' ROSHAN ALI MANGI (MEMBER).---Having been aggrieved by seniority list of M.E.S. (Civilian) Officers (BPS-17), in which the appellant was shown junior to respondents Nos.5 to 13 and, therefore,. Had submitted departmental appeal as on 31st August, 1991, which was rejected on 21-4-1992 and received by him on 29-10-1995 the appellant has filed present appeal before the Tribunal with the prayer to call for all the relevant records of the case for the inspecting of Tribunal and to set aside/reverse/modify/ quash the said impugned orders.
2. The relevant facts of the case as stated in the memo. Of the appeal are that an advertisement for the recruitment of 9 Assistant Executive Engineers, (B&R) (BPS-17) i,e, 4 (Architect) 1 (Town Planner) and 4 (Civil), was issued by the Federal Public Service Commission on behalf of the Ministry of Defence on all Pakistan basis except N.-W.F.P. And FATA quota which appeared in Pakistan Times on 29-4-1983.
3. However, respondent No,4 later on enlarged the number of vacancies to 33 and requested the Federal Public Service Commission to advertise and recommend the candidates for the enlarged vacancies. The FPSC instead of advertising the additional vacancies, advised the Ministry of Defence to accept the candidates already interviewed. Consequently 26 persons were recommended vide letter dated 3-4-1984. The appellant had also applied for one of the posts and was selected. His position in the selected list of 26 candidates was at Serial No, 18.
4. According to him only 17 persons actually joined the service. As a result the appellant was placed at Serial No, 11 in the said selected list. No candidate could be nominated against the remaining 7 posts because no suitable candidate was available. The details of these 7 vacancies were: Punjab 3, Balochistan 1, Sindh (R) 2 and Sindh (U)
1. Categorywise, 4 were for Civil and three were for Architects for which the F.P.S.C. Was advised to issue afresh advertisement.
5. The F.P.S.C. Instead of readvertising these posts on all Pakistan basis and in violation of law pursuaded the Ministry of Defence to make recommendations from the same old list by picking up people from otherwise unsuitable/rejected list according to appellant.
6. Consequently names of 10 persons in addition were recommended that too after about a year later vide letter ated 18-3-1985. Out of this list only six persons joined the service. To these appointees the appellant termed as "lateral entrants" for the sake of convenience.
7. The appellant joined the service alongwith 17 others on 1st August, 1984.
8. The first seniority list of M.E.S. (Civilian) Officers was issued in July 1985, which did not contain the names of six lateral entrants. Another seniority list was issued in 1989, which appellant has impugned in this appeal. In this seniority list the names of the private respondents Nos.5 and 6 who are Architect No, 7 who is Town Planner are shown senior to appellant but belong to different cadre under the Recruitment Rules, 1978, hence should be excluded according to him from the impugned seniority list. The second part of the private respondents i,e, Nos. 8 to 13 and shown senior to him are those of lateral entrants who were illegitimately selected and included in the revised list/or second lot hence cannot be given higher merits, status seniority over appellant as their very appointment is ill-gotten void and nullity in the eye of law.
9. When the said seniority list was circulated in 1989, the appellant was in Saudi Arabia on deputation and was not supplied with a copy. However, it was in 1991, when he came to know about it on his relegation to lower position i,e, 38, then he moved against the action of the competent Authority.
10. Dr. G.S. Khan, learned Advocate appeared on behalf of the appellant whereas Mr. Khalid Abbas Khan, Federal Counsel represented the Government alongwith Mr. Sadiq Ali Anjum, Assistant Director, F.P.S.C., Mr. Muhammad Altaf Zafar, Admn. Officer and Ghayyur Abbas for the official respondents. Respondent No,11 appeared in person.
11. It was pleaded that the appellant had submitted the departmental appeal on 31-8-1991, making a request that the name of respondents in the first group who are Architects and Town Planners be separated from the impugned seniority list as they belonged to separate cadre called "Directorate of Designing and Consultancy" as per formal sanction issued vide letter dated 24-12-1989.
