MUHAMMAD RAZA KHAN (MEMBER).---The appellant was working as Stenotypist in the Federal Service Tribunal since 1984 and was promoted as Stenographer (BPS-15) on 28-6-1986. He is aggrieved by an order dated 21-5-1996 whereby the respondent No,3, Mr. Noor Muhammad, has been promoted aS Reader (BPS-16). This order was challenged by a departmental appeal filed on 18-6-1996 which was not responded and consequently after waiting for the statutory period of 90 days, the present appeal has been filed on 10-10-1996 primarily on the ground that the appellant was eligible to be considered for the post of Reader (BPS-16) and being senior in the grant of (BPS- 15) as compared to respondent No,3, he had a preferential right to be promoted as Reader (BPS- 16).
2. The appeal was contested by the private-respondent and the official-respondents. We have listened to the arguments and perused the record.
3. The appellant bases his entire claim on an Office Memorandum dated 24-11-1985 whereby the post of Reader was upgraded from (BPS-11) to (BPS-16). It was argued on behalf of the appellant that this office Memorandum amounts to the statutory rules prescribing the qualification, experience and length of service required for the filling up of the post of Reader. The said office Memorandum is reproduced hereinbelow in extenso for ready reference:-- "The undersigned is directed to refer to the Federal Service Tribunal U.O. No,1(1)/84-FST, dated 17-5- 1984 on the above subject and to say that the competent Authority has approved upgradation of all the three posts of readers in the Federal Service Tribunal subject to prescribing minimum qualifications/experience for the said post as under:-- Qualifications Experience B.A. 5 years' service in pay scale of Rs. 700--35-- 1,400 and above (B-11)
Non-Graduate 8 years' service in pay scale of Rs. 700--35-- 1,400 and above (B-11)
2. Up gradation of the post may please be made in the light of this Division 0.M.No,8/10/83-R.I, dated 6-3-1983...."
4. The said Office Memorandum provides that the minimum qualification and experience for the post of Reader should be five years' service in BPS-11 for Graduates and eight years' service in BPS-11 for Non-Graduates. The appellant considers himself qualified for the said post as he was Non- Graduate and fulfills the required experience of more than eight years' service in BPS-11 and above whereas the respondents argued that respondent No,3 was a Graduate and was working as Assistant In charge having more than the required length of service and as a matter of practice the post of Reader is normally filled from amongst the Assistants and, therefore, he was the appropriate choice. The appellant was not eligible for appointment against the said post but, on his own request, his name was also considered by the Departmental Promotion Committee for the said post but he was not found to be the appropriate choice.
5. The issue can be analyzed from various aspects. The O.M. dated 24-11-1985 is simply a communication of the approval by the competent Authority regarding the up gradation of the posts of Readers. Thus it does not amount to the rules for initial appointment or for promotion of the employees under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Since the posts of Readers were already available in the Tribunal and were occupied by the incumbents, therefore, the up gradation from BPS-11 to BPS-16 was allowed by the said O.M., 'therefore, any addition of qualification and experience was merely a surplus age by the Establishment Division as it was not required to have been mentioned in such a communication., The up gradation of a post is entirely different than the framing of rules for direct recruitment or for promotion. We term the prescription of qualification and experience as a condition precedent as superfluous because had an incumbent already occupying the post of Reader on 24-11-1985 being deficient in qualification or experience, he could not have been removed from the said position or placed in a downgraded scale merely on the basis of insufficient qualification or experience. Secondly, the 0.M., does not prescribe whether the qualification and experience was required for initial appointment or for promotion because the qualification can be prescribed for initial recruitment but for promotion purposes it has to be mentioned as to what was the percentage of promotion and who were the persons eligible for promotion. Thirdly, the term "Non-Graduate" has not been defined thereby causing an ambiguity as to whether the one who fails to qualify the Graduation Examination will be deemed to be a non-Graduate or the one who was a matriculate only (or a lesser educational qualification) could also be considered to be a Non-Graduate. Statutory provisions have to be specific and unambiguous. Fourthly, if the said O.M. is considered to be amounting to rules for direct recruitment, there was further ambiguity whether any person serving in BPS-11 and above anywhere against any ministerial, technical or field post would be competent to participate and compete for the post. If it was presumed to be the requirement for promotion, there is an ambiguity about the officials in BPS-11 and above who would be eligible to be appointed against the said post.
