SYED JAMSHED ALI, J.---This judgment will dispose of IntraCourt Appeal No, 183 of 1997 arising out of Writ Petition No, 9479 of 1996 and Intra-Court Appeal No, 1039 of 1997 arising out of Writ Petition No,11657 of 1994 as the questions of law and fact involved for determination in both the appeals are common.
2. In both the appeals the principal grievance of the appellants is that the posts of Special Ticket Examiner Grade-II are not being filled in accordance with the rules and a direction is sought to enforce the quota rule. In Writ Petition No, 11657 of 1994 order dated 7-9-1994 while in Writ Petition No, 9479 of 1996 order dated 30-5-1996 promoting the private respondents had also been challenged. In Writ Petition No, 9479 of 1996 the following prayers were made:-- "In the light of the abovementioned circumstances, it is therefore, most respectfully prayed that the petitioners may be considered for promotion to the post of S.T.Es. against the 20% quota reserved for them against the "anctioned strength.
It is further prayed that a direction may kindly be issued to the respondents to fill up 20% posts of S.T.Es., by way of considering for promotion from the Senior-Most Senior Commercial Assistants who opted for promotion as S.T.Es., after the reverting the Special Ticket Examiners, working as Special Ticket Examiners in excess of their reserved quota.
It is further prayed that the impugned letter of promotion dated 30-5-1996, which is in violation and in excess of the reserved quota, may kindly be set aside.
As an alternative relief it is further prayed that in future, all the vacancies be filled in by way of promotion of the Senior Commercial Assistants, till their requisite quota of 20% reserved for them is completed and a direction may be issued to them observe the same once it is properly maintained."
3. Writ Petition No, 9479 of 1996 was dismissed vide judgment of the learned Single Judge dated 5- 3-1997. Thereafter, Writ Petition No, 11657 of 1994 came up for hearing before another learned Single Judge of this Court. It was brought to his notice by the learned counsel that identical Writ Petition No,9479 of 1996 stands already dismissed vide judgment dated 5-3-1997 and that the said Writ Petition 11657 of 1994 may be disposed of in the terms of the said order as the petitioner, therein, would like to file Intra-Court Appeal against the said judgment. Accordingly, the said writ petition was disposed of vide order dated 17-11-1997. I.C.A. No,1039 of 1997 has been directed against the order dated 17-11-1997 passed in Writ Petition No,11657 of 1994 and the order dated 5-3-1997 passed in the connected Writ Petition No, 9479 of 1996.
4. The relevant facts may be noted. The appellants, initially, were Booking Clerks (redesignated as Senior Commercial Assistants). As Booking Clerks, the only channel of promotion available to them was the post of Commercial Supervisor and in view of small number of posts of Commercial Supervisors, they had a little chance of promotion. To improve their lot, vide Notification dated 15- 9-1962 10% posts of Special Ticket Examiners Grade-II were reserved for the Booking Clerks Grade-II while vide Notification dated 4-8-1965 another 10% vacancies of S.T.Es. Grade-II were reserved for the Goods and Parcel Clerks. Thus, between the Booking, Goods and Parcel Clerks, they shared 20% vacancies of Special Ticket Examiners Grade-II. The remaining 80% vacancies of S.T.Es. continued to be reserved for the Ticket Examiners. This 20% reservation in favour of Booking Clerks was in lieu of the direct recruitment quota.
5. Since the fate of this appeal hinges on the interpretation of the said notifications the same are reproduced hereunder:-- (Notification dated 15-9-1962)
Sub:--Channel of promotion of Booking Clerks, Grades I and II "Consequent upon the award given by the Industrial Court to create more channel of promotion for Booking Clerks and its acceptance by the Railway Administration, it has been decided that (i)
Booking Clerks, Grade-I, Rs,60--120, may be allowed to complete (sic) with Trains Clerks. Ticket Controller, and Yard Foremen for promotion as Guards. Grade-II within the quota allowed for departmental candidates, and (ii) Booking Clerks, Grade-II Rs,75--150 may be allowed promotion as S.T.E. Grade-II (Rs, 75--225) upto the extent of 10% of the sanctioned strength of S.T.Es, Grade-II against future vacancies.
