' MRS. SYEDA TAHIRA SAFDAR, (MEMBER-II).---As in both the abovementioned Appeals bearing Nos.41 of 1998 and 44 of 1998 the facts are nearly the same, while matter in issue is also the same, therefore, both the appeals can be decided jointly, also to avoid any contradictory order.
2. In Appeal. No,41 of 1998 the appellant Muhammad Amjad has raised contention that he was appointed as Sub-Engineer in Directorate of Civil Works, Education Department Quetta on 9-1-1986 on regular basis. It is his contention that at said time no Services Rules for technical staff of Education Department were in existence, therefore, Service Rules of C&W Department were adopted for purpose of promotion. Thus in view of the same four Sub-Engineers namely Shahid Mahmood. Muhammad Arshad and Javed Nawab were promoted against 20% quota, while one Muhammad Qasim against 10% quota in February, 1987 and July, 1988 in B-16, afterwards promoted in B-17 on 23-11-1992. It is further his contention that as per Service Rules of C&W Department recruitment has to be made 70% by initial recruitment, 10% by promotion from degree-holders and 20% by promotion from diploma-holders. Thereafter in 1994 the Education Department framed new Rules, which maintained the same quota. Thus against the three posts reserved for diploma holders, only one diploma-holder Sub-Engineer. Namely Tauqir Abbas was promoted to the rank of Assistant Engineer, while against one post of Graduate Sub-Engineer three Graduate Sub- Engineers namely Fazal Qadir, Khaliqdad and Abdur Rahim were promoted through order, dated 20-1-1998.
3. Moreover, amendment has been made by the Government in Service Rules, whereby the quota of diploma-holders has been reduced to 17%, while remaining 3% has been reserved for Sub- Engineer having degree of B-Tech. (lions), It is further not specified in the amendment from which date the amended Rules will come into force, Rather it is likely to take retrospective effect, thereby effecting the service rights of diploma-holders,
4. Feeling aggrieved of the same he preferred review petition to the Chief Minister on 17-12-1998, but no response has .Since been received. The appellant has preferred this appeal on grounds that the impugned notification is contrary to law and facts. Further, the promotion of three Graduate Sub- Engineers is made in excess of quota reserved for them. Furthermore, three posts fall into quota of diploma-holders, while only one has been promoted as such two have been deprived of their rights. Thus the promotion of respondents Nos.3 and 4 badly effects his rights. Furthermore, the impugned amendment in Service Rules, the quota of diploma-holders Sub-Engineers has been reduced without any notice, which effects terms and conditions of his services. The appellant has prayed for setting aside of impugned amendment, declaration to the effect that promotion of respondent Nos.3 and 4 is made without legal effect, further direction to the officials respondents to place his case of promotion before Provincial Selection Board, also reverting of private respondents.
5. In reply respondent No,1 has strongly denied contention of the appellant. It is their contention that appellant was appointed on 9-1-1986 as Sub-Engineer on purely temporary basis in Improvement of Colleges Project on a non-cadre project post by the then Project Director. It is further their contention that upto 1987-88 total number of posts of Assistant Engineers were four in all, whereupon diploma-holder Engineers namely Shahid Mehmood, Muhammad Arshad and Javed Nawab were promoted. While in 1988-89 two more posts were created, while one Muhammad Qasim was posted. Furthermore, relevant Services Rules were framed on 7-8-1994 by the Department. Thus in 1996 the total number of posts of Assistant Engineers were 26 in number. Thus the posts were filled as per their respective quota. Respondent No,1 has prayed for dismissal of appeal.
6. Respondents Nos.3 and 4 in their joint reply has raised contention that the appellant had been appointed as project employee not as regular employee, as such his claim to seniority is not sustainable. Further due to the impugned amendment in Rules no change in percentage of quota of direct recruits and departmental promotees has been occurred. Furthermore, no appeal was preferred in time. It is further their contention that their promotion was properly made by Provincial Selection Board. They have prayed for dismissal of appeal being not maintainable and baseless.