12. In support of his contention the appellant informed the Bar that the respondent No,3 i,e, the Engineer-in-Chief in G.H.Q., had himself realised that situation wherefore requested for redesignation from Assistant Executive Engineer (B&R) to Principal Architect and Principal/Senior Town Planners vide communication dated 18-9-1995. In this regard according to him some decision could be made. Anyhow the appellant submitted that they cannot be senior and considered for promotion to the posts of Executive Engineers/(BPS-18) (Civil) since they are not qualified and registered Engineers hence cannot perform the Engineering work as defined in Pakistan Engineering Council Act, 1976. The consideration of their promotion to BPS-18 posts of Civil Engineer would, therefore, be illegal and in contravention of the mandatory provisions of the Pakistan Engineering Council Act, 1976, and the pronouncement made by the Hon'ble Supreme Court of Pakistan in a case reported in 1994 SCMR 1807 read with PLD 1984 Lah. 27 and 1993 SCMR 1800 (1808).
13. The respondents on the other hand maintained that the AXENs (B&R) Civil (Architect) and (Town Planners) were appointed as AXENs. They were appointed according to Recruitment Rules vide SRO 289(1)/89 of 17-3-1978, which were prevalent at that- time. Qualification for direct recruitment of AXENs (BPS-17) was B.Sc. Degree in Engineering from recognized University which means that B.Sc.
Engineer holding degree in any technology i,e, Civil Architect and Town Planner was eligible for appointment as AXENs that is why a joint seniority list was maintained by Engineer-in- Chief Branch.
14. As per current Recruitment Rules, 1988, the qualification for promotion to XENs (B&R) and (E&M) is Batchelor Degree in Civil/Architect/ Town Planner engineering from a recognised University. Since the respondents in question fulfil the above condition they cannot be deprived of their legitimate right of promotion to the next higher post of XEN (B&R), when due.
15. It was further informed at Bar, that the cadre of Principal/Senior Architect and Principal/Senior Town Planner and their line of promotion, as per Recruitment Rules, 1988, were quite different. AXEN (B&R) having degree even in the discipline of Area Town Planning/Architect are not eligible for promotion to the said posts.
16. From the above it becomes clear that although the respondents 5 to 7 were either Architects or Town Planners, but were selected as per recruitment rules, prevailing at that time i,e, 1978 Rules, wherein any Engineering Degree-holder could be selected irrespective of trade in the Engineering field so the respondents in question were selected purely on the basis of rules in vogue at that time, but not on any kind of trade as contended by the appellant. In view of this position we are sorry to subscribe to the stand of the appellant.
17. Had he any grievance against this position, then he should have agitated against the relevant rules soon after the appearance of the advertisement on 29th April, 1983, in Pakistan Times, which clearly mentioned as reproduced below: "NINE ASSISTANT EXECUTIVE ENGINEERS (B&R) (A) FOUR XEN ARCHITECT (B&R), (B) ONE XEN TOWN PLANNER (B&R), (C) FOUR XEN CIVIL ENGINEER (B&R), MILITARY ENGINEERING SERVICES, MINISTRY OF DEFENCE, Grade-17. Temporary for indefinite period."
' This all shows that they all belonged to B&R in respect of the trade, hence joint seniority. Or he should have agitated soon after their joining the B&R at that time, but he did not. In other words, he accepted that position.
18. It was further pleaded that advertisement initially was for 9 posts. However, a fresh requisition containing 25 posts was sent to the F.P.S.C., which according to learned counsel needed fresh advertisement. As such the persons selected in subsequent second selection would be junior to those selected in first selection. He argued that the six selectees to whom he called "lateral entrants", were declared unsuitable for the appointment by the F.P.S.C. But later on, they were unlawfully recommended for the appointment. Thus, it was in violation of provision of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Besides this, the recruitment on the basis of subsequent requisition and from the same list, was also a violation of Fundamental Right, hence contrary to the rights of general public and citizen of the country and was in fact unconstitutional and void ab initio.
19. It was further contended that the practice of keeping a waiting list in "Competitive Examination" system is actually introducing a contradictory system, because the waiting list is maintained in a qualifying examination only while in a "Competitive Examination" all vacancies are filled up in one go.
20. It has been admitted by the respondent No, 4 that originally the F.P.S.C. Had advertised 9 posts of Assistant Executive Engineers (B&R) (BPS-17) on 29-9-1983, which included (A) Four Assistant Executive Engineers (Architects) (B&R), (B) One Assistant Executive Engineer (Town Planner) (B&R) and (C) Four Assistant Executive Engineers (Civil) (B&R), with quota allocation: Merit - one, Punjab 4, Sindh (U) 1, Sindh (R)2 and Balochistan 1. It was maintained that while the interviews for these posts were in progress when another requisition containing 25 posts was received in F.P.S.C. From Ministry of Defence. Due to the urgency shown by the Ministry of Defence and to save the time, labour, and burden on the public exchequer, out of 25 newly' requisitioned posts 24 were merged in the earlier requisition of 9 posts, raising the total number of posts from 9 to 33. With the addition of 24 posts, the quotawise/subject (trade-wise) distribution of posts became as under: {{TABLE}} Subiect (trade-wise) distribution Architects = 4+4 = 8 Town Planner = 1 Civil Engineers = 4+20 = 24 Quota-wise distribution.
