HAQ NAWAZ Versus CHAIRMAN, RAILWAY BOARD/SECRETARY, MINISTRY OF RAILWAYS, ISLAMABAD

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑ Appellant Haq Nawaz was a Stenographer in the Office of the Divisional Superintendent, Pakistan Railways, Multan. His case is that as a matter of policy laid down under letter No. 752‑E/85‑III (E.1/8), dated 8‑12‑1976 and CPO Lahore Letters No. 757‑E/85‑III (E.Policy), dated 8‑9‑1981; No. 757‑E/6/(JPO‑I), dated 23‑9‑1980; No. 803‑E/113‑XVI (E.1), dated 27‑10‑1979 and No. 803 E/113‑XVII (E.Policy), dated 22‑9‑1980, 1/3rd of the posts in Grade‑16 in the Personnel Section were allocated to the Stenographers. The respondents Nos. 2 to 16 belonging to different cadres other than that of the Stenographers were promoted to Grade‑16 posts in May, 1980, while the Stenographers were ignored. During the processing of those promotions, the appellant submitted representation dated 25‑5‑1980 that the Stenographers also may be considered for their promotion to Grade‑16. There were representations by some other Stenographers as well. The decision taken on their representations was that the Stenographers would be considered for Selection Grade‑16, in due course, provided they were sufficiently senior and eligible therefore and the decision was communicated to the Divisional Superintendents, Pakistan Railways, Multan and Lahore, under letter dated 23 6‑1980 and a copy thereof was forwarded to the appellant in June, 1980. The appellant made a petition under section 25‑A of the Industrial Relations Ordinance, 1969 (IRO) to the Punjab Labour Court No. 9, Multan. His petition was accepted by the Punjab Labour Court No. 8 on 18‑1‑1982. The Railway Department preferred appeal before the Labour Appellate Tribunal, Lahore, which, by order dated 21‑4‑1982, allowed the appeal, holding that the appellant was a `civil servant' and, therefore, the Labour Court did not have jurisdiction to have adjudicated upon the matter. He, therefore, filed this appeal in May/June, 1982.

2. The appeal is directed against the Chairman, Railway Board/Secretary, Ministry of Railways, as respondent No. 1, and 15 other respondents whose promotions have been taken exception to. The respondent No.l, i.e. the Pakistan Railways have resisted the appeal. Respondents Nos. 8 and 14 also have resisted the appeal by filing written objections but they did not appear at the hearing of the appeal; whereas the respondent No. 12, Muhammad Ismail Shah, did not file written objections but appeared in person at the hearing of the appeal; while rest of the respondents have remained ex parte. The contesting respondents have taken preliminary objection that the appeal is time‑barred. They have also challenged the maintainability of the appeal on the ground that it is hit under section 4 of the Service Tribunals Act, 1973. On merits, their contention is that the promotions were made in accordance with the relevant rules and orders and there was no deviation there from and the appellant was not considered for promotion as his seniority position was far behind.

3. The appeal was dismissed by a Bench of this Tribunal by judgment dated 10‑8‑1985 on the ground that it was time‑barred. The appellant preferred Civil Appeal No. 400 of 1986 before the Supreme Court. The Supreme Court allowed his appeal by judgment dated 28‑11‑1990, holding that the delay in preferring the appeal before the Tribunal was condonable and remanded the appeal to the Tribunal for its decision on, merits.

4. The appellant has argued the appeal himself and also submitted written arguments supplemented with several documents. He has placed reliance on the following documents, which are reproduced in extenso: ‑‑

(1) Chief Officer/A & B (Personnel), Pakistan Railways Headquarter, Lahore Letter‑No. 752‑E/85‑111 (E.I)/B, dated 8‑12‑1976 addressed to all Divisional Superintendents, including DS and Extra Divisional Offices, Pakistan Railways ‑‑ Annexure `I' to the memo of appeal:

Subject: CHANNEL OF PROMOTION OF STENOGRAPHERS

In continuation of this Office Letter No. 752‑E/85‑II (E.I/B), dated 13‑3‑1965, it has been decided that the Stenographers NPS‑14 will also be eligible for selection to the posts of Grade‑16 NPS in Personnel Branch against the 1/3rd quota reserved for Branches other than Personnel Branch provided they qualify the Departmental Examination prescribed for promotion of Upper Division Clerks of Personnel Branch as Head Clerks NPS‑11.

(2) Chief Personnel Officer. Lahore Letter No. 752‑E/85‑III (E. Policy), dated 8‑9‑1981‑‑ Annexure 2.

Subject: CHANNEL OF PROMOTION OF STENOGRAPHERS

In part modification of this Office Letter No. 752‑E/85‑III (E.I/B), dated 8‑12‑1976, it has been decided to withdraw the condition of qualifying departmental examination (Appendix II) by the Stenographers RNPS‑14 laid down for their eligibility for selection to the posts of Grade‑16 (RNPS) officers in the Personnel Branch against 1/3rd quota reserved for branches other than Personnel Branch.