7. In service Appeal No,44 of 1998, appellant Tariq Mehmood has raised nearly same plea as taken by appellant Muhammad Amjad. It is his case that he was appointed as Sub-Engineer (B-11) in Directorate of Civil Works, Education Department on 7-1-1985 on regular basis. As no separate Service Rules were existed, therefore, Service Rules of C&W Department were adopted for purpose of promotion. Whereafter four Sub-Engineers namely Shahid Mehmood, Muhammad Arshad and laved Nawab were promoted against 20% quota, while Muhammad Qasim against 10% quota, in 1987/1988 in B.16, while afterwards in B.17 from 23-11-1992. It is further his case that as per relevant Rules 70% quota is fixed for initial recruitment, 10% for promotion from degree-holder Sub-Engineers and remaining 20% by promotion from diploma-holder Sub-Engineers. This proportion of quota was maintained in new Rules framed by the Department in 1994. Thus against three posts reserved for diploma-holder Sub-Engineers, only Tauqir Abbas has been promoted as Assistant Engineer (B- 17), while against one post of Graduate Sub-Engineer, three graduate Sub-Engineers Fazal Qadir, Khaliqdad and Abdul Rahim were promoted through notification dated 20-1-1998. Furthermore, the Government has made amendment in Service Rules, whereby the quota fixed for diploma-holders has been reduced to 17% from 20% while 3% is reserved for Sub-Engineers having degree of B-Tech (Hons). No date of its implementation is mentioned in the same from which the amendment shall come into force. In case it has retrospective effect, this will effect his right. Thus feeling aggrieved of the same he preferred appeal on 18-2-1998, but uptill now no reply has been given.
8. The appellant has preferred present appeal with prayer that the promotion of respondents Nos.3 and 4 be declared without legal effect, direction be issued to the Department to place his case for promotion before the Provincial Selection Board for consideration, while respondents Nos.3 and 4 be reverted. Also set aside the impugned notification. The grounds raised by the appellant are that the impugned notification is contrary to law and facts. The promotions are made in clear violation of prescribed quota, thus the impugned notification is in violation of law, and also effect his rights.
Further, the amendment is made without any notice.
9. Respondent No,1 in reply has denied contention of the appellant. According to him the appellant was appointed on work charge basis in the Improvement of Colleges Project on non-cadre post for a period of six months. Further, upto 1987-88 total number of post of Assistant Engineers were flour in all. Thus three diploma-holder Sub-Engineers namely Shahid Mehmood, Muhammad Arshad and Javed Nawab were promoted against these posts. While in 1988-89 two posts of Assistant Engineers were created Whereupon' one Muhammad Qasim was promoted. He has denied the calculation made by the appellant. According to him the degree-holder Sub- Engineers were promoted as per their reserved quota. He has prayed for dismissal of the appeal.
10. While in their joint reply respondents Nos.3 and 4 have strongly contested the case of the appellant. It is their contention that their case for promotion was cleared by the Provincial Selection Board, which has exclusive jurisdiction in said respect. Further, the appellant was appointed on a Project post on temporary basis. Furthermore, the appellant has failed to prefer appeal in time against the impugned notification. They have prayed for dismissal of appeal being baseless and without merits.
11. In present case both the appellants claimed themselves to be regular appointees as Sub- Engineers diploma-holder. Further asserted that there is clear violation of quota reserved for different categories of Sub-Engineers. According to them out of four vacancies, three have to be filled from Sub-Engineers. But in violation of quota reserved, three degree-holders, were promoted, while only one diploma-holder Sub-Engineer is promoted. In reply all the official and private respondents denied their (appellants) appointment on being regular basis. According to them the appellants were appointed on Project posts. On temporary basis. The appointment orders of both the appellants have been placed on record by respondents Nos.3 and 4. The perusal of the same reveals that both the orders are issued by Project Director, while the appellants appointments are made in respect of Improvement of Colleges Project. Though the official respondent also raised same contention. But no further plea or document has been placed on record. There is nothing on record that on what date or through what order the services of the appellants were regularized and in what capacity they are working uptill now. The appellants names are included in tentative seniority list of Sub-Engineers diploma-holders issued on 27-5-1997. Thus it shall be presumed that the services of the appellants were regularized, until and unless some contrary fact or document come on record.
