' RANA BHAGWANDAS, J.---This appeal with the leave of this Court is directed against judgment dated 11-7-1996 of the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal), dismissing appellant's Service Appeal impugning his supersession in the matter of promotion to B- 17 and promotion of respondents Nos.2 to 13 in violation of law and the Service Rules applicable to his cadre of service.
2. Appellant was serving as Supervisor/Inspector in the National Highway Authority on work charge basis since 17-8-1988. His services, alongwith other employees of the Authority, were regularised with effect from 9-3-1995 in terms of sub-rule (2) of Rule 20 of the National Highway Authority Service Rules, 1995 (hereinafter referred as Service Rules, 1995). It is the case of the appellant that respondents Nos.2 to 6 and 8 to 13 were also regularised in service through the same order.
Respondents No,10 to 12 were working as Supervisors but their cadre of service was distinct and not interchangeable, whereas respondent No,13 was ineligible for induction as Supervisor/Inspector for not possessing the prescribed qualification of three years diploma in Civil Engineering from an Institute recognised by the Board of Technical Education. It is his grievance that name of respondent No,7 did not appear in the office order of regularisation as well as the seniority list. With regard to respondents Nos.2 to 6, it is claimed that they were junior to the appellant as per Provisional Seniority List dated 21-5-1995. Appellant asserted that respondent No,1 mainained a combined seniority list of Supervisors/Inspectors comprising of Graduate Engineers as well as Diploma holders in Civil Engineering for the purpose of promotion to the office of Assistant Director (Engineering). It is the grievance of the appellant that promotion to various posts in the respondent Authority though required to be made on the basis of seniority-cum-fitness, respondent No,1, without any legal justification issued four office orders bearing No,11(8)- Admn.(P)NHA/95, dated 14-11-1995, Making promotions of 27 Supervisors to the posts of Assistant Director (Engineering) and Assistant Director (Quantity Surveyor) on regular basis and of respondent No,13 on acting charge basis with effect from 30-10-1995 in disregard of seniority and fitness and without declaring any promotion policy. According to him, he was not considered for promotion while respondents Nos.1 to 7, being junior to him and respondents Nos.10 to 13 being outside the cadre were promoted to the higher post. Appellant preferred departmental appeal against his supersession in the matter of promotion, which was rejected. He, therefore, made a Service Appeal under section 4 of the Service Tribunals Act, 1973 before the Tribunal, impugning office orders dated 14-11-1995 promoting the respondents as illegal and without any lawful authority. He prayed for a declaration that he was entitled to be considered for promotion from the date his juniors were promoted to the higher posts with consequential benefits including seniority in the higher cadre.
3. Respondent-Authority contested the appeal and in its comments averred that there were 34 posts available in B-17, one post of Statistical Investigator and one post of Assistant Director (Quantity Surveyor). It was said that as per National Highway Authority's (Appointment and Promotion) Rules 1995 (hereinafter referred as Promotion Rules 1995) Schedule-1 100% technical posts in B-17 were required to be filled by direct recruitment whereas Schedule-III prescribes the length of service for promotion from B-16 to B-17 for a Diploma holders as ten years in B-16 and for a Graduate Engineer only one year. However, according to Government instructions 20% posts in B- 17 were reserved for promotion of Diploma holders without amending the relevant Rules. It was claimed that appellant's case was considered alongwith others for promotion but he was not promoted as he did not qualify ten years regular service in B-16. It was averred that respondents Nos.10 to 12 were Graduate Engineers. Respondent added that the persons promoted to B-17 were Graduate Engineers and their promotions were not ordered against 20% quota reserved for promotion of Diploma holders.
4. We have heard M/s. Habibul Wahad Al-Khairi and K.M.A. Samdani, learned Advocate Supreme Courts for the parties and examined the record.
5. There is no cavil with the position that services of the appellant as well as large number of employees, including the respondents, employed in respondent-Authority on work charge basis were regularised with effect from 9-3-1995 vide office order, dated 25-4-1995 as a "One time" exercise under the provisions of Rule 20(2) of the Service Rules, 1995, which reads as under:-- ' "Rule 20(2) The erstwhile Workcharge Employees of the Authority serving in the project shall be inducted in the Authority as a "One Time" exercise after they are cleared by the Selection Committees duly appointed by the competent Authority. They shall be inducted from the date of Notification of these rules. However, their service as workcharge Employee will count towards qualifying service for consideration for promotion and for pay and pension."
