' CH. MUHAMMAD ARIF, J.---Appellants-Muhammad Musadaq Kh., Assistant Executive Engineer-AEE for short and 14 others felt aggrieved of judgment dated 19-3-1995 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, whereby the promotion of respondent No,1-Muhammad Akram Khan Rao as Assistant Executive Engineer (B-17) made on 24-5-1992 was ordered to be antedated with effect from 11-10- 1994 and obtained leave to appeal there against from this Court on 22-11-1995. We can't do better than reproduce paras.2 to 6 of the leave granting order dated 22-11-1995 which read thus: "2. The brief facts giving rise to the institution of this petition are that the petitioners and respondent No,1 Muhammad Akram Khan Rao, are Engineers in the service of Pak PWD under the Works Division to the Government of Pakistan. The engineering services are bifurcated into three categories: Class I, Class II and Class III. Class. I service is governed by the Rules dated 30-8-1951 and were replaced on 11-10-1984 and were again amended on 12-5-1988 and 25-7-1991. These rules covered all posts from B-17 to 21. Class II, Central Engineering Services were governed by Rules dated 15-8-1955 and as far as Engineering Services Class III are concerned they were governed by the Rules dated 26-8-1955 as amended on 16-11-1974 and again amended vide Notification, dated 28th August, 1984.
' "Recruitment to the Engineering Service Class I i.e, Assistant Executive Engineer now in B-17 takes place from amongst the Graduate Engineers through competitive examination conducted by the Federal Public Service Commission. Quota was also reserved in the Central Engineering Service Class I, through promotion to the post of Assistant Executive Engineer from amongst the Assistant Engineers (B-16).
"3 Direct appointment to the Central Engineering Service Class II (B-16) was partly made by appointment of Graduate Engineers through Public Service Commission and partly from amongst the holders of post in Engineering Service Class III which included Overseer and Sub-Engineers (B-11). The promotion was subject to the passing of the departmental examination.
"4 Appointment to the post in Class III Engineering Services of Overseer/Sub-Engineer B-11 was made from amongst the Diploma Holders. Their initial recruitment was in a lower scale but subsequently vide the policy of the Government as laid down on 16th of November, 1974, the Diploma Holder Engineers were placed in B-11 and 25% of them were made eligible for appointment in B-16 as Sub-Engineers subject to their passing of departmental examination with ten years' service. The Government of Pakistan vide Notification dated 17-5- 1971 granted Class I status to all-graduate engineers who were serving as Assistant Engineers in Class II, thus, all graduate engineers who were Assistant Engineers were placed in cadre of Assistant Executive Engineers Class-I (B-17). At one point of time, the direct appointment to Class II, service of the Assistant Engineers was stopped and leaving it to be manned by the diploma holders who had been promoted earlier as Assistant Engineers (B-16). Respondent Rao Muhammad Akram Khan, a non-graduate diploma holder serving as Overseer in B-11 was promoted as Sub-Engineer (B-16) with effect from 29-12-1983, although, allegedly he had not passed the departmental examination which was a necessary condition for promotion. This examination was required to be passed within a period of three years and an incumbent could avail five chances to take such examination. Respondent Rao Muhammad Akrarn Khan, although basically ineligible to be promoted in B-16, on account of failure to qualify the departmental examination, was promoted to the post of Assistant Executive Engineer B-17 vide order dated 24-5-1992. Respondent No,1 after having been promoted made a representation that he should have been promoted as Assistant Executive Engineer with effect from October, 1984, when the Engineering Services Rules pertaining to B-17 were promulgated on 11-10-1984 and he should be placed senior to the petitioner and respondents 4 to 81 who were graduate engineers and had been directly recruited through Federal Public Service Commission. Hearing no reply, respondent No,1 sent a reminder on 24-1-1993 in continuation of his representation dated 23-6-1992. The representation and its reminder were not sent to the competent Authority and it is alleged that the respondent manoeuvred to obtain a reply from the Works Division on 10-7-1994 to the effect that his representation had been rejected.
' Respondent No,1 Rao Muhammad Akram Khan thus invoked the jurisdiction of the Federal Service Tribunal praying that his promotion be antedated with effect from October, 1984 and be placed senior to the petitioner and respondents 4 to 81. The Federal Service Tribunal vide judgment impugned accepted the appeal.
"5. In support of this petition seeking leave to appeal, it is vehemently contended that the appeal before the Service Tribunal was barred by time and this aspect of the case went unnoticed by the Tribunal. It is alleged that the representation was made on 23-6-1992 and if the same is not decided within 90 days, the respondent gets another 30 days for approaching the Service Tribunal and in case such representation is decided, then he could approach the Tribunal within 30 days of the decision. It is alleged that representation made on 23-6-1992 remained undecided for more than 120 days and the respondent did not invoke the jurisdiction of the Service Tribunal in time and manoeuvred to get reply on 10-7-1994 about the rejection of his departmental representation and such rejection according to the learned counsel for the petitioner, would not enlarge the time for filing the appeal. It is further contended that since the initial promotion on account of the failure of the respondent to qualify the departmental examination was violative of the Rules, therefore, he was not eligible to be considered for further promotion in B-17.
