' ROSHAN ALI MANGI (MEMBER).---The facts of this case, in brief are that the appellant was appointed as Assistant Geophysicist in respondent No.2's officer on 12th April, 1978. Later on he was promoted as Geophysicist and then Senior Geophysicist and lastly as Deputy Chief Geophysicist (EG-V) on 1st of July, 1990.
2. A Quality Control Group was created in 1987. The appellant alongwith others was transferred to this Group.
3. The respondent No.2 circulated the Oil and Gas Development Corporation Service Rules, vide Circular No.C-435 of 1994, dated 1-4-1994. According to these Rules, Senior Geophysicist, Quality Control is eligible for the promotion to the post of Deputy Geophysicist Quality Control, who in turn is entitled to the next higher post of Chief Geophysicist Quality Control. Similarly the Senior Geophysicist Analyst is eligible for promotion to the post of Deputy Chief Geophysicist Analyst and then to the higher post of Chief Geophysical Analyst.
4. The respondent No.2 has also prescribed terms and conditions of service including the job description of each cadre and their eligibility to the next higher post.
5. Despite the hard work and devotion, surprisingly respondent No.3 (namely Abdul Shahan Khan) was promoted from the post of Deputy Chief Geophysicist Analyst to Chief Geophysicist Quality Control w.e.f. 5-1-1997 even without consideration of the case of the appellant, who otherwise was eligible for promotion to that post, in gross violation of the Service Rules when he did not work in that field.
6.. According to appellant, respondent No.3 was simply B.Sc. And was appointed as Senior Geophysicist Analyst. The post of the Chief, however, requires one having M.Sc. Degree in Geology or M.Sc. Geophysics with specialization in Geophysics. According to him, no advertisement was made in the newspaper.
7. The post of Chief is 100% promotion post and is to be filled in by suitable candidates from the Department failing which a case can be considered for a candidate from outside. However, since the Group Officer was available in the cadre, therefore, the promotion of an outsider would be absolutely illegal. Even otherwise the promotion of respondent No.3 as Deputy Chief Geophysical Analyst w.e.f. 30th November, 1989 was irregular as he did not possess the required length of service of 12 years. This shows, according to the appellant, a favoritism from the very beginning for respondent No.3. He could be promoted in his cadre but not in another cadre to which he does not belong. He cited the precedence of one Mr. Mumtazuddin Khan, Chief Seismic (Operation), whose request to get promotion outside the cadre was turned down vide Office Memorandum, dated 9-7- 1995.
8. Being aggrieved by the promotion order of respondent No.3, the appellant submitted a departmental appeal on 15-1-1997 to which no response has been made despite the reminder, dated 1-4-1997. After a lapse of 90 days, the appellant has submitted the present appeal on the grounds:--
(i) The impugned order is illegal.
(ii) It has been passed without consideration of the case of the appellant as has been admitted by the concerned Manager (Career Planning Cell) vide his Note dated 12-3-1997.
(iii) Under the Corporation Ordinance, 1961, the appellant has been denied the right to be considered for the next higher post in his own cadre as an outsider has been accommodated.
' With these submissions, it has been prayed that the impugned promotion order of the respondent No.3 be set aside/reversed and the appellant be considered for promotion to the next higher post existing in his own cadre.
9. The respondents Department as well the respondent No.3. Have filed their objections. At the very outset, it has been pointed out that the appeal is time-barred on the ground that there is no provision for any departmental appeal against the order passed by the competent Authority.
Therefore, the appellant should have come to the Tribunal as soon as he was aggrieved by the order. The time spent by the appellant in pursuing the departmental remedy could not be reduced from 30 days' period of limitation. As such it is time-barred.
10. On the merits, the comparative position of the appellant as well as respondent No.3 has been given as below:-- {{TABLE}} Grade/E.G. Appellant Respondent No.3 B-16 12-4-1978 B-17 1-6-1982 EG4V 1-10-1986 21-1-1985 (Initial appointment)
EG-V 1-7-1990 30-11-1989 EG-VI 4-1-1997 {{TABLE}} 11.On the basis of above data, it has been proved that respondent No.3 was senior to the appellant not only in EG-IV but also in EG-V and that is why he was promoted being senior to the appellant.
12. It has further been clarified that the appellant and respondent No.3 belong to the same discipline of Geophysics. Respondent No.3 being senior to the appellant as he was initially inducted in EG-IV on 21-1-1985 and subsequently promoted as Deputy Chief Geophysical Analyst, EG-V on 30-11-1989, was rightly considered for promotion as Chief Quality Control, EG-VI, w.e.f. 4-1-1997 as he possesses all the requisite qualification and experience-to be promoted to EG-VI. It has been emphasised that there is no qualification prescribed for promotion, though for initial appointment such a qualification may be necessary. Respondent No.3 had the requisite threshold for promotion and in consequence he was promoted. It has further been clarified that the promotions in ODGC are made on overall seniority department-wise and not on the basis of Groups or Sections.
