MUHAMMAD MUSHTAQ Versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD

ZIA MAHMOOD MIRZA, J.--- Captioned two petitions seek leave to appeal against a common judgment of the federal Service Tribunal dated 5-9-1995 which disposed of as many as five connected appeals including the two appeals of the petitioners herein.

2. Facts forming the background of these petitions are as follows:--

Petitioners and the respondents in the two petitions, it appears, were directly recruited as Assistant Executive Engineers (B.P.S-17) through Competitive Examination. Rules prescribing method of appointment, qualifications and conditions for promotion made in pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provided that an Assistant Executive Engineer shall be eligible for promotion to the post of Executive Engineer (BPS-18) if he had put in five years' service in BPS-17 and "person initially appointed to BPS-17 must have passed the prescribed Departmental Examination"., Provision for passing departmental examination was made in rule 7 which reads as follows:--

"The persons recruited direct shall be required to pass the prescribed departmental examination within the maximum period of 4 years of their joining the service with maximum of 5 chances. Failure to do so shall render the person concerned ineligible for holding the post in the service."

The aforequoted Rule was deleted vide Notification No.SRO-758(1)/89, dated 22-7-1989 though the condition for passing the Departmental Examination for promotion to the post of Executive Engineer was allowed to continue. On deletion of the said Rule, respondents Nos.4 to 21 in C.P. 622/95 who had not passed the departmental examination in 4 years and 5 chances were promoted as Executive Engineers.

3. Shahid Hussain petitioner and two other Assistant Executive Engineers who had passed the Departmental Examination in accordance with the requirement of Rule 7 before its deletion and had also completed 5 years' service as Assistant Executive Engineers challenged the promotion of respondents Nps.4 to 21 in three separate appeals contending that the said respondents had not passed the examination within 4 years and 5 chances while they (the then appellants) had duly qualified the examination within 4 years and in less than 5 chances and were, therefore, entitled to be promoted in preference to the said respondents. During the pendency of the appeals, the department informed the Service Tribunal that a High Powered Committee had been constituted to examine the entire issue. The appeals were accordingly disposed of with the observation that if any of the parties felt aggrieved of the decision of the committee, they would be at liberty to again approach the Tribunal to seek justice.

4. The High Powered Committee in its meeting held on 11-4-1993 decided that the Assistant Executive Engineers who had passed the departmental examination in 5 chances or less (irrespective of the time taken) should have been promoted to B.P.S-18 in preference to those who had passed the said examination in more than 5 chances and that on promotion to B.P.S-18, all the Assistant Executive Engineers who had passed the departmental examination in 5 chances or less will rank senior over those who had qualified the said examination in more than 5 chances including those already promoted to B.P.S 18. It was also recommended by the Committee that a summary may be moved for seeking approval of the Prime Minister for retention in service of the directly recruited Assistant Executive Engineers who had passed the departmental examination in more than 5 chances. The summary was to include the names of those Assistant Executive Engineers who had already been promoted as Executive Engineers. In short, the recommendation of the Committee was that out of the Executive Engineers and Assistant Executive Engineers those who had passed the departmental examination within 5 chances should be promoted in preference to those who had passed the examination the more than 5 chances and that the unqualified Executive Engineers and Asststa0t Executive Engineers should be placed junior to all those who had duly qualified the examination, Recommendations of Committee were accepted by the Government and 23 Assistant Executive Engineers including respondents Nds.22 to 39 (in C.P. 622/1995) who had passed the departmental examination i,i 5 chances though not within 4 years were promoted to the post of Executive Engineers vide Notification dated 30-8-1994 and respondents Nos.4 to 21 who had been earlier promoted on deletion of Rule 7 despite their failure to pass the examination in 5 chances or 41years were retained as Executive Engineers.

5. Petitioners in these petitions who had statedly passed the departmental examination in terms of rule 7 before its deletion felt aggrieved of the afore noted recommendations of the High Powered Committee and the action taken and the orders passed in pursuance thereof. They, therefore, filed three separate appeals to challenge the order dated 30-8-1994, promoting respondents Nos.22 to 39 (in C.P. 622/1995) contending that the said respondents having passed the departmental examination in five chances but not within four years were not entitled to be promoted. The petitioners also assailed the validity of the action of the departmental authority in allowing respondents Nos.4 to 21 (in C.P. 622/1995) to continue in service even though they had not passed the departmental examination either in four years or in five chances. The grievance made by the petitioners was that they had a preferential right to be promoted as Executive Engineers before the respondents or at least on the date respondent No.4 was promoted but they were not even considered for promotion. According to the petitioners, all those officers who had not passed the departmental examination in five chances and in the specified period of four years should have either been ousted from service or reverted to the posts of Assistant Executive Engineers or placed junior to the petitioners. An objection was also taken in all the three appeals that it was incorrectly stated in the minutes of the Committee that there were 24 Assistant Executive Engineers who had passed the departmental examination in five chances. It was pointed out by the petitioners that the ' total number of such persons including the petitioners was 38. Voicing these grievances, Muhammad Mushtaq petitioner in C.P. 622/1995 claimed the following reliefs in his Service Appeal No.50/R/1995:--

"(1) that 18 X.E.Ns i.e. respondents Nos.4 to 21 who did not pass the departmental examination in 5 chances be reverted and as per para. 7 their retention in service be also considered;

