' NASIM SABIR SYED (MEMBER).---The three Appeals bearing No:136(L) of 1997, 137(L) of 1997 and 138(L) of 1997 filed by M/s. Muhammad Ikram, Muhammad Fazil Malik and Muhammad Aslam Shah, are proposed to be disposed of by this order jointly as identical issues are involved.
2. Case of Muhammad Fazil Malik appellant will be discussed in, detail and the finding given therein, shall apply mutatis mutandis to the other two cases also.
3. Mr. Muhammad Fazil Malik appellant was appointed as Apprentice Inspector of Works in Pakistan Railway on 6-12-1960. Rule 130 of Pakistan Railway, Establishment Code Volume-I was amended by the Ministry of Railway/Railway Board with the concurrence of Establishment Division vide Railway Board letter dated 13-7-1977 and promotion quota to the posts of Assistant Engineer was enhanced from 20% to 40% in the case of Engineering department of Pakistan Railway subject to the condition that at least 20% posts will be filled by promotion of persons possessing Diploma in Engineer and 5% posts may be filled by promotion of persons possessing Degree in Engineering. The appellant was promoted as Assistant Engineer B-16. He was regularized as Assistant Engineer B-17 with effect from 1-5-1979 under Railway Board Notification No:6/2/82-A.II, dated 8-4-1982 but the date of regular appointment of the appellant as Assistant Engineer B-17 was altered/modified from 1-5- 1979 to 8-4-1982 in the seniority list of 1985 and as 14-2-1982 in the seniority list of 1987 which were withdrawn alongwith other related notifications vide Railway Board notification dated 26-11-1990.
The appellant alongwith others filed nine appeals before this Tribunal against the impugned seniority list which were disposed of having become infructuous as per order dated 8-12-1990 of the Tribunal.
4. It was asserted that the date of regular promotion of the appellant as Assistant Engineer B-17 as assigned in the original notification dated 8-4-1982 by respondent No,3 viz. 1-5-1979 was kept intact and he was, according to him, assigned correct seniority position in the provisional seniority issued on 20-10-1992. The appellant was approved by the competent Authority for promotion to the post of Executive Engineer/Divisional Engineer B-18 in the Civil Engineering department with effect from 26-7-1995 keeping in view the seniority position of the appellant as assigned in the seniority list issued on 20-10-1992, again in 1993, date of regular promotion of the appellant was changed from 1-5-1979 to 8-4-1982 in the seniority list issued on 24-2-1993 affecting seniority of the appellant gravely. This seniority list was withdrawn as per direction of this Tribunal and so a fresh seniority list was prepared in 1994 and then in 1995 ' wherein the date of regular promotion as Assistant Engineer B-17 of the appellant was also kept intact viz. 1-5-1979.
5. It was brought to our notice that contrary to this seniority position issued in 1995, Mr. Anjum Pervaiz was posted against B-19 post on 26-10-1995 vide notification issued by the General Manager (Personnel), Pakistan Railway HQ Office Lahore and again MA Ghulam Muhammad Qureshi and Muhammad Khalid, who were also junior to the appellant have been promoted to hold B-19 post in the Civil Engineering Department with effect from 10-11-1996. The Secretary/Chairman Ministry of Railway, Islamabad i,e, respondent No,3 vide his notification dated 20-11-1996 again modified the date of promotion of the appellant from 1-5-1979 to 8-4-1982 without any reason, according to the appellant, or affording any opportunity of being hard and without issuing a show cause notice to the grave prejudice of the seniority as well other terms'and conditions of service of the appellant. It was asserted that the impugned action by which the respondent department have promoted the juniors persons to B-19 was passed ignoring the appellant and revising his seniority position to the grave disadvantage of the appellant is male fide, harsh, void and oppressive, arbitrary and ultra wires and without any lawful authority.
