RAJA BASHIR AHMAD KHAN (CHAIRMAN). ---This is an appeal against the Notification No. Works/8203-18/93, dated 26-8-1993 whereby the promotions of appellant and respondents Nos. 3 to 6 were ordered by the Government. The date of promotion of appellant as given in this Notification is 14-12-1991 whereas the dates of promotion of Abid Jahfari, Muhammad Bashir Sani and Muhammad Arif Butt is 28-11-1991 and that of Niaz Ahmad Siddiqui is 12-12-1991. The appellant was appointed as Assistant Engineer on 30-9-1989 in his own pay and scale against the 20% quota reserved for Sub-Engineers (B-16) in the Department. Respondent Muhammad Arif Butt earned appointment as Assistant Engineer alongwith the appellant. Respondents Abid Jahfari, Muhammad Bashir Sani and Niaz Ahmad Siddiqui, Sub-Engineers B-16 were also appointed purely on temporary basis in their own pay and scales as Assistant Engineers against the quota reserved for initial recruitment. The appointment of these respondents was to last till the appointment on permanent basis of the Assistant Engineers recommended by the Public Service Commission.
Respondents were reverted to their posts of Sub-Engineers on the appointment of direct appointees vide Notification No. Works/86-91/91, dated 28-5-1991. The appellant was reverted to permanent post of Sub-Engineer and respondent Muhammad Bashir was appointed in his place vide Notification No. Works/612-22/91, dated 28-11-1991. The services of appellant as Sub-Engineer in the P.W.D. Were placed at the disposal of Auqaf Department as Assistant Engineer through Notification No.Admin/A-3(10)S.O.V/91, dated 12-12-1991.
2. The appellant has challenged the impugned Notification on the following grounds:-- GROUNDS
(a) That the appellant was promoted on his own pay and scale on the post of Assistant Engineer vide order dated 30-9-1989. None of the respondents lodged any review, revision etc. Against the said order of promotion of appellant. The order of reversion dated 28-11-1991 has been withdrawn vide order dated 12-12-1991 and 1-9-1992 respectively. The orders dated 12-12-1991 and 1-9-1992 were never challenged by the respondents and continuity to the promotion of appellant on the post of Assistant Engineer on his own pay and scale has been accorded by the Competent Authority.
(b) That on the basis of date of promotion on the post of Sub-Engineer, the appellant is senior than respondents and the seniority list finally published on 5-8-1989 was not challenged in accordance to law by the respondents, in this state of affairs, subsequent seniority list dated 29-1-1991 is void and the operation of said seniority list has been suspended by the Prime Minister. Resultantly, the seniority position assigned to appellant vide seniority list dated 5-8-1989 is intact and the appellant is senior than the respondents 3 to 6.
(c) That the respondent No. 2 misled the Selection Board concerned and has provided incorrect particulars of service of parties, therefore, the order-dated 26-8-1993 is without jurisdiction.
(d) That while the case of appellant and respondents was under consideration before the Selection Board concerned, vide letter dated 15-7-1993 the respondent No. 2 sent for the latest particulars of the appellant and respondents with respect to holding by each of them the post of Assistant Engineer on their own pay and scale. The abovementioned letter was replied by Chief Engineer vide his letter No. 6965-66, dated 3-8-1993, copy of which is Annexure 'R'. Perusal of the abovementioned letter would show that the Chief Engineer had clearly reported that the appellant is holding the post of Assistant Engineer continuously with effect from 30-9-1989. Despite the fact that the Selection Board concerned was appraised of the fact that the appellant in holding the post of Assistant Engineer with effect from 30-9-1989, had not accorded the date of promotion on the post of Assistant Engineer with effect from 30-9-1989.
(e) That the appellant has been dealt discriminately by the respondents qua, the respondents 3 to 6 were promoted from the dates of their holding posts on their own pay and scale, whereas the appellant was not promoted from the date of holding the said post.
(f) That the seniority position of appellant and the fact that appellant was deemedfit to hold the said post prior to the respondents was not taken into consideration by the respective Selection Board.
(g) That the rules of service governing the parties shows that 20% posts of Assistant Engineers reserved for diploma holder Engineers is to be filled in on the basis of merit. The Selection Board failed to take into consideration the merit of appellant. In this view of the matter the order dated 26-8-1993 is illegal.
3. Respondents have filed written statements denying the contents of the memorandum of appeal.
The appellant has reiterated his claim as set out in the appeal.
4. We have heard the counsel for the parties and have gone through the record.
5. The appellant elected to produce no evidence in support of his case and respondents also did not produce any evidence.
6. The first contention of the counsel for the appellant is that the appellant was promoted on 30-9- 1989 as Assistant Engineer in his own pay and scale and he continued to hold the post of Assistant Engineer without any interruption in the service as such till he was regularly promoted to the post of Assistant Engineer vide order dated 12-12-1991 and order dated 1-9-1992. On the other hand the counsel for respondents has controverted this contention by submitting that the order-dated 30- 9-1989 was cancelled by the Government vide order-dated 28-11-1991. The order-dated 28-11-1991 was not withdrawn by the Government and, therefore, the case set up by the appellant is not correct.