This issues with the approval of Chairman, Railway Board.

(3) CPO Letter No. 757‑E/6/JPO (I), dated 23‑9‑1980 addressed to the Senior Administrative Officer, Pakistan Railways Headquarter, Lahore ‑‑ Annexure 3 to the memo of appeal.

Subject: SELECTION FOR PROMOTION TO THE POST OF APO/JPO (RNPS‑16)

The following categories of staff are eligible for selection/promotion to Grade‑16 posts of APOs/JPOs in the Personnel Branch, Headquarters Office against 1/3rd quota of vacancies, for all purposes in `B' Group: ‑‑

(i) O.S. (RNPS‑14) of branches in the Headquarters Office who have no avenue of promotion in their branches.

(ii) Stenographers (RNPS‑14) provided they have qualified App. II Exam.1/3rd

It is requested that the service particulars of eligible staff in the aforesaid categories on the prescribed pro forma (copy enclosed) may please be furnished to this office within a week's time.

(4) CPO Letter No. 803‑E/113‑XVI (E.I.), dated 27‑10‑1979 ‑‑ Annexure 4 to the memo. of appeal.

Subject: RULES FOR SELECTION

In continuation of this office letter of even number dated 15‑3‑1978, it has been decided that the following procedure would be observed by the respective Departmental Promotion Committees to make recommendation for filling the selection posts on the basis of seniority and annual confidential reports: ‑‑

(1) The entire annual confidential report dossier of an eligible employee will be examined while particular emphasis will be in the annual confidential reports for the last three years.

(2) In RNPS‑7 and below and for promotion to RNPS‑8, the Departmental Promotion Committees will be guided by the seniority and the service record of the eligible staff concerned.

(3) The anticipated vacancies of the next two years will continue to be taken into account for drawing the approved panels.

(4) For the purpose of selecting staff for promotion courses, the Committees would be guided by the seniority and the annual confidential reports of the eligible candidates.

(5) The Departmental Promotion Committees will only examine the actual number of eligible candidates on the basis of available vacancies, which may be exceeded to the extent necessary, when the requisite number of approved candidates is not forthcoming from amongst the ordinarily eligible candidates. Percentage which had been allocated to different eligible categories for call purposes only, according to the instructions issued from time to time would now be observed for actual promotion to the higher grade posts.

A specimen of the pro forma to be used by the Departmental Promotion Committee is enclosed.

These orders have the approval of the Chairman, Railway Board.

(5) CPO Letter No. 803‑E/113‑XVII (E. Policy), dated 22‑9‑1980‑ - Annexure 5 to the memo of appeal.

It has been decided to supersede para. 1(6) and partially modify para.1 (7) of this Office Letter No. 803‑E/113‑XVI (E‑1), dated 27‑10 1979 as follows: ‑

6. Percentage fixed for promotion to higher posts in different eligible categories will now be observed for call purposes only as prior to the issue of this Office Letter No. 803‑XVI (E-I), dated 27‑10‑1979. The pro forma enclosed with this Office Letter No. 803‑E/113‑XVI (E‑I), dated 27‑10‑1979 will continue to be utilised for supplying particulars of eligible staff against the categories for which promotion will be made on the basis of annual confidential reports as laid down in para. 2(1) of the said letter.

So far as the posts to be filled by the process of written test followed by interview as laid down vide para. 2(ii) of this Office Letter No. 803‑E/113‑XVt1 (E‑1), dated 4‑6‑1980 are concerned, the particulars of eligible staff will be furnished in the pro forma in force prior to the issue of this Letter No. 803‑E/113‑XVI (E‑I), dated 27‑10‑1979.

These orders have the approval of Chairman, Railway Board.

(6) General Manager (P)'s Letter No. 757‑E/O‑III (E‑Policy), dated 28‑1‑1984 ‑‑Annexure D to the written arguments.

Subject: DEPARTMENTAL PROMOTION EXAMINATION

In part modification of the instructions circulated under this Office Letter No. 757‑E/O‑II (E. Policy), dated 12th October, 1972, copies of Railway Board's Letter No. E.80/P.M.‑1/1‑IV, dated 30‑11‑1983 and 2‑1‑1984 are sent herewith for information and guidance.

It is now desired that all promotions already ordered before 15‑11‑1983 from UDCs to Head Clerks and Commercial Assistants to Commercial Supervisors (Parcel, Goods and Booking) of the staff otherwise eligible against regular posts (excluding work‑charged posts and leave vacancies) subject to qualifying departmental examinations and selections, as the case may be, having now been exempted, may please be regularised by holding DPC immediately and compliance report submitted to this office by 29‑2‑1984 positively.

In case of promotions to be made after a simple examination of the working knowledge of the Branch concerned in respect of promotion from UDCs to Head Clerks and Commercial Assistants to Commercial Supervisors (Parcel, Goods and Booking) should be arranged followed by DPC at the time of filling up vacancies on regular basis.