6. It may be observed that consequent upon induction of the appellant and his colleagues in regular service of the respondent-Authority, their service as workcharge employees will count towards qualifying service for consideration for promotion and for pay and pension. It would, however, not count for the purpose of seniority, as misunderstood by the appellant. It was A so held by this Court in Civil Appeal Nos.1237 to 1253, 1255 to 1257, 1333 and 1338 of 1999 decided on 14-9- 2001. It is undisputed that respondents Nos.2 to 12, though regularised alongwith the appellant, are Graduate Engineers, possessing the degree of B.Sc (Civil) whereas the appellant possesses a Diploma in Civil Engineering from a recognised Institute. Schedule-III to Service Rules 1995 at serial No,4 prescribes condition of eligibility as ten years service for diploma holders for promotion from B-16 to B-17, while for B.Sc. (Engineering), it is one year. It may be observed that on the date of promotion of the respondents, appellant had served for less than seven years in the respondent- Authority and was, therefore, not eligible for promotion to B-17 as wrongly asserted. Learned counsel for the appellant, however, contended that unlike respondents Nos.2 to 12, respondent No,13 i.e, Mushtaq Ahmad was also ineligible for promotion to B-17 but, by virtue of recommendations of the. Departmental Selection Committee, he was promoted as Assistant Director (Quantity Surveyor) on acting charge basis. Learned counsel referred to the recommendations of the Selection Committee dated 30-10-1995 and seriously criticised the promotion of this respondent, even on acting charge basis in terms of Rule 11 of Promotion Rules, 1995. Admittedly, respondent No,13 possessed a certificate in civil estimation but did not hold the disploma in Civil Engineering, which is the prescribed minimum qualification for induction as Supervisor/Inspector in the respondent-Authority. In this behalf reference may be made to Rules 8 to 11, of Promotion Rules 1995 which reads as follows:-- CHAPTER II APPOINTMENT BY PROMOTION.
"(8) Promotions to posts under the Authority shall be made on the recommendations of the respective Selection Committee.
(9) Only such persons who possess the qualifications and meet the conditions laid down in Schedule-IV shall be considered by the respective Selection Committee for initial appointments and only such persons who meet the requirements laid down in Schedule-III shall be considered for promotion by the respective Selection Committee.
(10) No promotion shall be made to posts unless the employee concerned has completed such minimum length of service as specified in Schedule III (11)(1)Where the appointing Authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior officer/officials belonging to the cadre as given in Schedule-IV who is otherwise eligible for promotion does not possess the specified length of service as given in Schedule III, the Authority may appoint him to that post on acting charge basis.
(2) S. Long as a officer/official holds the acting charge appointment person junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post.
(3) In the case of a post in Basic Pay Scale 17 to 20 and equivalemt, reserved under the rules to be filled by initial appointment where the Appointing Authority is satisfied that no suitable officer drawing pay in basic pay scale in which the post exists is available in that category and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer/officials otherwise eligible for promotion in cadre in excess of the promotion quota.
(4) Acting charge appointment may be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.
(5) Appointment on acting charge basis shall be made on the recommendations of the Selection Committee.
(6) Acting charge appointment shall not mean an appointment by promotion on regular basis for any purpose including seniority.
(7) Acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis.
(8) Appoinmtent by transfer shall be made from amongest the person holding appointment on a regular basis on a post in the same basic pay scale or equivalent to or identical with the posts to be filled and possessing the qualifications and experience prescribed for the post."
7. Although respondent No,13 has been proceeded against ex-parte, he was present in person and he frankly conceded that he did not possess a Diploma in Civil Engineering though he claimed that he had long experience in the field of civil estimation at his credit and has qualified a course of study in the field of Civil Estimation. Be that as it may, since the prescribed qualification for eligibility to promotion is Diploma in Civil Engineering from a recognised Institute with ten years' service experience and as the said respondent did not possess the requisite qualification, therefore, he was wrongly promoted by the respondent-Authority. No doubt, Departmental Selection Committee is vested with discretion and the respondent-Authority may be competent to promote a person on acting charge basis by relaxing the prescribed length of service, but there is no discretion with the Authority to dispense with or to relax the prescribed academic qualifications. We, therefore, hold that promotion of respondent No,13 and his appointment as Assistant Director (Quantity Surveyor) in B-17 on acting charge basis, in preference to the appellant and his colleagues cannot be countenanced. Mr. K.M.A. Samdani, learned Advocate Supreme Court for the respondent No,1 was not in.a position to defend the respondent-Authority's act of promoting this respondent, ignoring the appellant and twenty other Supervisors/Inspectors but he raised a legal plea that since by now the appellant and his colleagues have completed ten years of service, they would be considered for regular promotion alongwith respondent No,13 in due course and the matter be left for consideration of the respondent-Authority. He also relied upon section 4(1)(b) of the Service Tribunals Act, 1973, laying down that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. There can be no cavil with the proposition of law canvassed at the Bar but strictly speaking, the appellant is asking for the enforcement of his legal right on the ground that he was ignored although eligible while other respondents, who were ineligible, were promoted. The issue has been set at rest in a number of cases and in that behalf we may refer to Abdul Malik v. Sabir Zameer Siddiqui (1991 SCM R 1129), Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539) and Z.A. Javed Raja Administrative Officer v.
Secretary Establishment Division (1996 SCM R 329). Learned counsel relied upon Government of N.- W.F.P., Health and Social Welfare Department v. Muzaffar Iqbal (1990 SCM R 1321) but in our view the said precedent is hardly attracted to the circumstances of the appellant's case. We do not think that the appeal preferred by appellant was incompetent or barred by law. Prima facie, since the appellant was equally eligible for consideration for promotion to B-17 on acting charge basis, we allow his appeal to the extent of respondent No,13, whose promotion on acting charge basis in B-17 is declared to be without lawful authority and of no legal effect. Respondent-Authority is directed to process the promotion cases of Diploma holders against available vacancies as early as possible.
Appeal as gainst the remaining respondents, however, stands dismissed as admittedly they are Graduate Engineers with more than one year service and eligible for promotion. We make no order as to costs.