 and accept the objection so submitted. In other words to set aside the impugned order dated 23-7-1995 in to. But failing to get the positive response, even after the passage of mandatory period of 90 days, they have preferred the present appeals.
5. The brief facts of the two appeals are that the two appellants were appointed as Stenotypists on a regular basis with effect from 3rd December, 1987 vide office order, dated 3rd December, 1987.
The respondent No, 4 on the other hand was appointed as a Stenographer on work charge basis with effect from 4th March, 1987. The date of absorption as Stenographer of the two appellants as well as that of respondent No, 4 is shown in the said impugned seniority list as 1st July, 1992. The appellants were promotee Stenographers on a regular basis since 21st November, 1982 i,e, the date of their appointments as Stenotypists. The respondent No, 4 on the other hand was appointed as Stenotypists with effect from 2nd October, 1986 as Stenographer on work charge basis on 4th March, 1987. But both the appellants as well as the respondent No,4 were absorbed in N.H.A. On one and the same date i,e, 12-12-1992.
6. Under Rule 20(i), the seniority of those employees who opt for transfer from National Highway Board permanent establishment to the Authority shall be reckoned from the date of their direct appointment/promotion. Under rule 38 of the National Highway Authority Rules, any order passed or appointment made or anything done or any action taken or any proceeding taken under the provisions of the repealed rules of National Highway Board will continue in force and be deemed to have been passed, made, done, taken or commenced, as the case may be under the corresponding provisions of these rules as if these rules were enforced when such order was passed. These rules, therefore, covers the appellants promotion as Stenographers with effect from 3-12-1987.
7. The respondents Nos. 1 to 3 have not only challenged the appellants regular promotion dated 3- 12-1987 into one of work charge basis but has also not accepted the objections so submitted to them against the impugned seniority roll on the grounds that they (appellants) did not challenge the seniority list circulated in 1989 and in 1991. In fact, the respondent No, 4 was appointed as Stenographer on work charge basis, and became regular only on 12-12-1992. As such his name was not mentioned in the seniority list either of 1989 or of 1991. Therefore, they did not challenge those seniority lists.
8. The appellants were appointed as regular Stenotypists with effect from 21-11-1982, and were promoted on regular basis as Stenographers with effect from 3-12-1987. The respondent No, 4 on the other hand was appointed on work charge Stenotypist since 2-10-1986, and Stenographer on 4-3-1987 also on work charge basis. And the appellants, as well as the respondent No, 4 were absorbed on regular basis as Stenographers with effect from 12-12-1992. Under the circumstances, the appellants being regular Stenotypists as well as regular Stenographer, would rank senior to the respondent No, 4 under rule 19 of Chapter III of N.H.A. Service Rules, 1995.
9. The objections have been filed on behalf of the respondents Nos. 1 to 3 as well as by the respondent No,
4. The appeals have vehemently been resisted, on behalf of the respondents Nos. 1 to 3. It has been contended on the other hand that the appellants along with two others, while working in the department N.H. Board on a regular basis as Stenotypist (B-12) applied for the post of Stenographers (B-15) in the Fourth Highway Project. The incumbents after proper test/interview were offered the appointments on work charge basis vide letter, dated 22nd August, 1987, which they accepted vide their applications, dated 27th August, 1987. Though the appellants were departmental candidates yet their appointments on work charge were certainly not a promotion.
As per rules no promotion is admissjble unless there is a regular and clear vacancy, as such there was no question of promotion against a work charge post which was sanctioned for duration of the project and liable to be terminated on its completion. Moreso, promotion was not approved by the competent Authority hence promotion orders were wholly illegal, hence were rectified vide impugned order.
10. Although there was no concept of seniority among the work charge employees yet to have a standing merit list for future career/service a list of all work charge employees was prepared and circulated among all concerned. Based on this order, the appellants along with all other were considered for absorption against the available posts in the Regular Establishment with effect from 1st July, 1992. As such it is explained that the seniority in a Regular Establishment was awarded on the basis of date of appointment in the particular cadre and in accordance with the merit list of work charge employees as mentioned above. The age factor comes to play role in case Where there is no other course left, it was, therefore, not resorted to as merit of work charge employee was available.
11. It has been contended that the appellants, were appointed as Stenographers (B-15) on 3-12- 1987, on a work charge posts on the recommendations of a Selection Committee, and were allowed to retain their lien on their substantive post of Stenotypist in Regular Establishment. Their appointment it has been argued in B-15, therefore, cannot be termed as promotion as claimed by the appellants. The appointment of respondent No,4 as Stenographer was too of the similar nature.
12. It has also been denied if at all, the appellants were promoted as Stenographers on their selection to the post of Stenographer, both the appellants were asked to give their willingness to revert to Regular Establishment as Stenotypist (B-12) and avail Grade (B-14), however, they did not agree to revert and opted to remain on work charge basis as Stenographer (B-15).