13. The appellant and respondent No.3 both belong to the same discipline of Geophysics. The promotion order of respondent No.3 as Chief Geophysicist/Quality Control is legal, lawful and in accordance with the rules. The respondent No.2 is competent and has the authority to pass such an order.
14. It is further rebutted that either Ordinance or the Rules have never been violated, as claimed by the appellant. Further, the appellant has no Constitutional or legal right to be considered for promotion in preference to respondent No.3.
15. With these submissions, it has been prayed to dismiss the appeal with costs.
16. Respondent No.3 has also filed his comments. At the very outset he pleaded that he was not only the person to be promoted to the post of Chief Quality Control, but prior to him so many persons belonging to different cadres have been promoted to that post. He produced a promotion order to the post of Chief Quality Control of one Mr. Banaras to support his position. He also brought before the Bench that he was posted as Deputy Chief in the Quality Control on 28th June, 1992. The appellant was also serving in the same Wing but he did not raise any objection to the posting of respondent No.3 in his Wing at that time. Now he has no right to agitate at this belated stage against the promotion of respondent No.3 to the post of Chief. According to respondent No.3, he was also assigned the charge of Chief Quality Control by the Manager, Exploration vide order, dated 28-2-1994. The charge given to him was effective till the arrival of the new Chief Quality Control. This order was not agitated by the appellant at that time as well.
17. As regards his qualification and experience, it has been stated that the respondent No.3 has got two foreign trainings in the disciplines of Seismic Data Processing and the Advance Techniques of Seismic Data Processing and other rich experience in the relevant field.
18. We have heard the parties and perused the record. First of all we deal with the question of limitation. As regards the objection of the respondents regarding that the appeal is time-barred, we find that appointment order of the respondent No.3 was passed on 12-1-1997 against which the appellant made departmental appeal on 5-1-1997. Although according to representative of the OGDC, there is no provision of departmental appeal but to which we do not agree. Since the Supreme Court has also given the principle of submitting departmental appeal to the employees of WAPDA in which Organization, there was no provision of departmental appeal. The appellant has also sent reminder in pursuance of his departmental appeal and we find that on expiry of 90 days, he has approached this Tribunal on 26-4-1997. As such his appeal is within time. We, therefore, repel the objection of respondents in this regard.
19. The perusal of the record shows that respondent No.3 had joined the OGDC at higher level i.e. EG-IV while at that time the appellant was probably in a lower grade than him because the appellant was promoted to this grade on 1-10-1986. Respondent No.3 also got promotion in EG-V earlier than the appellant. From this it is quite obvious that respondent No.3 was senior to him, and therefore, was rightly promoted to the next higher grade and made Chief of the Quality Control.
20. We also find while he was posted as Deputy Chief Quality Control in 1992, although the appellant was present in that office, but he did not raise any objection against his posting in Quality Control as Deputy Chief. Again when he was made as Chief of the Quality Control in 1994, even then the appellant did not raise any objection against him. This shows that he had already reconciled with that position.
21. We have perused the appointment order of Mr. Muhammad Banaras, who although belonged to some other cadre but was also appointed as Chief of the Quality Control. This shows that the persons belonging to different cadres have been appointed as Chief Quality Control. The representative of the OGDC brought to our notice that the posts of Chief are interchangeable. Any person from any Wing can be appointed as Chief of the other Wing and there is no bar.
22. We have also perused the record which shows that the- appellant also belongs to the field of Geophysicists to which also the appellant belongs and has rich experience in other fields as well, therefore, one cannot say that he was not qualified for the post of Chief of the Quality Control.
23. For the foregoing reasons, the appeal having no merit is dismissed with no order as to costs.
24. Parties be informed.
(Sd.) (Sd.)
Member Member
25. MUHAMMAD RAZA KHAN (MEMBER).---I had the facility of going through the judgment recorded by my learned brother. However, I am unable to endorse the findings recorded in the last paragraphs and the conclusions drawn therefrom. My this note of dissent is based on the following grounds:--
(i) It is a fact that the private respondent No.3 was appointed earlier in EG-IV than the appellant and was also promoted to EG-V earlier than him but the said private respondent belonged to an entirely different cadre and, therefore, he could not claim himself to be senior to the appellant in the cadre of Geophysicists in the Quality Control Department. The private respondent No.3 was trained in data control and was holding the post of Senior Geophysical Analyst and later on promoted as Deputy Chief Geophysical Analyst whereas the appellant was holding the position of various grades as Geophysicist right from 1978 and was posted as Deputy Chief Geophysicist in the Quality Control Department since 1990 when the private respondent had not joined the said cadre or section. Therefore, his joining the service in a higher grade and promotion to further higher grade in an entirely different cadre does not entitle him to claim seniority over the appellant in the Quality Control Department.