This has the approval of the C.O.P.S/C.C.M/D.G.M". NOTIFICATION dated 4-8-1965.
Sub:--Channel of promotion of Goods Clerks and Parcel Clerks: "The question of improving the prospects of promotion of Goods and Parcel Clerks has been engaging the attention of the administration and it has now been decided that (a) to reserve 10 vacancies of S.T.Es. Grade-II for Goods Clerks Grade-II qualified in coaching and (b) to make Goods Clerks and Parcel Clerks eligible to compete (sic) vacancies of Guards, Grade-I along with other categories of staff."
6. The grievance of the appellants was that the quota rule was not being followed and orders promoting the private respondents in the two writ petitions were in violation of the quota rule. Their case was that unless their 20% quota was exhausted. The T.Es. were not entitled to be promoted as S.T.Es. Grade-II, On the other hand, the case of Pakistan Railways was that the appellants were entitled to 20% vacancies of S.T.Es. occurring in future, and not 20% of the vacancies of the sanctioned strength. The learned Single Judge relying on the expression" against future vacancies" occurring in the Notification dated 15-9-1962, held that the class of the appellants were entitled to 20% vacancies occurring in future which were being filled in accordingly. With this conclusion Writ Petition No,9479 of 1996 was dismissed.
7. Learned counsel appearing for the appellants has vehemently contended that the Notification dated 15-9-1962 has been misconstrued by the learned Single Judge while there was no such expression "against future vacancies", in the Notification dated 4-8-1965. He further contended that in Rawalpindi Division the quota rule was being followed and 20% posts of the sanctioned strength of the S.T.Es-II was being given to the Booking, Parcel and Goods Clerks. On the other hand, learned counsel for Pakistan Railways has contended that the post of S.T.Es. were being filled strictly in accordance with the Notifications dated 15-9-1962 and 4-8-1965 and that giving 20% quota of the sanctioned strength to the class of the appellants will amount of giving these notification retrospective effect. He also pleaded bar of jurisdiction under Article 212 of the Constitution.
8. We have considered the submissions made at the Bar by the learned counsel. The fate of the appeals hinges on the interpretation of the Notification dated 15-9-1962. According to this notification Booking Clerks Grade-II Rs,75--150 may be allowed promotion as S.T.Es. Grade-II (Rs,75--225) up to the extent of 10% of the sanctioned strength of S.T.Es. Grade-II (emphasis supplied) against future vacancies. A careful reading of this Notification shows that 10% posts of the sanctioned strength of S.T.Es. Grade-II were reserved for the Booking Clerks. The expression "against future vacancies" in this notification cannot be stretched to nullify, reservation of 10% vacancies of the S.T.Es. of the sanctioned strength. As far as Notification dated 4-8-1965 is concerned, the expressions "sanctioned strength" or "future vacancies" are not there. This notification simply refers to reservation of 10% vacancies for the Goods and I A Percel Clerks. In our view, the expression "future vacancies" only indicated the method of filling in the vacancies in future.
9.The expression "sanctioned strength" has a definite connotation and we say with great respect that it has escaped attention of the learned Single Judge. The rule is beneficial and has to be interpreted in a beneficial manner. The clear import of the two aforesaid Notifications is that 20% vacancies of S.T.Es.-II of the sanctioned strength have been reserved for the class of the appellants to which they belong. If the rule is interpreted in the manner in which it has been done by the learned Single Judge, it may result in holding of more than 80% posts by the Ticket Examiners, which will be against the letter and clear intent of the rule.