Merit = 1+1 = 2 Punjab = 4 +16 = 20 Sindh (U) = 1+3 = 4 Sindh (R) = 2+3 = 5 Balochistan = 1+1 = 2 TOTAL: 33 33 {{TABLE}}
21. One post out of 25, which was reserved for A.J.K. Quota, could not be merged with the already advertised 9 posts, because of the fact that no post meant for that quota was advertised earlier.
Out of 38 candidates, who appeared before the F.P.S.C. For interviews, 36 got the qualifying marks.
They were arranged in order of merit and out of them 26 were actually nominated against the available posts. However, remaining 10 candidates on the merit list could not be recommended due to non-availability of a candidate, either in the required trade or in the required quota. From this it follows that out of 33 posts, 7 of the following quota remained unfilled due to non-availability of qualified candidates of the required quota or trade: ' Punjab 3, Balochistan 1, Sindh (R) 2, Sindh (U) 1 relating to Civil 4 and Architect 3.
22. Based upon the above position, it was controverted, if the contention of the 'petitioner, that the candidates who could not be recommended due to (quote or trade restrictions were unsuitable or unqualified, was correct. It was stressed, that they were very much suitable and qualified but could not be recommended due to quota and trade restrictions.
23. It has further been explained that the Ministry of Defence vide letter dated 4-2-1985 intimated the F.P.S.C. That out of its nominees recommended from time to time in various .Cases, 18 did not join the posts. Ministry of Defence further intimated that due to deficiency of officers, the work on ongoing projects undertaken by the M.E.S. Was suffering badly. In view of the urgency _shown by the Ministry of Defence, the F.P.S.C. Decided to recommend candidates from reserve/waiting list to meet the emergent requirements. According to respondent No, 4, this action was taken in accordance with its policy decisions dated 2-1-1971, 6-1-1973 and 17-3-1982, regarding maintaining a reserve/waiting list for the period of one year to meet the emergent requirements of the sponsoring departments. Accordingly, following 10 candidates who could not be recommended earlier, due to non-availability of posts in the required trade or quota were recommended in place of those who did not join their posts: {{TABLE}} S.No, Name of candidate Subject/Trade Domicile Mr. Salim Hussain Afridi Civil Engg. NAFATA Mr. Ihsanullah Khan -- do -- N.-W.F.P.
Mr. Abdul Rehman Ibrahim Town Planning N.-W.F.P.
Mr. Khalid Mehmood -- do -- PUNJAB Mr. Ghulam Muhammad Architect NAFATA Mr. Muhammad Imtiaz Civil Engg. NAFATA Mr. Ayaz Mahmood -- do -- N.-W.F.P.
Mr. Abdul Ghaffar Town Planning PUNJAB Mr. Fayaz Hussain Naqvi -- do -- PUNJAB Mr. Khalid Khan Civil Engg. N.-W.F.P. {{TABLE}}
24. It was, therefore, argued that since these 10 candidates were recommended from the same merit list out of which 26 candidates were recommended earlier, they were, therefore, required to be arranged according to the original order of merit which was the order of their seniority also.
Hence appellant's contention that they were lateral entrants is not sustainable. It has been argued further that candidates so selected in a single batch retain their seniority as per order of merit assigned by the F.P.S.C. Irrespective of their date' of joining.
25: Initially only 9 posts of the various trades for various domiciles was advertised by the F.P.S.C. On behalf of the Ministry of Defence. This number was enhanced to 33. Although it was urged by the Ministry of Defence to advertise in a subsequent advertisement, but they did not. On the contrary the respondent No, 4 advised the Ministry of Defence to accept the candidates, already interviewed and recommended, on the basis of first advertisement.
