SH. RIAZ AHMED, J. - This order shall dispose of the above to petitions, Which involve identical questions of fact and law.
2. Leave to appeal is sought against the judgment and order dated 18.9.1997 whereby appeals filed by the petitioners calling in question the assignment Of seniority by the Railways Department were dismissed.
3. The facts in brief are that on 6.12.1960 petitioner Muhammad Fazil Malik was appointed as Apprentice Inspector of Works in Pakistan Railway. On 13.7.1977 with the concurrence of the Establishment Division, rule 130 of the Pakistan Railways Establishment Code Volume-I was amended by the Ministry of Railways/Railways Board and promotion quota to the post of Assistant Engineer was enhanced from 20% to 40% in the case of Engineering Department, Pakistan Railways subject to the condition that at least 20% posts will be filled by promotion by those holding diploma in engineering and 5% will be filled by promotion of those possessing degree in engineering. The petitioner was promoted as Assistant Engineer B-16 and was regularized as Assistant Engineer B-17 w.e.f. 1.5.1999 vide Railways Board notification dated 8.4.1982. The date of regular appointment of the petitioner as Assistant Engineer B-17 was modified from 1.5.1979 to 8.4.1982 in the seniority list of 1985 and 14.2.1982 in the seniority list of 1987. Aggrieved by the assignment of seniority, the petitioner and others filed an appeal before the Service Tribunal, but the same was rendered infructuous because the impugned notification was withdrawn. The date of regular promotion of the petitioner as Assistant Engineer in B-17 w.e.f. 1.5.1979 was thus kept intact and the same was reflected in the provisional seniority list issued on 20.10.1992. The petitioner was then approved by the competent authority for promotion to the post of Executive Engineer/Divisional Engineer B-18 w.e.f. 26.7.1995 keeping in view his seniority position as assigned in the seniority list issued on 20.10.1992. In 1993 the date of regular promotion of the petitioner was again changed from 1.5.1979 to 8.4.1982 in the seniority list dated 24.2.1993. This seniority list was then withdrawn per direction of the Tribunal and in 1994 and 1995, fresh seniority lists were prepared wherein the late of regular promotion of the petitioner as Assistant Engineer in B- 17 w.e.f. 1.5.1979 was kept intact.
4. Contrary to the seniority list issued in 1995, on 26.10.1995, Mr. Anjum Pervaiz was posted against a grade-19 post and M/s. Ghulam Muhammad Qureshi and Muhammad Khalid junior to the petitioner were also promoted to hold B-19 posts in the Civil Engineering Department w.e.f. 10.11.1996.
On the said date, once again, the date of promotion of the petitioner as Assistant Engineer was modified from 1.5.1979 to 8.4.1982. Feeling aggrieved thereby, an appeal was filed before the Federal Service Tribunal wherein it was urged that the impugned action, i.e. Promoting officers junior to the petitioner to hold post in B-19 and altering the date of promotion of the petitioner as Assistant Engineer was violative of the principles of natural justice, inasmuch as before doing so, no notice was given to the petitioner and it was thus contended that the order was harsh, mala fide and illegal. According to the petitioner, the notification issued on 8.4.1982 had conferred a valuable right on behalf of the petitioner and the said notification had been acted in letter and spirit and the impugned order had modified the said notification contrary to law. It was thus prayed before the Tribunal that the orders dated 26.10.1995, 10.11.1996 and 20.11.1996 be declared illegal and be set aside and the seniority lists issued in 1994 and 1995 be ordered to hold the field and the respondents be directed to consider the petitioner's promotion to B-19 against the existing vacancies against which officers junior to the petitioner, namely, Mr. Anjum Pervaiz, Ghulam Muhammad Qureshi and Muhammad Khalid have been appointed.
5. On behalf of the Department, it has been urged that the appeal filed by the petitions r was barred by time because respondents Nos. 5 to 8 had been promoted on officiating basis in B-18 on 21.1.1985 and the other respondents were also promoted in the same year and were also subsequently promoted on regular basis through notification dated 16.3.1993, which had not been challenged by the petitioner. Similarly, the promotion order dated 26.10.1995 of respondent No. 6 in B-19 was also not challenged by the petitioner within limitation either before the departmental authority or before the Tribunal and therefore the appeal filed by the petitioner was barred by time.
It is also noteworthy to mention that the petitioner had misjoined the causes of action by challenging the order dated 26.10.1995 promoting respondent No. 6 and the order dated 10.4.1997 promoting respondents Nos. 5 to 7 in B-19. The crucial question arising for determination is the nature of the promotion of the petitioner in B-17. It was urged that the petitioner could have only been granted seniority in B-17 from the date when the post of promotion quota fell vacant. In fact the petitioner had been promoted in B-17 on ad-hoc basis w.e.f. 1.5.1979 with the condition that the promotees like the petitioners were liable to be replaced by the nominees of the Federal Public Service Commission. Similarly, notification dated 8.4.1982 was further modified through notification dated 15.1.1985 laying down a condition that the same was provisional and was without prejudice to any dispute about the seniority of these officers vis-a-vis other officers of the Department. It is thus obvious that the said notification did not clothe the petitioner with any legal right for claiming seniority in excess of promotion quota over and above the direct appointees including the respondent from their respective quota. It is further pertinent to mention that the petitioner and other promotees in fact were given ad-hoc promotion in respect of their promotion quota, which at the relevant time consisted of 25 posts out of the total cadre strength of 77 posts in B-17. It is important to note that vide notification dated 3.7.1980, 18 posts in the promotion quota were already given to the promotees and only 7 posts were available to be filled. Through notification dated 8.4.1982, 25 officers were promoted against the balance quota of 7 posts reserved for the direct recruits. Notification dated 8.4.1982 was provisional and was issued without prejudice to any dispute about the seniority of officers in the Department. In our view, the Tribunal rightly came to the conclusion that the break-up of B-17 posts in the Civil Engineering Department against direct recruitments and promotion quota at different stages in B-17 was correctly worked out by the respondent Railways Department and in this behalf the notification dated 20.12.1996 reflected the correct position. This break-up was approved by the Railways Board and thus the final seniority list was circulated vide notification dated 25.2.1997, which was not challenged by the petitioner before the Tribunal. The legal position emerging is that if the promotees are promoted in excess of their quota, it does not clothe them with the right to claim seniority and their adjustment will automatically take place when the direct nominees also join the Department, in this view of the matter, we are of the view that the conclusions arrived at by the Tribunal are not open to exception.
Therefore, we do not find any merit in this petition. The same is dismissed and leave to appeal is refused.
6. For the foregoing reasons, the petition CPLA No. 1358-L/1997 filed by Muhammad Aslam Shah petitioner is also dismissed.