(ii) It was vehemently argued on behalf of the private respondent No.3 that he had already joined the Quality Control section in 1992 and his transfer was not challenged by the appellant at that stage, therefore, the appellant was stopped to touch the issue of promotion which was based on the transfer of the respondent No.3 to the Quality Control Section in June, 1992. I am not convinced with this leg of the argument for the reason, that despite the transfer of the said respondent to the Quality Control Department in June, 1992, he was posted as Deputy Chief Geophysical Analyst whereas the appellant was already working as Deputy Chief Geophysicist. The transfer of the respondent No.3 did not affect the terms and conditions of the service of the appellant nor gave him any cause of action to challenge such a transfer. The appellant has even now not challenged the transfer and absorption of the respondent No.3 in the Quality Control Department as Deputy Chief Geophysical Analyst. However, he was aggrieved when the said respondent has been promoted as Chief (Quality Control) in violation of the rules and thus, the cause of action had accrued to the appellant. Even otherwise the matter of limitation has already been settled in para. Hereinbefore
(iii) It was also argued on behalf of the respondents that the posts are interchangeable and the officers in a particular Executive Grade in one section are normally transferred to other sections and there is no concept of cadres and promotions within the sections in the respondent- Corporation. As it will be discussed hereinafter, such a practice, if any, is violative of the rules. The positions cannot be interchangeable and a vested right of one employee cannot be snatched for the benefit of another one in violation of rules. Posts and positions cannot be interchanged, however, for the convenience of the establishment, a person belonging to one cadre may be temporarily posted in another one but that does not give him any right over those who were already working therein.
(iv) It was further argued that there had been an established practice, for a sufficient long time, that people from other sections had been appointed as Chief (Quality Control), but the learned counsel for the appellant repelled the contention on the ground that such practices were followed at a stage when the rules were not framed and competent qualified person was not available within the Department. I tend to agree with this reply for the reasons that the learned counsel for the respondent-Corporation did not point out any such precedent of importing officers from other sections after the enforcement of Service Rules/Regulations.
(v) The rules and set-up of the Quality Control Section have been' placed on file whereby at Serial No.103 the post of Chief (Quality Control) EG-VI was to be filled by promotion of the Deputy Chief Geophysicist. These rules were admittedly framed in 1991 and they are termed as Oil and Gas Development Corporation Employees (Service) Regulations, 1991. Vide another list issued on 11-6- 1988 specifically replacing all previous manpower sanctions states the setup of the Quality Control Section of the Exploration Department having the strength of one Chief (Quality Control) E-VI, whereas there were four posts of Senior Geophysicist and Deputy Chief Geophysicists (Quality Control) E-IV and E-V respectively. Keeping in view the said Regulation it is not difficult to conclude that there was only one post of Chief (Quality Control) and the only person eligible to be promoted to the said position was the Deputy Chief Geophysicist. This position has been held by the appellant only and hence he was the only eligible person to have been considered for promotion against the said post unless he was otherwise not considered fit for the job. On the other hand, the said Regulations clearly provide at Serial No.99 that the post of Chief (Geophysical Processing) in the scale of E-VI was to be filled either by promotion of the Deputy Chief (Geophysical Analyst) (the post previously held by the private respondent No.3) or by the Deputy Chief (System Analyst) or the Principal (Special Processing). Hence under the Regulations the private respondent No.3 was eligible to be promoted in the Geophysical Processing Section and not in the Quality Control Unit. I cannot agree with the arguments of the learned counsel for the respondents that the said Regulations have never been implemented. Rules and Regulations are framed to be implemented and enforced.. If there was an earlier lapse or violation, the same cannot be quoted as a precedent for another one. Judicial forum cannot allow the perpetuation of violation of the Rules/Regulations.
The Regulations demonstrate the will and desire of the Executives of the Corporations and such Regulations have to be enforced rather than neglected, despite some procedural formalities to be completed. A person serving in a particular unit for almost twenty years, equipped with the professional qualifications and necessary experience, has developed a legitimate expectancy to be promoted to the higher position. Without any shortcomings on his part, such career prospects cannot be refused to him. Thus, I am of the humble opinion that the impugned order promoting the private respondent No.3 to the post of Chief (Quality Control) was violative of the said Regulations and, therefore, void. The appellant deserved to be considered for the said position. And the failure on the part of respondents Nos.1 and 2 to do so gave the appellant a cause of action and he was justified to file the present appeal.
(vi) The question of jurisdiction was not raised at the Bar due to the earlier findings of this Tribunal in other cases where the employees of the Corporation were held to be performing the functions in connection with the affairs of the Federation and, therefore, they were deemed to be civil servants.
26. As a result of the above observations I am of the humble opinion that the impugned order was violative of the Service Regulations and thus I would accept the appeal, set aside the impugned order, dated 12-1-1997 to the extent of private respondent No.3 and direct the respondents Nos.1 and 2 to consider the appellant for promotion to the post of Chief (Quality Control).
27. No order as to costs. -(Sd.) Member
28. I agree with the Order, dated 9-8-1997 proposed by learned Member Mr. Muhammad Raza Khan and allow the appeal in terms of para.26 thereof.
(Sd.) Member ORDER OF THE TRIBUNAL ' By virtue of proviso (a) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the Order of the Tribunal is that the appeal is accepted in terms of paragraph 26 of the judgment as per majority view.