' The appellant has invoked the jurisdiction of this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974. Facts leading to this appeal are that appellant joined the service of Irrigation Department, Lahore Zone with effect from 14-3-1984 as Junior Clerk. Subsequently he was selected as Stenographer (BPS-12) on regular basis from 17-10-1988 (Annex B) and confirmed as such from the same date under the then existing Service Rules 1962 vide Annex. C. Vide Order, dated 15-8- 1996 on the recommendations of Departmental Promotion Committee, the appellant was allowed selection grade (BPS-15) with effect from 8-8-1996 (Annex. D). The appellant alleged that contrary to Sr.No,3 of Appendix referred to in Rules 5 and 6 to the Irrigation Departmental Ministerial Service Rules, 1962, respondents Nos.3 to 6, originally employed as Assistants in the office of respondent No,1 were promoted as Superintendents while ignoring the appellant, who was far senior to them.
Appellant addressed a representation to respondent No, 1 (Annex. F) which was rejected vide order, dated 12-10-1998 (Annex. G). His Departmental appeal/representation was rejected on the ground of advice dated December 1990 (Annexure H) quite oblivious of the fact that even if the Rules are amended in future, the change cannot be given retrospetive effect as it involved substantial right of the appellant. The appellant was discriminated by promoting respondents Nos.3 to 6. The principle of seniority-cum-fitness has been ignored. The appellant further relied upon the judgment of this Tribunal delivered in Appeal No,222 of 1992 wherein similar questions of law and fact were involved and this Tribunal vide judgment dated 19-12-1993 (Annex J) accepted the appeal. The Department went before the august Supreme Court but even leave to appeal was refused vide Annex. K. The appellant was not only senior to respondents Nos.3 to 6 but his performance throughout remained excellent, therefore, he was also eligible for promotion with retrospective effect as Superintendent (BPS-16) with all consequential back benefits. Hence this appeal. Notices were issued to the respondents. The record reveals that only the Department (respondents Nos.1 and 2) contested the appeal in the terms that no dout respondents Nos.3 to 6 were otherwise junior to the appellant but they were promoted as Superintendents in pursuance of the advice of the Government of the Punjab, Services, General Administration and Information Department of December, 1990. According to the aforesaid advice, only Senior Scale Stenographer is eligible for promotion to the post of Superintendent. Hence the appellant being selection grade Stenographer (BPS-15) was not considered for promotion as Superintendent alongwith Assistants at the eve of promotion of the respondents Nos.3 to 6.
2. Arguments heard. Record gone through. The plea of the respondents Nos. I and 2/Department is embodied in para. No,6 of the written objections as under:--
(a) Legal. Respondent No,1, while rejecting the representation had already admitted that the appellant was ignorant of promotion as Superintendent BS-16 on the presumption that he had to first become a Senior Scale Stenographer and then to be considered for promotion. It is however further submitted that the relevant promotion of Service Rules, 1962 has since been repealed by the competent authority vide their Notification dated (7th October 1998 as Annex. I).
(b) Legal as explained in para. (a) above.
(c) That the respondents Nos.3 to 6 were promoted as Superintendents in pursuance of the advice of the SGA&I Department dated 12/99 at Annex. H/2 to the appeal. That the appellant according to the common seniority list was senior to the respondents in perspective of Rules, 1962 and he was not considered for promotion on the basis that he has to first become Senior Scale Stenographer and then to be considered for promotion as Superintendent.
(d) Legal/admitted. That any decision in an individual case of a civil servant of another Department cannot be followed in another Department unless the rule-making authority or any other competent authority may not issue any directive/order relating thereto to the other Departments.
4. It is better to reproduce the relevant portion of appendix, with reference to Rules 5 and 7 of the West Pakistan Irrigation Department, Ministerial Service (Regional Offices) Rules, 1962 as under:- - {{TABLE}} S.No, Nomenclature Min. Qualifications Method of recruitment of the post prescribed for appointments by initial recruitment 3
3. Superintendents By promotion from among members of the Service in the region where the vacancies occur, holding--
(i) posts of Assistants with at least five years' experience as such; and
(ii) posts of Stenographers with at least five years' experience as such, who have passed the departmental examination, if any, prescribed for Assistants under sub-rule (4) of Rule 8.
