MUHAMMAD RAZA KHAN (MEMBER).---This judgment will also dispose of similar Appeals No, 28(R) of 1996, No,110(R) of 1996 and , No,115(R) of 1996 as identical question of law and fact are involved in all these appeals.
2. The brief relevant facts are that the appellant joined Pakistan P.W.D. as Assistant Executive Engineer (B-17). At that time the Recruitment Rules of 1984 (hereinafter called the said Rules) were applicable to his cadre. Rule 7 (officially called para. 7) of the said Rules is relevant for the present discussion which reads: "7. Persons recruited direct, shall be required to pass the prescribed departmental examination within the maximum period of 4 years of their joining the service with a maximum of 5 chances.
Failure to do so shall render the person concerned ineligible for holding the post in the service."
The said rule was partly reproduced as condition No,7 of his appointment order dated 4-9-1988 in these words:- "(vii) He will be required to pass the prescribed Departmental Examination within a period of 4 years and with maximum five chances."
3. The said (para. 7 of the said Rules) was deleted by Notification dated 22-7-1989 as follows:- "Para. 7 of the Recruitment Rules is deleted and the subsequent paras. are renumbered accordingly."
4. There was another entry at serial No, 6 of the Table appearing in para. 3 of the said Rules of 1984 whereby the condition of eligibility for promotion to the post of Executive Engineer was prescribed as under:-- "Five years' service in B-17 and persons initially appointed to B-17 must have passed the Departmental Examination."
5. The position that was to emerge after the issue of notification for deletion of para. 7 was considered one month in advance and vide Memorandum dated 10-6-1989 the Establishment Division recorded their opinion with regard to the effect of the proposed amendment and qualifications for promotion. The Office Memorandum is reproduced in extensor:-- No, F.44/1/83-R.5, Rawalpindi, the 10th June, 1989. OFFICE MEMORANDUM Subject: Amendment in the Recruitment Rules for engineering posts in the Pak. P.W.D. under the Works Division. The undersigned is directed to refer to the Works Division's O.M. No,F.1(5)/79-Admn.III, dated 31-5- 1989 on the above subject and to clarify the points raised therein as under:--
(i) After the deletion of para. 7 of the relevant Recruitment Rules, the condition of qualifying departmental examination will remain operative as the same is one of the condition for promotion to the post of Executive Engineer in the table below para. 3 of the said Recruitment Rules. The purpose of the draft Notification cleared vide O.M. of even number dated 4-5-1989 is to delete from the Recruitment Rules, the provisions restricting the departmental candidates to pass the prescribed examination in a limited number of chances and within a specified period.
(ii) The D.P.C. will consider the candidates on the basis of their seniority list and service record. In case senior candidates have not passed the prescribed departmental examination, they will be superseded for promotion." The appellant, as stated hereinabove had joined in 1988 and before the expiry of the prescribed period of four years to qualify the departmental examination, the said para. was deleted and, therefore, the condition No,7 of his appointment order also stood deleted. The effect of failure to pass the departmental examination in the prescribed period and prescribed number of chances was that the person could not hold the post after the expiry of four years but since the said amendment had come into force just one year after the appointment of the appellant, therefore, there was no compulsion to pass the departmental examination within the prescribed period to justify his retention in service. However, since the passing of the departmental examination was a condition precedent for promotion to the post of Executive Engineer, therefore, the appellant and others had been trying to appear in the examination and the department had been providing facilities for holding such examination without any restriction on the number of chances or period in which such examination is finally qualified. The appellant passed the said examination in May, 1994 (Mr. Muhammad Maqsood Elahi, the appellant in Appeal No, 28(R) of 1996 qualified the examination in April, 1993, while the appellants in Appeals Nos. 110(R) of 1996 and 115(R) of 1996 qualified the examination in March, 1995) and, therefore, subject to other conditions to be considered by the D.P.C., he had attained the pre-condition of qualifying the departmental examination for promotion to the post of XEN. It appears that vide impugned order dated 25-6- 1995 the respondent No,3 was promoted who stood at Serial No,80 of the seniority list as on 30-6- 1991 whereas the appellant was at serial No,69 of the said. list (The other appellants were at Serial Nos. 72, 59 and 63 respectively). Thus, the cause of action accrued to the appellant. However, no action was initiated on his behalf until Mr. Khalid Qureshi and Mr. Hadayatullah were promoted on 21-9-1995 on the basis of a consolidated judgment of this Tribunal in their Appeals No,3(P) of 1995 etc. The appellant filed departmental appeal on 10-10-1995 (which may be read as 10-10-1995, 15- 10-1995 and 16-10-1995 respectively for the other three appeals) and the present service appeal has been filed with the prayer that respondents Nos.1 and 2 be directed to convert the supersession of the appellant into deferment for the purpose of promotion as Executive Engineer and to consider him for promotion as Executive Engineer. In case he is approved for such promotion he may be deemed to have been promoted alongwith respondent No,3 and treated senior to him as Executive Engineer.