10.We may refer to the instructions of the Federal Government at Serial No,199 page 184 of the ESTACODE 1983 Edition which are reproduced hereunder:-- "A question has arisen as to how the vacancies caused by resignation, transfer, etc. of the persons appointed against the quota of departmental candidates or direct recruits, before confirmation of such person should be filled. The matter has been considered in consultation with the Federal Public Service Commission and it has been decided that the vacancies in various services/posts caused by any reason, should be filled on the basis of the quotas fixed for promotion, transfer and direct recruitment. For this purpose the total number of posts in a cadre should be distributed in accordance with the fixed quotas and the vacancies in such posts should be filled so as to achieve the overall quotas fixed for departmental candidates and direct recruits etc.
2. Suitable amendments should be made in the recruitment rules where necessary, in consultation with the Establishment Division and the Federal Public Service Commission."
(Authority- O.M. No,5(1)/11/67-D.V., dated the 21st March, 1968).
Although these instructions relate to the reservation between departmental candidates and direct recruits, yet these are clearly applicable to the situation in hand where two different classes of employees are allowed promotion quota. The contention, therefore, of the learned counsel of the Pakistan Railways that the quota rule will apply only to the vacancies occurring after 1962 and 1995 and that allocation of vacancies of the S.T.Es. of the total sanctioned strength to the class of the appellants will amount to giving retrospective effect to these notifications, has no merit.
12.The learned Single Judge while arriving at conclusion relied on Government of Balochistan v.
Marjan Khan etc. (PLD 1990 SC 477). In the said precedent case there was a seniority dispute between the officials promoted to the P.C.S. (EB) cadre with the direct appointees. There were 44 posts before pre-integration in 1955 without any prescribed method of appointment. 15 posts were created after integration making the total to 59. The integration circular clearly provided that the posts created thereunder will be divided between the promotees and direct recruit to the extent of 50% each. In these circumstances the quota rule was held to have been applicable only to 15 additional posts and not to the total. The facts of the said precedent case are distinguishable because in the case in hand, no new post of S.T.Es. was created, therefore, no question of the rider that only newly created posts shall be shared by the two classes of the employees arose.
13.As far as the bar of jurisdiction under Article 212 is concerned, we are of the view that the alternative relief claimed by the appellants seeking a direction to the respondents that in future all the vacancies be filled in by way of promotion of Senior Commercial Assistants till their requisite quota of 20% reserved for them is completed, will not be hit by the bar of jurisdiction contemplated by Article 212 of the Constitution. According to section 5 of the Service Tribunal. Act, 1973 a Tribunal has the jurisdiction to confirm, set aside, vary or modify an order appealed against but the Service Tribunal is not possessed of jurisdiction to issue prerogative writs. We are fortified by judgment of the learned Sindh High Court in Mateen-ul-Hassan Khan, etc. v. The Secretary, Finance Department, Government of Sindh, Karachi, etc. 1995 PLC (C.S.) 681).
14.We may also refer to Khaliq-uz-Zaman Chaudhry, Civil Judge, 1st Class, Lahore and 72 others v.
Government of Punjab (1993 PLC (C.S.) 1322), a judgment rendered by this Court wherein the grievance was that in the matter of appointment to the post of Additional Sessions Judges the quota rule was not being followed by the Government of the Punjab. Objection to jurisdiction of this Court was also raised in this case and was repelled and the direction prayed for by the petitioners in the said case was issued.
15.As far as the challenge to the orders dated 7-9-1994 and 30-5-1995, directing promotion of the private respondents is concerned, these were made in accordance with the previous practice and we are not inclined to upset these promotions in our discretionary jurisdiction. Therefore, to the extent, the writ petitions call in question, the aforesaid orders of promotion, these are dismissed and for this reason we are not inclined to examine in detail whether bar of jurisdiction will be attracted to question the said orders of promotion.
16. In view of the above, both the appeals are partly allowed and it is hereby directed that 20% vacancies of the sanctioned strength of the S.T.Es. shall be filled in so as to exhaust 20% quota reserved for the Commercial Staff under Notification dated 15-9-1962 and 4-8-1965. The parties are left to bear their own costs.