SYED AAL-E-AHMED (MEMBER-I).--This judgment shall govern Appeals Nos.1092 of 1993, 537 of 1994, 1526 of 1996, 2100 of 1997, 1822 of 1997 and 940 of 1998, as identical questions of facts and law are involved in all these appeals.
Muhammad Ishaq and others have filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 for issuing a declaration to the effect that the provisions of the Punjab Local Councils Services (Appointment and Conditions of Service) Rules, 1983 decreasing the promotion quota of the appellants from 50 % to 25 % and subsequent amendment in the Local Councils (Appointment and Conditions) of Services Rules, 1993/further decreasing the promotion quota, to 20% is ultra vires of the enactment and the respondents' department be directed to determine the fitness for promotion of the appellants to the next grade on the basis of 50% quota, as provided in the original unamended rules namely West Pakistan Local Councils and Municipal Committees Services Rules, 1963.
2. Brief facts of the case are that the appellants are Sub-Engineers and belong to the Punjab Local Councils Service. They are governed by the provisions of, the Punjab Local Government Ordinance, 1979 and the rules framed thereunder and the West Pakistan Local Councils and Municipal Committee Service Rules, 1963 read with The Municipal Administration Ordinance, 1960. All the appellants are in B.S.16 and are entitled to promotion to the next grade. They claimed their promotion in accordance with Rule 9(2) of the West Pakistan. Local Councils Services and Municipal Committees Service Rules, 1963 which reads below:-- "9(2). When a vacancy occurs or is about to occur in any class or Grade of the Service, the appointing authority, shall subject to the provision of column 4 of the Appendix to these Rules, determine by which of the methods specified in sub-rule (1) such a vacancy may be filled."
3.This rule is further elaborated by rule 12(1) which reads as under:-- 12(1). No person shall be appointed to a post in the service by initial recruitment unless he possesses the qualifications prescribed for the post in column 3 of the Appendix of these Rules.
(1) Senior Grade (a) Degree in(i)50 %by Engineeringinitial From arecruitment recognizedand 50 % by University orpromotion on equivalentthe basis of qualifications.seniority subject to fitness from amongthe members of the service.
4. It was further contended that at present there are 367 sanctioned posts of Sub-Engineers in the Province of Punjab out of which 270 posts are at present occupied by Sub-Engineers of B.S.11 while .the remaining 89 posts are occupied by the Sub-Engineers belonging to the appellants' grade.
There are 130 sanctioned posts of Engineers in B.S.17 in Punjab Province.
5. The aforesaid mentioned rules remained in force until an amendment was made on- 31-1-1975 decreasing the promotion quota to 25 % Then the new rules were framed under the Punjab Local Government Ordinance, 1979 which are called Punjab Local Councils Service (Appointment and Conditions of Service) Rules; 1983. The earlier rules were repealed vide rule 24 of the said rules vide notification, dated 18-6=1983. According to the new rules the matter of recruitment to the posts of Municipal Engineers, Assistant Municipal Engineers and Sub-Divisional Officers (BS-171 is as under:- -
(i) 75 % by initial recruitment from persons possessing Degree in Engineering from a recognized University or equivalent with 5 years' experience; and.
(ii) 25 % by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers who possess qualifications prescribed for initial recruitment. If no person is available then by initial recruitment; and
(iii) 20%. by selection' on merit from the next ,lower grade of the functional unit (i.e. Sub-Engineers).
The appellants claimed that these rules hampered their promotion prospect and they filed Writ Petition No.491, of 1993 in pursuant to which a committee consisting of the following officers was constituted for hearing the objections/representations of the appellants:-- .
(i) Senior Accounts Officer, Punjab Local Government Board.
(ii) Legal Advisor/Administrative Officer (Regulations) Local Council Board.
(iii) Administrative Officer-III Punjab Local Council Board.
(iv) Administrative Officer-V Punjab Local Council Board.
The committee submitted a preliminary report but no action has been taken on their recommendations.
6. It was contended that the terms and conditions of service of the appellants can not be made less favourable in the new Rules of 1983, unless the appellants opt for the new rules. Reliance in this regard was placed on section 42 of the Punjab Local Government Ordinance, 1979.
