' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the Service Tribunal dated 24-1-2000, whereby the appeal filed by the appellant, herein, against the judgment of the Chief Engineer, Public Works Department,' was dismissed.
2. The brief facts culminating in the present appeal are that Jamil Ahmad, appellant, herein, joined Public Works Department, Maintenance Division, as Chowkidar on 25-5-1977. Subsequently, he was promoted on the recommendations of the Departmental Selection Committee as Cook in Grade B- 4 on 2-8-1997 by the Executive Engineer, respondent No,4. A However, the said order was cancelled by him vide his order dated 2-3-1998. The appellant, herein, filed an appeal against the order of cancellation to the Chief Engineer, respondent No,2, who marked the same for decision to the Superintending Engineer, respondent No,3; he sent for the comments from the Executive Engineer, respondent No,4, and after receiving the same, accepted the appeal filed by the appellant, herein, vide his order dated 30-5-1998 and restored the order of promotion of the appellant, herein, dated 2-8-1997. Thereafter, Muhammad Safeer, respondent No,5, filed an application to the Executive.
Engineer, respondent No,4, on 26-2-1998, i,e,, after seven months praying that he be promoted against the post in question. The Executive Engineer treated the application as an appeal and transmitted the same to the Chief Engineer who, vide his order dated 11-7-1998, accepted the application/appeal and demoted Jamil Ahmad, appellant herein, to his original post of Chowkidar.
The appellant, herein, filed an appeal to the Service Tribunal against the order dated 11-7-1998 passed by the Chief Engineer. The Service Tribunal dismissed the appeal of the appellant, herein, inter alia, on the ground that in view of item 26 of Schedule to the Departmental Rules of 1984, only a Cook/Bearer B-1 having five years' experience can be promoted to Grade B-4 as a Bearer/Cook and not a Chowkidar. It may be further observed that during the pendency of the appeal in the Service Tribunal, an application for amendment in the memorandum of appeal was made challenging the vires of the Departmental Rules as being discriminatory but the same was also rejected by the Service Tribunal. It is against the aforesaid order of dismissal of the appeal of the appellant, herein, that the present appeal has been preferred to this Court.
3. Sardar Rafique Mahmood Khan, Advocate, the learned counsel for the appellant, has argued that the Service Tribunal has overlooked that the appellant was appointed as a Cook in Grade B-4 by promotion on the recommendations of the Departmental Selection Committee vide order dated 2- 8-1997. Respondent No,5 did not challenge the aforesaid order by filing any appeal but despite that the Executive Engineer cancelled the same on 2-3-1998 without assigning any reason. He has contended that as the order of promotion of the appellant was not challenged within the period of limitation by filing departmental appeal, the Superintending Engineer rightly accepted the appeal filed by the appellant and restored the order dated 2-8-1997 vide his order dated 30-5-1998. The aforesaid order was not challenged by respondent No,5 before any authority; instead he filed a miscellaneous application before the Executive Engineer who transmitted the same through Superintending Engineer to the Chief Engineer who annulled the promotion order of the appellant.
The learned counsel has argued that if respondent No,5 was aggrieved by the order of promotion of the appellant, he should have challenged the same by filing a regular appeal within the period of limitation; instead he filed a miscellaneous application which was treated as an appeal despite the fact that the relevant application which was submitted by Muhammad Safeer, respondent, before the Executive Engineer on 26-2-1998 was not directed against the promotion order of the appellant, herein, besides, the appellant was not heard by the Chief Engineer before passing the order whereby he reverted the appellant. The learned counsel has contended that when there was no regular appeal against the promotion of the appellant within the period of limitation, the same could not be withdrawn, The learned counsel has also maintained that the Departmental Rules of 1984 did not contain any provision debarring a Chowkidar from promotion to Grade B-4 because item 26 of the Schedule to the Rules of 1984 relates to the appointment of Head Bearer in Grade BPS-5 and not a Cook/Bearer in Grade B-4. He has also contended that the Service Tribunal has also committed an error in rejecting the amendment application filed by the appellant seeking to challenge the Rules as being discriminatory.
4. In reply, Kh. Attaullah, Additional Advocate-General, has contended that a Chowkidar could not be promoted as a Cook in Grade BPS-4 under rules and, thus, the order of promotion of the appellant dated 2-8-1977 was rightly cancelled by the Executive Engineer vide his order dated 2-3- 1998. He has further contended that the Service Tribunal has rightly held that amendment application was belated and was not necessary for resolving the real controversy between the parties. When we asked the learned Additional Advocate-General as to whether there is any provision for promotion to Grade B-4 as a Cook in the aforesaid rules, he replied in negative. He has also conceded that item No,26 of the Schedule to the aforesaid rules deals with the appointment of Head Bearers in Grade B-5 and not a Cook in Grade B-4.
5. We have given due consideration to the arguments raised at the Bar. Irrespective of the other arguments advanced at Bar, we have come to the conclusion that there is no provision for promotion to Grade B-4 as Cook in the aforesaid rules as has been also admitted by the learned counsel for the parties. According to sections 4 and 8 read with section 2 of the Civil Servants Act, 1976, a vacancy in civil service of the State can be filled in only in 'prescribed' manner; the word 'prescribed' has been defined in section 2 of the said Act as 'prescribed by rules'. Therefore, the vacancy of a Cook in Grade B-4 cannot be filled in by promotion without first amending the said rules and making necessary provision in that regard. The matter has been discussed by the Full Bench of this Court in a case reported as Syed Sajid Hussain v. Ch. Muhammad Latif (1992 PLC (C.S.) 421). Thus, we have no hesitation in holding that the concerned authorities have committed an error in filling in the vacancy of Cook in Grade B-4' by promotion in absence of any provision in that regard.
' Thus, we accept the appeal and set aside the impugned judgment of the Service Tribunal with the observation that the competent Authority shall first make necessary provision in the relevant rules and thereafter fill in the vacancy in question. Consequently, the promotion of the rival candidates on the post in question is hereby cancelled.