Thus, the phrase beginning with "subject to prescribing " and the columns laying down the qualifications and experience were redundant and superfluous creating an ambiguity, confusion and cause for litigation.
6. The posts of Readers were already in existence in the Tribunal prior to 24-11-1985 and they were simply upgraded by the said O.M. to BPS-16. The posts have been filled previously and were to be filled in future by the B same practice. The posts of Readers exist in other judicial institutions as well.
These posts are also filled by certain established practices or by proper rules framed and approved in this behalf. The post of Reader is a technical one and requires certain qualifications and experience of legal nature. So, a technical person working as Electrical Supervisor, Mechanical Supervisor, Sub-Engineer etc. etc. having experience of more than eight years in BPS-11 and above cannot at all be considered to be eligible for appointment against the said post of Reader. In certain Courts the degree in law is prescribed as the minimum qualification and in certain other judicial institutions the experience in legal matters is considered obligatory. However, non- Graduates in a particular scale with a particular length of service cannot be held eligible as a rule to qualify for the post of Reader.
7. In addition to the above observations, the post of a Reader is undoubtedly a distinct class. It.is not a post in the regular hierarchy of a particular cadre. It has no connected posts junior or senior in rank in the line of promotion. The ministerial staff of the clerical cadre commencing with a L.D.C. moves up to the post of Superintendent. The other ministerial staff commencing with the post of Steno-typist is promoted to the post of Private Secretary up to the BPS-18/19. In Civil and Criminal Courts the posts of Readers fall within the cadre of Muharrirs and the Clerk of Courts but no such posts exist in the Tribunal and thus the post of the Reader is an isolated one with no right of promotion to or from this post. In such a situation it will be advisable to have proper rules framed for the filling up of such posts and till the framing of the rules, the prevailing practice has to be followed.
8. In the past the post of Reader has been filled up by promotion from amongst the Assistants on Seniority-cum-Fitness basis and the same practice is followed while promoting the respondent No,3 vide the impugned order.
9. The appellant feels himself eligible for consideration to be promoted as Reader on the ground that although he was not a non-Graduate yet he was having more than eight years' service in BPS- 12 and above. He places preference to his right on the ground that he was placed in BPS-15 on 28- 6-1986 whereas respondent No,3 was allowed BPS-15 on 26-12-1989 and, therefore, he claims to be senior to respondent No,3 and demands preferential consideration. Seniority is never considered on the basis of scales of pay. It is considered on the basis of posts and cadres. The appellant and respondent No,3 belong to two distinct cadres and, therefore, there was no concept of seniority inter se in two different cadres. Hence the claim on the basis of grant of BPS-15 earlier fails.
Moreover, there is neither any rule nor any practice to calculate inter se seniority of two different cadres on the basis of grant of BPS-15 for promotion to BPS-16. The appellant himself relies on the O.M. dated 24-11-1985 whereby the length of service and educational qualification is mentioned without any reference to the inter se seniority on the basis of joining the service earlier or promotion to a particular scale earlier. If the said O.M. is deemed to have attained the value of the rules then all Graduates with more than five years of service and all the Non-Graduates with more than eight years of service will be eligible for promotion to the post of Readers and consequently no preference could be given to the one over the other except the past practice and determination of suitability by the Departmental Promotion Committee. Thus, the preferential claim based on the length of service, the date of joining or the date of promotion cannot succeed. In such a situation, without prejudice to our observations on other grounds, both the appellant and the respondent No,3 and several others can be said to be equally eligible for consideration and the Departmental Promotion Committee was competent to determine the suitability of anyone amongst them on the basis of past practice. Hence we do not find any defect in the impugned order on this ground.