(2) that it be declared that the beneficiaries of para. 7 i.e. those who passed the departmental examination in 5 chances are 38 and not 24, the benefit extending not only to those A.E.Es recruited under 1951 Rules but also to those recruited under 1984 Rules;

(3) that it be declared that the appellant and others likewise situated who passed the examination in 4 years and 5 chances deserve to be considered for promotion immediately in preference to respondents 4 to 21 and on promotion as X.E.N. will rank senior to respondents 22 to 39. "

While Shahid Hussain and Nazir Ahmed petitioners in C.P. 623/1995 made the following identical prayer in their Appeals Nos.35/R/1995 and 36/R/1995:--

"In view of the facts and circumstances stated above, it is respectfully submitted that this Hon'ble Tribunal may call for the record of the case and after examining the record and the position of the rules direct that the appellant be considered for promotion to the post of Executive Engineers, BPS-18 in preference to respondents Nos.5 to 40, and if approved be given promotion from the date respondent No.5 was promoted. Further, it may be declared that on promotion the appellant shall stand senior to respondents Nos.5 to 40, Consequential benefits of promotion may also be ordered to be given. No relief is claimed against respondents Nos.41 to 45 who have been impleaded pro forma."

6. Federal Service Tribunal took up the petitioners' appeals together with two other appeals filed by Hidayatullah and Khalid Qureshi (not parties in these petitions) and disposed of all the appeals by a common judgment dated 3-9-1995 holding qua the grievance of the present petitioners against the promotion of respondents Nos.22 to 39 that "the Department did not provide them five chances within four years and, therefore, the condition of four years stood waived. There is substance in the decision of the High Powered Committee because when certain thing is impossible to do, the doing of that is exempted. We are, therefore, not inclined to accept the contention of these three appellants that they have a preferential right over those Assistant Executive Engineers who passed the examination though in five chances but not within four years". The claim of the petitioners for promotion in preference to 18 Executive Engineers viz. respondents Nos.4 to 21 who were promoted as Executive Engineers although they had not passed departmental examination in five chances was, however, accepted by the Tribunal holding that "these three appellants are entitled to be considered for promotion in preference to the eighteen Executive Engineers and also in preference to the other Executive Engineers who had not passed the departmental examination within five chances". The petitioners' appeals were accordingly partly accepted and it was directed that these Assistant Executive Engineers, if not already promoted be considered for promotion as Executive Engineers (B.P.S-18) in preference to the eighteen Executive Engineers who were previously promoted against other available vacancies. It appears that the petitioners were promoted as Executive Engineers on 26-6-1995 i.e., before the judgment was announced by the Service Tribunal and this fact was taken note of in the impugned judgment. It was further observed by the Service Tribunal that since the persons who had not passed the examination in 5 chances had continued to remain in service, "it will now be too harsh to cease them for becoming ineligible". It was, therefore, directed that they may be retained in service but placed junior to all those who had passed the departmental examination in the requisite number of chances. .

7. We have heard the learned counsel appearing in support of these petitions and have not been persuaded to interfere with the impugned judgment of the Service Tribunal which, in our view, proceeds on correct premises, legal as also factual. The claim of the petitioners to have preference over respondents Nos.4 to 21 (in C.P. No.622 of 1995) in the matter of promotion in BPS-18 has been allowed by the Service Tribunal and their appeals to that extent have been accepted. As regards the petitioners' claim that they also have preferential right of promotion over respondents Nos.22 to 39 for the reason that the latter though passed the departmental examination in five chances but not within four years, it has been held by the Service Tribunal that these respondents were not provided five chances in a period of four years and, therefore, they could not be put to any disadvantage for not doing some thing which was otherwise impossible for them to do. It has not been denied by the learned counsel that the said respondents were not provided five chances in four years. That being so, the view taken by the Service Tribunal that the petitioners could not be given preference over respondents Nos.22 to 39 is not open to any legitimate exception.

8. Learned counsel made a grievance that even though Mr. Aftab Ahmad, learned Member of the Tribunal observed in para. 18 of the impugned judgment that those who had not passed the examination in five chances shall be placed junior to all those who had passed the departmental examination in the requisite number of chances, the learned Chairman in his brief note has left the question of seniority to be determined after all the AEEs are promoted. According to the learned counsel, petitioners having been promoted as Executive Engineers before the judgment was announced by the Tribunal, the question of seniority should also have been determined by the Tribunal keeping in view the observation in para. 11 of the impugned judgment that all the Assistant Executive Engineers who had passed the departmental examination in five chances on promotion shall stand senior to those who had not passed the examination within the prescribed chances. We find that the learned Chairman of the Tribunal has observed in his impugned note that after making promotion of all the Engineers, a provisional seniority list should be issued, objections thereto invited and after hearing the aggrieved persons, question of seniority be finalised whereafter "it would be open to all to challenge their seniority position according to law for redress of their grievances". These observations, in our view, are quite just and fair and are not likely to cause any prejudice to any one including the petitioners. As rightly observed by the learned Chairman, if the petitioners fell aggrieved of the final seniority position as and when determined by the departmental authorities, they can agitate against it before the Service Tribunal.

9. Upshot of the above discussion is that we find no merit in these petitions which are accordingly dismissed.

A.A./M-99/S Leave refused.