12. Apart from the same, as the seniority of the appellants is not matter in issue in present case, rather violation of reserved quota for promotion meant for different category of Sub-Engineers has been alleged, which required consideration. According to the appellants three post reserved fall to the quota of promotion for the diploma-holders, but only one has been promoted, while one post fall to the share of Graduate Sub-Engineer, but three of them have been promoted in violation of Rules. While as per respondent No,1 number of posts were 26 while 22 posts were already filled up and 4 posts were required be tilled. Out of the same three posts fall to the quota for degree-holder Sub-Engineers, while one post fall to the share/quota of diploma-holder Sub-Engineer. As such no degree-holder Sub Engineer was promoted in spite of their availability since 1992, therefore, in 1996 three of them were promoted as per their quota. While one diploma holder was promoted as four of them were already promoted, therefore, no post at present is left which comes within the preview of reserved quota meant for diploma-holder Sub-Engineers. Respondents Nos.3 and 4 also supported the contention of officials respondent i,e, No, 1 .
13. As per relevant Rules of 1991, applicable in cases of appellants and respondents Nos.3 and 4, post of Assistant Engineer (B.17) is required to be filled in proportion of 70% by initial recruitment, 10% by promotion amongst Sub-Engineers holding degree in Engineering, while remaining 20% by promotion amongst Sub-Engineers having Diploma. From material on record it is an admitted position that the total strength of sanctioned posts of Assistant Engineer is 26 in all. Created from time to time. Keeping in view the same 18 posts come within the share of 70% quota meant for direct recruits, 3 posts come within the share of 10% quota meant for promotion from degree- holder Sub-Engineers and 5 posts come within the share of 20% quota meant for diploma-holders Sub-Engineers. The appellants have not made correct calculation in same respondent. Thus keeping in view the respective proportion it is apparent from pleadings of the parties that four diploma-holder Sub-Engineers namely Shahid Mahmood,. Muhammad Arshad, Javed Nawab and Muhammad Qasim were appointed/promoted as such in 1987-88. There is no dispute to said extent between the parties. While the only difference is to the extent of said Muhammad Qasim, who was also allegedly promoted in 1988, as per appellants was promoted in respect of quota of 10% as no Graduate Sub-Engineer was available at relevant time. This assertion of the appellants is not admitted by official respondent. According to them in 1988-89 two more posts of Assistant Engineers were created,' while said Muhammad Qasim was promoted against one of the same.
The appellants have filed no document to establish their respective contention. From assertions made by the parties it is some how or the other an established fact that abovementioned four persons are diploma-holder Sub-Engineers, while promoted on posts come to the share of diploma-holders. Nothing has come on record that except those degree holder Sub-Engineers promoted through impugned Notification dated 20-1-1998, including respondents Nos.3 and 4, any other decree-holder Sub-Engineer has been promoted in all these years. It is the appellants who have to establish the alleged violation on the respective quota of different category, but they have failed to do so. No violation of Rules is established in same respect.
14. As far as amendment made in appendix of service Rules of 1994 through Notification dated 23- 8-1997 is concerned, whereby quota of promotion meant for diploma-holder Sub-Engineers has been reduced from 20% to 17% and 3% falls to the share of Sub-Engineers having degree of B-Tech (Hons). Though the appellants fell aggrieved of the same, but as per their Own showings they have not approached the Departmental Authorities at relevant time, rather after lapse of nearly one year, from issuance of the same, they raised objection and questioned its maintainability before this Tribunal directly. To this extent their appeal is not maintainable as before exhausting the departmental remedy available to them they cannot approach this Tribunal on first instance.
Furthermore, it is to be noted that the phrase "with retrospective effect" has not been used in impugned amendment. Thus in absence of the same, the same cannot be used retrospectively.
The apprehension of the appellants in same respect is not based on sound reasons.
15. In view of above discussion, the appellants have completely failed to establish their case. No illegality shown in impugned notifications. Even no violation of Rules in respect of quota meant for different categories of Sub-Engineers is shown nor established, while to the extent of impugned amendment, as the appeal is filed without availing departmental remedy, thus not maintainable.
Thus, the appeal being without merits liable to be dismissed. The appeal is hereby dismissed being baseless and not maintainable. Parties are left to bear their own costs. File after completion be consigned to record.