10.The appellant was admittedly a Matriculate. The O.M., referred to above, requires the qualifications as Graduate or Non-Graduate. It cannot be interpreted that any person who has not qualified Graduation will be considered to be non-Graduate. If this interpretation is given to the term "non-Graduate" then even the High School students will qualify to be called "non-Graduates" and even the illiterates will have a right to be called as "non-Graduates". The term "non- Graduation" is an ambiguous one but it can be interpreted in view of local terminology. A student who qualifies middle standard examination but fails to qualify matriculation examination is called "non-Matriculate" or "under-Matriculate." The one who qualifies the examination of 10th Class is considered to be a Matriculate but he cannot be termed as a non-Graduate. Even the one who has qualified his Intermediate Examination is not considered to be under-Graduate or non-Graduate.
The one who studies for Graduation is called an under-Graduate student and those who qualify their examination are called Graduates but those who fail to qualify their examination are called non-Graduates. Thus, the person who has studied up to Graduation but has failed to finally qualify the examination will be termed as non-Graduate and not the one who has not attempted to acquire the education for Graduation in a College. Hence we hold that a Matriculate will not be considered to be a non-Graduate and in view of this interpretation we further hold that the appellant did not possess the required minimum qualification as per the O.M. dated 24-11-1985.
11.The learned counsel for the appellant stressed the confusion created by the written objections and he pointed out that there was a conflict in the statement. It was argued that, in one sentence, the respondents have stated that the appellant was not eligible to be considered for promotion while in another sentence a conflicting statement was given that the appellant was considered for promotion but was not found fit. The learned counsel argued that in these two contradictory stands the earlier one falls within the jurisdiction of this Tribunal whereas the latter one does not fall within its jurisdiction as the determination of fitness was the discretion of the Authority and not a vested right of a civil servant concerned.
12.We have examined the record and there appears no conflict in the statements and no contradiction in the decision. As stated hereinbefore, the appellant was not eligible for consideration to be promoted as Reader for the reasons that, firstly he was not a non-Graduate; secondly he was a Stenographer falling within the line of promotion as Private Secretary and not in the cadre of ministerial staff of the clerical cadre and thirdly, the appellant was not eligible on the ground that in the past no such practice had been established. Thus, the respondent-Department is justified to say that the appellant was not eligible to be considered for promotion. Since the eligibility was a question which falls within the jurisdiction of this Tribunal, therefore, this appeal was admitted for regular hearing and it is being adjudicated upon by exercising the said jurisdiction.
However, the respondent-Department is not incorrect to say that the appellant was considered and not found fit. This happened because the appellant, though not eligible, had filed an application to the competent Authority for his consideration and the application was forwarded to the Departmental Promotion Committee for consideration, and thus, to honour the directive of the competent Authority, the appellant was considered but was not found fit. Although the Tribunal cannot go into the question of suitability yet we may comment that even if, for the sake of arguments, the appellant was considered to be eligible for consideration for promotion to the post of Reader, he was not the senior most in his own category nor senior to other persons who were being considered as per discussion hereinabove and the appellant was also less qualified as compared to respondent No,3. Therefore, he was not considered suitable for the said job, although he was considered uneligible, yet only at his own request and on the orders of the higher authority.
13.There is yet another technical defect in this case. The appellant was a Stenographer and there were admittedly several other Stenographers senior to him who have not been impleaded as parties to this appeal. If the appeal succeeds, the appellant would become entitled to be considered for promotion against a higher post of BPS-16 and thereby he will supersede the said senior Stenographers. In such a situation they are the people who are likely to be affected and they were necessary parties to these proceedings. Even otherwise they were the appropriate parties if not necessary parties. Their non-joinder is a fatal defect in the appeal. Although under the C.P.C. the non joinder of parties is not considered to be fatal can be added at any stage of hearing yet that principle of the C.P.C. is not applicable to the service cases because the statutes relating to the service appeals prescribe a strict Schedule of limitation and the impleading of parties at a later stage will not give any added benefit to the appellant due to the efflux of time and the amended appeal would be barred by time against such added respondents as well as against those who are already parties to the appeal.
14.In any case, we are of the opinion that the appellant was not eligible for promotion to the post of Reader and thus the present appeal is misconceived, which is hereby dismissed, with no order as to costs.
15.Parties to be informed accordingly.