Note.-- A common seniority list shall be maintained of Assistants and Stenographers for the purpose of promotion to the posts of Superintendents; provided that notwithstanding anything contained in the proviso to clause (b) of sub-rule (1) of Rule 9, where the date of continuous appointment of a Assistant and a Stenographer is the same, the Assistant shall be deemed to be senior to the Stenographer. {{TABLE}} ' It is evident from the above Rules that a Stenographer with at least 5 years' experience was eligible promotion as Superintendent. Admittedly the appellant was senior to respondents Nos.3 to 6 but he was not considered fit for promotion on the main ground that he was not Senior Scale Stenographer. An advice was sought from Government of the Punjab, Services General Administration and Information Department. The advice was tendered in December 1990 wherein it was clarified that the nomenclature of Stenographer as reflected in the Rules 1962 has been changed under the Scheme of Basic Pay Scales and substituted as Senior Scale Stenographer and Stenographer. Only Senior Scale Stenographers were declared eligible for promotion to the post of Superintendent alongwith Assistants. It was also suggested in the advice referred to above that the Service Rules may be got amended to reflect these changes. It is crystal clear that till 1990 or till the time when respondents Nos.3 to 6 were promoted, the Rules, 1962 were still intact and no change was introduced in conformity with the prescribed procedure. The above rules came to an end/repealed vide Notification, dated 7-10-1998. In other words the Ministerial Rules 1962 were still intact because neither any change in the Rules was introduced according to prescribed procedure nor the Rules were repealed till 7-10-1998. According to the Rules of 1962, there was no mention of Senior Scale Stenographer; only Stenographer with 5 years' experience was eligible for promotion to the post of Superintendent. Under the Rules 1962 a vested right had accrued in favour of the appellant and there was no justification to deprive the appellant being senior most of the right in light of the Rules. Advice of the Regulations Wing was not conclusive. Similarly the appellant being senior to the respondents Nos.3 to 6 in the combined Seniority List had a vested right to be considered for promotion as Superintendent. It was observed in PLD 1965 Supreme Court 106 that letters issued by Executive Authorities regarding Service Matters, increments etc. Could not take the place of properly framed rules. So it can safely be inferred that advice of the SGA&1 Department (Regulations Wing) conveyed in December 1990 was of no legal significance nor it could be made basis to deprive the appellant of the right which had already come into existence under the prevalent Rules 1962.
4. Identical question came before this Tribunal in Appeal No,222 of 1992, Re: Muhammad Siddique, Stenographer v. Secretary Food. In that appeal Ministerial Establishment Recruitment Rules, 1962 came under discussion. It was observed that the above Rules do not conceive of a post belonging to nomenclature of Senior Scale Stenographer. It was added that only such amendment was normally made in those Rules (as advised by Regulations Wing in December, 1990) specifically applicable to the Food Department, not an analogy could have been drawn from the Rules. It is therefore, crystal clear that Members holding posts of Assistants and Stenographers were eligible to be further promoted as Superintendents. The appellant in the instant appeal was already in Selection Grade-15, the same grade/scale is permissible to a Senior Scale Stenographer. A Stenographer who was already placed in BPS-15 could not be more put under a derogatory condition that he shall again seek promotion in the same scale particularly when he had already become eligible for promotion under the Rules which were repealed in October, 1998. This Tribunal vide judgment in Appeal No,222 of 1992 also made it clear that advice of the SGA&1 Department could not be taken to be conclusive authority in the context. At best it was only a suggestion which was not accepted. The Judgement delivered in the appeal referred to above was assailed before the august Supreme Court but the august Supreme Court vide verdict dated 26-3-1995 refused leave to appeal and the judgment of this Tribunal was maintained. Promotions/appointments are to be made according to Rules and not on the basis of conventions or suggestions or advices. The appellant being Stenographer was not only senior to respondents Nos.3 to 6 but also fulfilled other prescribed conditions for promotion as Superintendent. He was not to be ignored by the Departmental Promotion Committee on the basis of the advice of the Regulations Wing of the SGA & I Department particularly in absence of any change in the Rules of 1962. Till October, 1998, the Rules 1962 were applicable and the controversy of promotion was to be resolved in the light of the Rules.
5. Upshot of the above discussion is that appeal is accepted and it is held that the appellant was eligible for promotion to the post of Superintendent (BPS 16) when his juniors (respondents Nos.3 to 6) were promoted as Superintendents.