6. It was asserted that by the issuance of notification dated 8-4-1982, a valuable right had been accrued in favour of the appellant. The notification was acted upon in letter and spirit and by way of impugned order the said notification has been modified which is against the spirit of law as held by the honourable Supreme Court on the point of principle of locus poenitentiae in PLD 1969 SC 407 and PLD 1992 SC 147. It was highlighted that before issuance of impugned order neither the appellant was served with a show-cause notice nor he was given a chance to explain his position which is in total disregard of principle of natural justice as well as law laid down by the Honourable Supreme Court in 1994 SCM R 2232. It has been prayed by the appellant:
(i) the impugned orders dated 26-10-1995, 10-11-1996 and 20-11-1996 may kindly be declared illegal, unlawful, be set aside and seniority list dated -2-1994 and 30-11-1995 may be held to be in the field; and
(ii) the respondents Nos,1 to 4 be directed to consider the appellant's promotion to BS-19 against existing vacancies against which his juniors viz M/s Anjum Pervez, Ghulam Muhammad Qureshi and Muhammad Khalid have been promoted.
7. The respondent on the other hand took the plea that the appeal is grossly time barred because the answering respondents (5 to 8) were promoted on officiating basis in. B-18 on 21-1-1985 and other respondents during the same year and were also subsequently promoted on regular basis through notification dated 16-3-1993 which had not been challenged by the appellant. Similarly the promotion order dated 26-10-1995 of answering respondent No, 6 in B-19 was not challenged by the appellant within limitation either before the departmental authority or before this Tribunal and his departmental appeal against this order and also titled appeal is time-barred. It was claimed that the present appeal is incompetent due to misjoinder of cause of action as the appellant is challenging the promotion of respondent No,6, dated 26-10-1995 and promotion of respondent Nos, 5 and 7, dated 10-11-1997 in B-19. It was stressed that the appellant has no cause of action because he was granted seniority in B-17 from the date when posts of promotion quota fell vacant, therefore, the appeal is liable to be dismissed. It was maintained that the appellant is estopped from his own conduct to file the present appeal because he has not challenged the promotion of answering respondents made on the basis of their seniority in B-18 either on officiating basis or on regular basis made in the years 1995 and 1993 particularly and he has no locus standi to dispute the seniority of answering respondents in B-17. It was asserted that the appellant was not promoted as Assistant Engineer in B-16, before 1-5-1979. In fact the appellant was promoted in B-17 with effect from 1-5-1979 on ad hoc basis through notification dated 5-10-1980 with the condition that the promotees are liable to be replaced by the nominees of the FPSC. Notification dated 8-4- 1982 was modified through notification dated 15-1-1985. This notification contains the condition that it is provisional and is without prejudice to any dispute about the seniority of these officers vis-a- vis other officers of this department. Therefore, this notification has not given any legal right to the appellant and others for claiming seniority in excess of their promotion quota over and above the direct appointees including answering respondents from their respective quota. The appellant and other promotees in fact were given ad-hoc promotion in excess of their respective promotion quota which at the relevant time was 25 posts belonging to promotion posts out of total 70 cadre strength of the posts of civil engineering in B-17. Vide notification dated 3-7-1980, 18 posts in the promotion quota were already given to the promotes and then only 7 posts were available to be filled through promotion quota. However, through notification dated 8-4-1982, 25 promotions were made against balance promotion quota of only 7 which means that they were against the posts reserved for the direct recruits. This notification was provisional and without prejudice to any dispute about the seniority of these officers of the department. The break-up of B-17 of Civil Engineering Department against direct recruitment and promotion quota at different stages in B-17 worked out by the respondent Railway, in fact, has been made the basis of issuing notification dated 20-11-1996 is correct. This break-up in fact was placed before the respondent Railway Board when the notification dated 20-11-1996 was issued after due application of mind. This notification was followed by final seniority list circulated through notification dated 25-2-1997 which has not been challenged by the appellant and the present appeal has become infructuous.
8. We have considered the arguments of both the sides and made in-depth study of the issue involved. It is an established legal as well as factual practice that if the promotees are promoted beyond the seniority fixed for them, it does not confer upon them any right of seniority which certainly will get adjusted when the fresh recruitments are made against the quota fixed for the direct recruits against which the promotees have been provisionally promoted. This being the position, in the case of the appellant, we do not find any merit in these three appeal which stand hereby dismissed.
9. No order as to costs. Parties be informed.