26. F.P.S.C.'s. List of qualified candidates as prepared by the F.P.S.C. On the basis of marks/merits as provided to the Ministry of Defence vide letter dated 17th March, 1985, reveals that, it already contained the names of these candidates, who belonged to N.-W.F.P. And F.A.T.A., who were not supposed to be interviewed as there was no quota available in those 9 posts, advertised by the F.P.S.C. Although the representative of the respondent No, 4 took the position that 1 or 2 posts were reserved for the merit quota, but the list provided by the F.P.S.C. Shows that out of 36 candidates so declared qualified, none of the candidates either from N.-W.F.P. Or N.A.F.A.T.A., actually qualified against the merit posts. Even then 7 candidates were recommended for appointment, when there was no vacancy in their quota, as such the stand as taken by F.P.S.C. Is not correct under the law, as these posts were allocated to other than either N.-W.F.P. Or N.A.F.A.T.A.
27. On the contrary, it appears very surprising that although the Ministry of Defence .Desired to advertise the enhanced posts, but the F.P.S.C. Did not, for the reasons best known to them. In fact, in the enhanced vacancies, the number of posts allocated to various provinces was increased, since the number was increased from 9 to 33, it was incumbent on the part of F.P.S.C. To issue subsequent advertisement to provide chance to all the candidates belonging to the various provinces to apply for the relevant posts. This would have increased the number of candidates, as such the quota as assigned to various provinces, would have been fully filled in. Since only 9 posts were initially advertised, therefore, only few candidates actually applied for these posts, specially from Sindh and Balochistan, in whose case number of posts was almost doubled i,e, in case of Sindh (U) posts increased from 1 to 3 and that Sindh (R) from 2 to 3 and in case of Balochistan from 1 to 2. Had this been brought to the notice of the candidates throughout the country in the subsequent advertisement, probably more would have *plied for the said posts. As such the excuse of respondent No, 4 of non-availability of the suitable candidates is not tenable.
28. Now coming to grievance of the appellant, initially only 9 posts were advertised. The appellant too applied for one of them. However, the consolidated result shows that he was not one of the selected first 9 persons. In other words had the first 9 persons been selected, as per advertisement, surely the appellant would not have been selected. As such he would also be termed as a lateral entrant. So, if the respondents whom he calls as lateral entrant are illegally selected, he would be no exception to said selection. The admitted fact is that 36 candidates were selected in one go and the seniority was arranged in the order of merit. Out of this merit list, initially 26 persons were recommended for appointment. And the name of the appellant was placed at Serial No,
18. Since no candidate could be nominated by the F.P.S.C. Against the remaining 7 posts, reserved for Sindh and Balochistan, therefore, a fresh list of 10 persons, who belonged to N.-W.F.P. And N.A.F.A.T.A., whose names were already included in the said merit list and in the order of merit was sent to the Ministry of Defence for appointment. And accordingly the seniority was re-adjusted on the basis of said merit. In this said merit list, the appellant was placed at a lower position on the basis of merit.
We are not going into the merit of the said merit list nor we are going into its legality, but the admitted fact is that the said seniority list reveals that the appellant ranked in lower position than the respondents. Under the circumstances, the general rule of seniority will operate. Accordingly, the appellant will reckon his seniority on the merit position that he acquired in examination. As such the respondent No, 4's decision in assigning the position to the appellant would be in order and in this situation we have no alternative, but agree with them.
29. The upshot of the above discussion is that, the appellant's objection that on the enlargement of number of vacancies, a fresh advertisement should have been issued is justified. In this regard, the F.P.S.C. Has erred. As regards his prayer to declare him senior to those who were recommended for appointment in 1985, as they were appointed later than him is not justified, as all the 36 persons selected, were arranged in the order of merit. The appellant's merit was lower than the relevant respondents. Since all were selected in one batch and according to the general principles, they would be put in order of merit. The respondents ranked higher in the order of merit, therefore, they ranked senior to the appellant. As regards his grievance, that, those who were selected either as Architects or Town Planners should be separated from the impugned seniority list, on the plea that they belonged to separate cadre, we find that they were selected as per 1978 Recruitment Rules, as such we do not find any illegality in these appointments. If the appellant had any grievance he should have agitated against it, either at the time of appearance of the advertisement or soon after the appointment of these respondents but he did not, at that time. Now it is too late to agitate.
30. Concluding the above discussion, we find that the appellant was assigned his seniority according to his performance in examination and respondents Nos. 5, 6 and 7 were selected according to 1978 Rules and rightly. In this regard, his grievance appears unjustified. With these observations, we dismiss the appeal having no substance with no order as to costs.
31. Parties be informed.