7. Before commencing discussion the merits of the case it will be appropriate to handle preliminary objection of limitation raised on behalf of the respondents. The appellant is certainly aggrieved by the order dated 26-6-1995 whereby the respondent No,3 being junior to him has been promoted and, therefore, the appellant stood superseded. The version of the respondents is that the appellant should have filed departmental appeal under section 22 of the Civil Servants Act, 1973 within thirty days of the said impugned order. The departmental appeal was filed on 10-10-1995 (or later on) hence, as per respondents, the departmental appeal was barred by time and consequently the present appeal was hit by limitation. It is a fact that cause of action accrued to the appellants of their alleged supersession and promotion of their junior vide order dated 26-6- 1995. However, by then the dispute about the chances under which the departmental examination could be cleared and the number of years taken to finally so qualify the examination was sub judice before this Tribunal in five different appeals. The said appeals were decided in September, 1995, where after the respondents promoted two of the said appellants by order dated 21-9-1995.
Thus, the rules were interpreted by adjudication of the said appeals and the decision was acted upon by the said notification of promotion. Therefore, the cause of action practically accrued to the appellant with effect from 21-9-1995 based on the notification read with Notification dated 26-6- 1995. Keeping in view the date of promotion of Mr. Hidayatullah on 21-9-1995 the departmental appeal was filed within the prescribed period and the present appeal is, therefore, within time.
8. Although para. 7 of the rules of 1984 had been removed in 1989 but still there was an ongoing controversy even in 1995 with regard to the service prospects of those employees who failed to qualify the examination in four years and five chances prior to 1989. Several of them were still in service and some of them had already been promoted as Executive Engineers despite the fact that they were lacking the basic condition for promotion. The case of the present appellants and the respondent No,3 is on different footings than the case of the appellants of the earlier five appeals.
After 1989 the question of number of years and number of chances had become immaterial for new appointees but due to controversy on the issue of old appointees, the entire administrative machinery was confused and every promotion was viewed with the coloured glasses of four years and five chances and that is why it will be unjust to hold the case of the appellant barred by time keeping in view the Notification dated 26-6-1995.
9. Although the main issue of the earlier Appeal No,3(P) of 1995 etc. is not attracted to this case but the pleadings on behalf of the parties and the impugned order has attracted the effect of earlier appeals on the present one, therefore, it will be necessary that the gist thereof is reproduced for convenient reference. Under the Rules of 1984 it was necessary that the Assistant Executive Engineer must qualify the departmental examination within four years and five chances and failure to do so could render such person ineligible for holding the post in service. However, since holding of examination was the duty of the Department, therefore, in certain cases the Department failed to provide opportunities of five chances in four years to the Officers concerned. If they were to loose their jobs, it was not just and fair because they were thus penalized for the fault of others. In some cases the department allowed certain officers to appear in more than five chances and since there was no provision to cover this fact, those who qualified in chances beyond five could not be refused promotion to the next grade. Moreover, there was also a dispute as to whether the number of chances in qualifying the departmental examination will have any effect on seniority as Executive Engineer particularly keeping in view the deletion of para. 7 from the Rules of 1989. These and so many other similar questions were disturbing the service career of so many officers, therefore, a High Powered Committee was constituted and the Committee finally made certain recommendations. In the meanwhile Mr. Hidayatullah and others filed the said service appeals on the ground that they qualified the departmental examination in more than five chances and they are being discriminated and not considered for promotion despite the fact that they are otherwise eligible and qualified to be promoted. The matter was finally resolved by the judgment of this Tribunal dated 5-9-1995 and it was held that those appellants who had passed the departmental examination, though in more than five chances, may be considered for promotion from the date of passing their examination without prejudice to those who have passed the departmental examination within the requisite number of five chances and those who have already been promoted.
10.It may also be mentioned that in the said appeals the appellants were appointed much earlier than 1985 and by the time paragraph 7 of the Recruitment Rules was repealed, they had already completed the four years of service and were, therefore, affected by the penalty clause of the said paragraph. However, the department has not provided reasonable opportunity to clear the examination within four years, therefore, the penalty clause was waived as discussed in the minutes of the High Power Committee. So far as this case is concerned the facts of the earlier case. have no direct connection with it. The appellant was appointed in 1988 and the respondent No,3 was also appointed in 1988. The restriction of four years and five chances was applicable to them but within one year of their joining the department, the said paragraph was deleted and, therefore, the restriction of years and chances was done away. The passing of the departmental examination for retention the job was not necessary for them. However, it was necessary for further promotion as Executive Engineer. Thus, after 1989 the appellant and the respondents were at liberty to avail any number of chances to qualify the examination and any person qualifying earlier would be entitled to be considered for promotion earlier. The seniority in the cadre of Assistant Executive Engineer, thus, becomes immaterial after promotion to the post of Executive Engineer on qualifying the examination. Similarly the number of chances of passing the departmental examination after 1989 did not give any preferential right to those who passed the examination in less chances over those who qualified in more chances except the benefit of earlier consideration for promotion of those who qualified the examination earlier. The pre-requisite for promotion to the post of Executive Engineer was the qualifying of examination without any restriction of number of chances.
Thus, if a person who is junior but qualified the examination earlier was entitled to be considered for promotion earlier than those of his seniors who had not qualified the examination by then.
11.The appellant cleared the departmental examination May, 1994 (April, 1993 to March, 1995 respectively) and, therefore, he was entitled to be considered for promotion to the post of XEN with effect from the said date subject to clearance from the D.P.C. on scrutiny of rest of the service record.
12.In the light of the above discussions we accept this appeal and direct that the appellant be considered for promotion to the post of Executive Engineer as he has become entitled to such consideration after qualifying the departmental examination irrespective of the number of chances availed.
13. No order as to cost. Parties be informed.