7. While going through the record we find that the order dated 30-9--1989 was cancelled through order dated 28-11-1991 which is reproduced as under:--
8. The appellant alongwith Mr. Muhammad Naseem Khan, Assistant Engineer challenged this order in the High Court. The High Court was pleased to decide the case through Writ Petition No. 105/91, decided on 18-4-1992. The High Court observed that the matter was pending before the departmental authority, therefore, it was not proper to decide the matter on merits and the writ petition was dismissed. There is nothing on the record to show that the appellant challenged the order-dated 28-I1-1991 in this Tribunal. It is, however, evident from the record that the case was processed at the level of Minister Incharge P.W.D. The Minister, after giving history of the case, proposed to the Prime Minister that the order-dated 28-11-1991 be cancelled. The proposal of the Minister contained in Annexure 'K/1' is as under:--
9. In para. 5 of the appeal the appellant has stated that on the basis of summary Annexure K and K/1' and in accordance with the seniority as mentioned earlier the order dated 12-12-1991 was issued directing therein that the petitioner's services are transferred to Auqaf Department. This paragraph is supported by the affidavit but at the same the the facts stated have been denied in para. 5 of written statement, which again is supported by the affidavit submitted by Mr. Niaz Ahmed Siddiqui, Assistant Engineer. In this given situation we have again to look into the papers attached on the file by the parties. It is an admitted fact that the order-dated 30-9-1989 was cancelled by the order of reversion of the appellant. It may be true that the order dated 12-12-1991 was passed by the Government on the proposal of the Minister , P.W.D. But the fact remains that the orders dated 12-12-1991 and 1-9-1992 were passed by the Department of Services and General Administration. The perusal of these orders show that the services of appellant who was Sub- Engineer in P.W.D. Were placed at the disposal or Department of Auqaf on deputation on the conditions given in the order dated 12-12-1991. The Condition No. 5 of the order was to the effect that the lien of the Officer would be kept in parent Department against the post of Sub-Engineer.
The order-dated 12-12-1991 was made, effective from 28-11-1991, through Notification dated 1-9- 1992. The order-dated 12-12-1991 in clear terms declares that appellant was not given any promotion in P.W.D. His services were lent out to Auqaf Department and he was posted as Assistant Engineer in that Department on deputation and it was clearly stated in the order that the lien of the officer would remain in the parent Department against the post of Sub-Engineer. The continuity of the services as claimed by the appellant on the basis of original order of appointment dated 30-9- 1989 as Assistant Engineer in his own pay and scale is falsified by the very order, which has been relied upon by the appellant. The order-dated 12-12-1991 was not a promotion order of the appellant. It was simply an appointment as Assistant Engineer in another Department. This appointment in Auqaf Department does not confer any service rights or promotion on the appellant in his parent Department. The case of Mubusher--ul-Haq (1991 PLC (C.S.) 426) relied by the appellant is, therefore, of no help to him because Mubusher-ul-Haq had challenged his order of I appointment in his own pay and scale whereas the appellant appears to have got satisfaction by his appointment as Assistant Engineer in the Department of Auqaf. The appellant has reconciled with the orders, which were passed from the to the. The Tribunal could only help the appellant if the appellant had challenged the order before this Tribunal. The ultimate position which comes to light from the above-stated facts is that the order dated 30-9-1989 under which appellant was appointed as Assistant Engineer in his own pay and scale was reversed and cancelled through Notification dated 28-11-1991 and Mr. Muhammad Bashir Sani, Sub-Engineer was appointed as Assistant Engineer in his own pay and scale. From the proposal dated 19-11-1991 of Minister P.W.D. It appears that the order dated 28-11-1991 was processed at the level of the Minister and the Minister submitted proposal to the Prime Minister for the cancellation of the order but it appears that no action beyond the proposal of the Minister was taken. The appellant was, however, sent on deputation and was appointed Assistant Engineer through Notification dated 12-12-1991 and was promoted as Assistant Engineer in the Auqaf Department keeping his lien in the parent Department against the post of Sub-Engineer. The submission of the counsel for respondents that the order- dated 28-11-1991 was not cancelled by the Prime Minister and the appellant remained, a Sub- Engineer in P.W.D. Appears to be correct. The order-dated 28-11-1991 was passed by the Government. The record shows that the appellant did not prefer any review petition against this order before the Government. We, therefore, declare that the order-dated 28-11-1991 is still operative and effective against the appellant who is estopped to claim any relief under this state of affairs.
10. The other submission of the counsel for the appellant is that he occupied senior positions in seniority lists circulated on 27-3-1983 and 5-8-1989. The case of the appellant is that preliminary seniority list was circulated on 27-3-1983. The appellant and respondents Nos. 3 and 4 submitted their objections and after hearing the parties final seniority list was framed and was issued on 5-8- 1989. The reply of the respondents is that the list dated 5-8-1989 was not a final list but it was also a preliminary seniority list. Annexure 'F' and ' F/1' supported the contention of the counsel for respondents. Annexure 'F' is a letter which has been sent to the concerned Sub-Engineers and their objections have been invited through this letter. In the title of the letter it is clearly stated that it is a preliminary seniority list of Sub-Engineers of P.W.D. Annexure 'F/1' is again preliminary seniority list of Sub-Engineers. The case set up by the appellant has been refuted by him through the documents, which he attached with his appeal. The seniority list which was prepared by the Chief Engineer on the direction of the Minister dated 29:1-1991 was subject of appeal before the Secretary Works. This seniority list is pending decision with the departmental authorities. The final result has not been brought before us. It is, therefore, not possible for us to declare as to whether the appellant is senior to respondents or not. The matter of seniority will be decided by the Tribunal when it comes before the Tribunal for consideration.
11. In view of the facts stated above we are of the opinion that there is no substance in this appeal and we, therefore, dismiss this appeal but leave the parties to bear their respective costs.