7. The respondent Department in their written objections contended that the appellants belonged to Class (ii) junior prior to the promulgation of Punjab Local Government Ordinance, 1979. They have been absorbed in the. Local Councils Service under section 42 of the Ordinance (ibid) in B.S. 11.
Later on, they were awarded B.S. 16 as selection grade. So far as fixation of quota with regard to initial recruitment and promotion in B.S. 17 is concerned it has been made applicable in accordance with the Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983 which are not less favourable to the appellants. At present the quota for promotion/ initial recruitment in B.S. 17 is as under: --
(i) 75% by initial recruitment.
(ii) 25 % by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers who possess/improve qualifications prescribed for initial recruitment. If no such person is available, then by initial recruitment; and (iii), 20% by selection on merit from amongst the members of the service in the next lower grade of the Functional Unit where the vacancies occur.
8. As a result of Writ Petitions Nos.491 and 12122 of 1993 filed by the certain Sub-Engineers of Grade- 16 and a representation made by them for fixation of quota in B.S.17 as 50% for initial recruitment and 50% by promotion from amongst Sub-Engineers an advice was obtained from the S&GAD Department on the subject and it was advised as under:-- "Administrative Department is advised that the proposed change in the Service Rules may not be restored to being inconsistent with the rules of Engineering Departments of the Government of the Punjab." (Annexure-I).
9. In view of the above advice, the PLGB has decided that there should be no change in the fixation of quota being inconsistent with rules of the Engineering Departments of the Provincial Government.
10. It was further reported that by virtue of amendment in the Punjab Local Councils Service Appointment and Conditions of Service) Rules, 1983, vide Notification, dated 26-1-1987 (Annexure- II), promotion quota 25 % was reduced to 20 % in order to accommodate the Sub-Engineers who improved their qualifications prescribed for initial recruitment on the basis of amendment made by the Government for similar category of Sub--Engineers serving in the Government Department.
11. We have heard the learned counsel for the appellants and the learned counsel for respondents.
The learned counsel reiterated the contents of the appeal and submitted that the respondent department could not have changed the rules to the detriment of the, appellants, in view of the provisions of section 42 of the Punjab Local Government Act.
12. On the other hand the learned counsel for the respondents explained and took up preliminary objections that the appeal is not maintainable for misjoinder of parties as some of the appellants to the case have died or have retired and some of them have been promoted. Otherwise the appeal is liable to be discharged on the basis of misjoinder. It was further explained that the substantive grade of the Sub-Engineers is 11. They are first promoted to Grade-16 and then from 16 to 17. Whereas the present rules provide for the promotion of the appellants to Grade-17. In view of this, the promotion prospects of the appellants have not been changed to the detrement of the appellants. It was also claimed by the learned counsel that the rules were amended in 1983, whereas the present appeal was filed in 1993. The appellants have not explained the delay in filing of the appeal.
13. We have considered the arguments and find that the promotion prospects of the appellants as provided under Punjab Local Councils Service (Appointment and Conditions of Service) Rules, 1983, are not less favourable to the appellants. We further find that the present rules of the department are in consonance with the rules of Engineering Department of the other Engineering Department of Government of Punjab.
14. It is also observed that the old rules namely the West Pakistan Local Councils and Municipal Committees Service Rules, 1963, provided promotion quota to the next grade and not for promotion to Grade-17. The post of Sub-Engineer is basically in B.S. 11 and their next tier of promotion is in B.S.
16. The appellants have no grievance as far as their promotion to Grade-16 is concerned. Their grievance relates to promotion to Grade-17 only. On the other hand the new rules of 1983, provide adequate opportunities to the Sub-Engineers for promotion to Grade-17. Besides, the new rules are in consonance with the rules of the other Engineering Departments of the Punjab Government.
15. It is further observed that the present appeal is also hit by the principle of misjoinder of appellants as pointed out by the learned counsel for the respondents. Besides, the present appeal was filed on 13-11-1993, after a lapse of almost ten years from the enforcement of the new Rules of 1983.
16. We, 'therefore, see no force in the appeal, which is accordingly dismissed.