"7. The crucial question revolves around the interpretation of Service Rules which were enforced on 1 1 th of October, 1984. Under these Rules, no scope was left for the promotion of Assistant Engineer B-16 to the post of Assistant Executive Engineer B-17. On 12-5-1988, the Rules were amended and the promotion of Assistant Engineers as well as Sub-Engineers B-16 was allowed subject to the condition of passing of prescribed departmental examination. It is obvious that if the Rules had not been amended respondent No,1 could not have been eligible for promotion in B-17 as Assistant Executive Engineer. Since the Rules framed on 11th of October, 1984 did not provide for the promotion of Assistant Engineer in B-16 to the post of Assistant Executive Engineer. In B-17, it cannot be held that it was (an) omission as concluded by the Federal Service Tribunal. The amendment made in the Rules on 12-5-1988 contained provision for such promotion and thus, prima facie, their enforcement would be considered prospectively from that date and not retrospectively with effect from 11-10- 1984. We have also noticed that even the effect of quota system was also not considered by the Federal Service Tribunal.
"After hearing the learned counsel at length and having ,gone through the impugned judgment, we are of the view that the matter requires further consideration, therefore, leave to appeal is granted."
2. Mr. Shah Abdur Rashid, learned Advocate Supreme Court appearing in support of this appeal has pointed out some typographical mistakes in the dates mentioned in the above-quoted excerpts on the leave granting order dated 22-11-1995 in relation to Central Engineering Services Class I Rules dated 30-8-1951 replaced on 11-10- 1984 again amended on 12-5-1988 and 25-7-1991 to contend that the Tribunal was in error in not deciding the question raised before it that Appeal No,345(R) of 1994 was barred by time. Respondent No,1 had claimed promotion to the post of Assistant Executive Engineer on the basis of the rule published in Gazette Notification dated 11-10-1994 from the said date. He made his departmental representation on 23-6-1992 after having been promoted as Assistant Engineer, now in B-17, with effect from 24-5-1992. The departmental representation itself was barred by time. It is contended with some vehemence that on a true interpretation of section 22 of Civil Servants Act, 1973, hereinafter referred to as the Act, read with section 4 of the Service Tribunals Act, 1973, an aggrieved person can make a departmental representation within 30 days of the order from which he is aggrieved. In the event of the failure on the part of the Departmental Authorities to decide the representation within 90 days, the concerned civil servant gets additional 30-days for approaching the Tribunal. However, if the departmental representation is decided then the Tribunal can be approached by the concerned civil servant within 30 days of such decision. In this case, the departmental representation remained undecided for more than 120 days and the result is that approach to the Tribunal was not within time. The pleadings of respondent No,1 that he got a reply to his departmental representation from the Works Division on 10-7-1994 that his representation has been rejected, is of little help to him in that; (i) the said order was of the seeking of respondent No,1 himself and (ii) it was not made by the Competent Authority i.e, 'Prime Minister' because, admittedly, his Appointing Authority was the Secretary Establishment. As order dated 10-7-1994 had not been made by the Competent Authority, the same was incapable of providing the period of 30-days from 10-7-1994, as alleged. He was also of the view that as no reply had been received by respondent No,1 from the Competent Authority and as he did not resort to the remedy of appeal before the Tribunal within '120 days from 23-6-1992, therefore, Appeal No,345(R) of 1994 filed .On 8-8-1994, was thus heavily barred by time.
3. Learned counsel next referred to Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) and contended that promotion of respondents Nos.1 to B-16 was illegal in that under the provisions of Office Memo. Dated 16-11-1974 which have the force of a rule, he was required to pass the prescribed departmental examination before being promoted to B-16 and as he had not passed the prescribed departmental examination, consequently his promotion to B-16 cannot be sustained. He cannot be promoted as Assistant Executive Engineer (B-17) as his promotion to B-16 was not warranted by law.
Likewise, under Gazette notification dated 18-3-1979, a Sub-Engineer in B-11, was required to pass the departmental examination within 3 years and 5 chances. On the failure of respondent No,1 to pass the departmental examination, he ceased to be in service with the result that he cannot claim seniority or promotion to B-17 from any date. Even for the promotion to Central Engineering Service Class II i.e, B-16, respondent No,1, in the light of the notification dated 15-8-1955, was required to pass departmental examination within 3 years and 5 chances as provided in para. (2) of Appendix V to the said notification which specifically lays down that failure to pass the examination renders the person concerned ineligible for holding the post in service.