13. It was further dilated that the appellants were never 'promoted and the orders to that effect were, therefore, rectified vide impugned order.
14. We have heard both the parties and perused all the documents available on the file.
15. The crucial point before us to examine is whether the appellants were promoted on regular basis as Stenographer (B-15), as claimed by them. In this regard they have produced an office order dated 3-12-1987, the relevant portion is reproduced below:-- "DIRECTORATE GENERAL NATIONAL HIGHWAYS ' No, 1(1)-FHP/Admn/87, Islamabad, the 3-12-1987 OFFICE ORDER ' Having been selected for the post of Stenographers (B-15) against sanctioned posts in Fourth IBRD Highway Project, the following Stenotypists (B-12) of Directorate-General, National Highways regular establishment are promoted as Stenographers (B-15) with effect from 2nd December, 1987 (AN):-
(a) Mr. Khalid Waseem
(b) Mr. Barkat Ali
(c) Mr. Muhammad Yousaf
(d) Mr. Javaid Sultan (the appellants name appear at Si. "a and c")
2.
(Sd.)
(SIRAJ AHMAD)
' Deputy Director (Admn and Budget)."
16. The respondents on the other hand contended that a project of National Highways Board i,e, Fourth IBRD Highway Project was started. In this project four posts of the Stenographers were created and advertised in the public press, on work charge basis. The appellants also applied for the same. They appeared before the Selection Committee for test/interview and were selected as Stenographers (B-15) on work charge basis. In this regard they produced their appointment letters.
The perusal of these letters shows that their appointments were purely on temporary on workcharge basis initially for a period of one year or till the completion of the project whichever was earlier. In their acceptance letter of 27th August, 1987, they clearly requested to be relieved from DGNH to be able to join their fresh assignment on or before 1st September, 1987.
17. In response to the option offered by the authority vide memo, dated 11th May, 1990, whereby the appellants, were asked to revert to DGNH and avail the Stenotypist Selection Grade (B-14), within a week's time of the receipt of the letter, they replied vide letter dated 5-6-1990 (by Muhammad Waseem) and 4th June, 1990 (by Muhammad Yousaf) separately, that they were unwilling to revert back to DGNH, as Stenotypists and avail Selection Grade B-14. However, they had prayed that their seniority position would not be changed and that their promotion to Stenographer (B-15) would be considered against a future vacancy in DGNH, regular establishment as had been done in previous cases.
18. From the above discussions, it clearly follows that the appellants were regular Stenotypists in B-
12. They had applied for the post of Stenographer (B-15), which were created in 4th High Way Project and advertised. They were interviewed, cleared and appointed temporary on work charge basis initially for a period of one year or till the completion of the project whichever was earlier. As such the order of their promotion so produced is not understood. This order later on was, however, rectified by the authority vide impugned order, and we believed correctly.
19. It now comes out clear from the above that appellants as well as the respondent No,4, were selected for Fourth High Ways Projects as Stenographers (B-15), on work charge basis. The appellants were appointed with effect from 3-12-1987, whereas the respondent No,4 with effect from 4-3-1987, However, all three were absorbed as Stenographers (B-15) with effect from 12-12- 1992.
20. This position was admitted by the learned counsel at Bar on behalf of the appellants. However, his grievance was that, since the appellants, were regular Stenotypists, in B-12, and were appointed even on work charge basis in Fourth Highway Project, along with the respondent No, 4, and all were absorbed on the same date as Stenographers, their seniority should, therefore, be reckoned on the basis of regular appointment in lower grade, also because they were departmental promotee, already working on regular basis. In other words they being a departmental candidates and departmental promotee should rank senior to respondent No, 4 who worked on work charge basis thus to be treated as a direct recruit, as all were absorbed on the same date.
21. The respondent-department on the other hand argued that although there was no concept of seniority among the work charge employees, yet to have a standing merit list for further career/service a list of all work charge employees was prepared and circulated among all concerned. Based on this order, the appellants along with other were considered for absorption against the available vacancies in the Regular Establishment in the order of merit. In other words, it has clearly been admitted, that no set of rules were applied while preparing such a list. Nor any list has been placed on the file, which could show, that the seniority so assigned in the impugned seniority was based on the merit order. Under the circumstances we feel no hesitation, in declaring the appellants to rank senior to respondent No, 4, being the departmental employees, and on regular basis in their lower .Rank, hence falling within the ambit, departmental promotees and as such would rank senior to the respondent No, 4 under the law.
22. For the reasons recorded above, we accept the appeal and direct the respondent to modify the impugned seniority and show them to rank senior to the respondent No, 4 in the said seniority list.
' No order as to costs. Parties be informed.