ROSHAN ALI MANGI (MEMBER).---Aggrieved by the Pak. P.W.D. Office Order, dated 15th November, 1993, whereby the junior Sub-Engineers, namely M/s. Abdul Wahid and Muhammad Azam, who have been made as respondents in this memo. of the appeal, were promoted to the post of Assistant Engineer (Hort.) (B-I6) (Gazetted), the appellant has filed this appeal before the Tribunal.
2. The brief facts of the case are that the appellant was appointed as a Sub-Engineer (B-11) in Horticulture Division of the Pakistan Public Works Department with effect from 24-5-1977.
3. It is submitted that the Ministry of Housing and Works vide Notification dated 25-3-1979 amended the P.W.D. Central EngineeringService Class-II Recruitment Rules to the following effect: "21(1).---25 % vacancies in the cadre of service shall be filed on the recommendation of Departmental Promotion Committee on the baiis of seniority-cum-fitness from amongst the Sub- Engineers Graduates and diploma holders having completed 10 years' service in the department subject to the passing of the prescribed departmental examination completely, within the maximum period of 3 years of joining the service and with a maximum of 3 chances."
4. The conditions prescribed vide Works Division Notification dated 29-1-1988, for promotion to the post of Assistant Engineer (Horticulture) (B-16) included 10 years' service as Sub-Engineer in B-11 and passing the prescribed departmental examination in given five chances.
5. The Department held the first departmental examination for promotion of Sub-Engineers (Horticulture) to the post of Assistant Engineer (B-16) on 21-2-1993 i,e, after more than 5 years from the date of notification.
6. However, the appellant could not take the departmental examination for the reason that he suffered from fracture of his right hand on 26-11-1992 and remained on leave up to 24-1-1993 on medical grounds. His non-participation in the departmental examination was neither deliberate nor willful.
7. Since then no other departmental examination has been held so far. In the meantime a meeting of the Departmental Promotion Committee was held on August, 1993, which recommended the promotion of Messrs Abdul Wahid and Muhammad Azam, i,e, respondents Nos. 2 and 3, who were junior to the appellant, as Assistant Engineer (Horticulture) with effect from 15-11-1993.
8. The learned counsel for the appellant pleaded that the department held departmental examination for Sub-Engineers (Civil) in May, 1993 and then in December, 1993. They have also held departmental examination for other cadres. However, for the reason best known to the Department no second examination was held for Sub-Engineer (Hort.). As a result, this has sealed the fate of the appellant for the reasons that the cadre of Assistant Engineer is very small and he will have to wait for his promotion till the occurrence of the next vacancy due to the retirement of any one of the incumbents of the post of Assistant Engineer (Horticulture).
9. The appellant filed the departmental appeal on 14-12-1993 but the same has been rejected vide letter dated 18-9-1995. Hence this appeal, with the prayer that the impugned promotions notified vide letter dated 15-11-1993, be set aside and the appellant be afforded an opportunity at the earliest to pass the departmental examination and in the event of his clearing the same he be considered for promotion as Assistant Engineer (Horticulture) and his junior respondents Nos. 2 and 3 be made junior to him.
10.Examining the case on merits, it is clear that the departmental examination was held for whatever reasons, the appellant could not appear in the said examination. However, his juniors appeared and qualified the examination, hence they were promoted.
11.The appellant's prayer to set aside the promotions notified vide letter dated 15-11-1993, is not justified and it does not fall with the jurisdiction of the Tribunal, nor the Tribunal can direct the respondent department to hold the departmental examination as it is a policy matter, yes we can direct the department to consider the case of promotion, but only when, we find some legal point which might been ignored by the D.P.C. The appellant did not qualify the required Departmental Examination, as such he lacks one of the important condition for the promotion, as such we cannot direct the department to consider his case.
12.Besides, the appeal is time-barred as well. His juniors were prombted with effect from 15-11- 1993. At that time the appellant did not agitate against this order to the department nor did he approach the Tribunal in this regard.
13.As such appeal is incompetent on both the accounts, and, therefore, is dismissed in limine.
14.After the judgment was reserved, the learned counsel Sh. Riazul Hague made an application on 12-11-1995 wherein he submitted that the instant Appeal bearing No, 409(R) of 1995, is identical to that of Appeal bearing No, 386(R) of 1995, filed by one Mr. Mansib Ali, which has already been admitted for regular hearing, on the plea that it is also similar to that already reserved.
15.However, going through the Appeal No,386(R) of. 1995, we find that the appellant appeared in the qualifying examination but failed in two subjects. Whereas, the appellant in Appeal No, 409(R) of 1995 did not appear in the examination due to, according to him, illness. This shows that Appeal No, 409(R) of 1995 is distinguishable to the one 386(R) of 1995.
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