According to the learned counsel, the Tribunal has erred in holding that respondent No,1 had to suffer for the omission appearing in the rules gazetted on 11-10-1984 inadvertently omitted to provide for promotion of Assistant Engineers, B-16 to the post of Assistant Executive Engineer, B-17. This omission was supplied by notification dated 12-5-1988 whereby the Assistant Engineers as well as Sub-Engineers, B-16 were made eligible for promotion to the post of Assistant Executive Engineer on passing the prescribed departmental examination. Had the correction not been made on 12-5-1988, then respondent No,1 would not have been eligible for promotion to the post of Assistant Executive Engineer B-17, since the rules dated 11-10-1984 did not provide for promotion of Assistant Engineer to the post of Assistant Executive Engineer.
4. Learned counsel concluded his arguments by criticizing the failure on the part of the Tribunal to appreciate that those diploma holders who are Sub-Engineers or Assistant Engineers in B-16 can be promoted as Assistant Executive Engineer to the extent of their quota of 20% only and the remaining 80% of posts are required to be filled by direct appointment as provided in para. 2 of notification dated 11-10-1984 as also clause (iv) of 1st para. Of Office Memo. Dated 16-11-1974. The precise plea was that without determining the quota of direct recruits in the cadre of. Assistant Executive Engineers, no regular promotion could be made in excess of the said quota. The impugned order of the Tribunal allowing the promotion of respondent No,1 from back date, has the effect of illegally increasing the quota of promotees which cannot be countenanced in law.
5. The private-respondents as well as the official-respondents in this cause have been proceeded against ex parte.
6. We have considered the arguments addressed at the bar and perused the available material. We find force in the contention of Mr. Shah Abdur Rashid that Appeal No,345(R) of 1994 was beyond time and the Tribunal was in error in holding that after the alleged rejection of his representation by the respondent vide O.M. Dated 10-7- 1994. (reference is to the Secretary Works Division, Islamabad) the appeal was within time, .Without noticing that (i) neither the Secretary, Works Division was the competent Authority in case or respondent-Muhammad Akram Khan Rao, (ii) nor he could link the above Office Memo. Dated 10-7-1994 to his memo. Of appeal before the Tribunal to mitigate the rigorous of the law of limitation in that behalf and (iii) that the departmental representation made on 25-5-1992 remained undecided for more than the amalgam of the above periods of 90 days and 30 days i.e, 120 days.
7. We are further inclined to agree with the learned counsel that the effect of the rules requiring respondent No,1 to pass departmental examination for promotion as Assistant Engineer B-16 and Assistant Executive Engineer B-17 was not brought to bear upon the case of the parties before the Tribunal and that too without taking into consideration the failure on the part of respondent No,1 to pass the departmental examinations respectively in accordance with the provisions of (i) Officer Memo. Dated 16-11-1974, (ii) Gazette Notification dated 18-3-1979 and (iii) Notification dated 15-8-1955.
8. We find force in the contention of the learned counsel that the Tribunal did not consider even the plea raised on behalf of the appellants that the case of respondent-Muhammad Akram Khan Rao clearly falls within the contemplation of rule 21 of the Central Engineering Service Class I Recruitment Rules, 1951 (as amended) which reads thus: "21. Up to 33-1/3% of vacancies in the Service may be filled by promotion from amongst Assistant Engineers in the Central Engineering Service, Class H, in consultation with the Commission. No officer of the Central Engineering Service, Class II, shall have any claim to such promotion as of right. Such promotions shall normally be made to posts of Assistant executive Engineers but, if officers with the requisite seniority are not available in the service for appointment as Executive Engineers, Government may fill posts of Executive Engineer by appointment of persons from amongst Assistant Engineers in the Central Engineering Service, Class II, after consultation with the Commission. No Officer of the Central Engineering Service, Class II, of less than three years' service shall, however, be considered for promotion under this rule."
' Before concluding we may observe that soon after uttering just a sentence that rule 21 (ibid) could not have retrospective effect, the learned counsel hastened to add that as the Rules are beneficial to the employees, therefore, he has decided not to press this limb of the arguments any further.
10. For all that has gone before, the instant appeal is allowed, impugned judgment dated 19-3-1995 of the Federal Service Tribunal is set aside and the case is remitted to the Tribunal to hear the parties on the questions of (i)limitation.;(ii)..The applicability or otherwise of the passing of the departmental examinations by respondent- Muhammad Akram Khan Rao for promotion as Assistant Engineer (B-16) and Assistant Executive Engineer (B- 17) and in the event of finding that he did not qualify in the departmental examinations within 3 years and 5- chances, the allied question whether any case is made out for granting him antedated promotion with effect from 11-10-1984 and (iii) falling or otherwise of the case of respondent No,1 within the contemplation of promotion quota in terms of rule 21 (ibid) and if so, from what date ..As expeditiously as possible but not latter than 3-months from the receipt of a copy of this order under intimation to the Registrar of this Court. Costs to follow the event.