The vacancies of Office Superintendents and Superintendents Commercial which are already declared as selection posts shall be filled in by Headquarters Office in accordance with the instructions' referred to above.

This issues with the approval of General Manager.

5. The appellant has stated in paragraph 2 of his written arguments that in May 1980, there were 18 vacant posts of Assistant Personnel Officers (Grade‑16), which were to be filled in by 'promotion as per policy laid, down under letter dated 8‑12‑1976 but they were filled in by Group `A' staff belonging to 2/3rd quota posts, ignoring those allocated 1/3rd quota as per letter dated 8‑12‑1976 on the pretext that the Stenographers had not qualified the Appendix II Examination. According to him, 1/3rd posts out of 18 vacant posts should have been reserved for the Stenographers and others constituting Group `B' until the departmental examination was held as it had not been held before. He has further stated that his representation to the Chairman, Railway Board dated 25‑5‑1980 for his ad hoc promotion, as done in the, case of 2/3rd quota Group was turned down on the ground that he would be considered for selection as Assistant Personnel Officer as and when held, provided he would be sufficiently senior and eligible for promotion against 33% quota but decision was taken to the contrary and all the ad hoc promotees of 1980 against the 18 vacant posts were promoted regularly in the year 1983 and the personnel allocated 33% posts were ignored, as against the decision contained in Chief Personnel Officer Lahore's Letter No. 803‑E/113 XVII (E.I. Policy), dated 6‑4‑1982 (Annexure I to the written arguments). According to him, he would have been promoted as Assistant Personnel officer if the Stenographers and other personnel bracketted with them had been given their due representation against 33% quota posts. He has mentioned certain instances of promotion of his juniors. He has disclosed in his written arguments that Stenographers were placed in B‑16 with effect from 1‑7‑1983 and the posts of Assistant Personnel Officers were upgraded from Grade‑16 to Grade‑17 and he was ultimately promoted as Assistant Personnel Officer (B‑17) on current charge basis with effect from 3‑10‑1984 but he was not allowed pay in B‑17 and he retired on superannuation on 3‑1‑1987 on his substantive pay in B‑16, He has also mentioned in his written arguments that the Honourable Supreme Court had made order dated 13‑12‑1986, whereby the Railway Department was directed to finalise his seniority at the earliest and submit report and his pro forma promotion with effect from 8‑9‑1981 was actually approved as per office note dated 18‑4‑1987 but no order was issued and he retired without any relief.

6. None appeared for the respondent department at the hearing of the appeal. From amongst other respondents, only respondent No. 12 (Muhammad Ismail Shah) appeared. He stated that he was promoted as Assistant Personnel Officer (B‑16) on 13‑3‑1978 and he voluntarily retired on 30‑4‑1981. He added that none of the Stenographers had qualified the departmental examination as to be eligible for promotion.

7. The appellant has made following prayer in the memo. of appeal:-

"It is, therefore, respectfully prayed that the impugned orders dated 26‑5‑1980, 29‑5‑1980 and 29‑5‑1980 (Annexures 6 to 8) be set aside for observing due seniority of appellant for promotion against the 1/3 rd reserved quota via‑a‑via 2/3rd quota reserved for Office Superintendents of Personnel Branch and for promotion of appellant accordingly as Grade‑16 Officer of Personnel Branch with retrospective effect, from a date earlier than the date of promotion of respondents Nos. 2 to 16, with back benefits and costs throughout."

The‑orders sought to be set aside pertained to the appointment in Grade‑16 of the respondents Nos. 2 to 16 on ad hoc basis. The grievance of the appellant is that the respondents Nos. 2 to 16 were junior to him and they were promoted to Grade‑16, although on ad hoc basis, whereas he was ignored and their ad hoc promotion was continued for more than two years in defiance of the order for regularisation of their ad hoc services as contained in CPO Lahore's Letter No. 803‑E/113‑XVII (E. Policy), dated 4‑2‑1982. He has stated in his written arguments that in May 1980 there were 18 vacant posts of Assistant Personnel Officers (Grade‑16), out of which 12 posts were meant for 2/3rd quota allocated to Group `A', and 6 posts were to be given to the 1/3rd quota allocated to Group B', which comprised the Stenographers (B‑14) and others, but all the 18 posts were filled in by making promotions thereto from Group `A'. It is not denied that all the 18 posts in Grade‑16 were filled in by the candidates promoted from Group `A' but it has been pleaded that those appointments were made on ad hoc basis as the candidates in Group `B' had not passed the requisite departmental examination. The contention of the appellant is that no departmental examination was held up to 1981 and ultimately passing of the departmental examination was dispensed with by order dated 8‑9‑1981 and the candidates in Group `B' also should have been considered for ad hoc promotions like the respondents Nos. 2 to 16. By virtue of the order dated 8‑12‑1976, referred to above, the Stenographers, the appellant belonged to the category of, were made eligible for selection to the posts in Grade‑16 in the Personnel Branch against 1/3rd quota reserved for branches other than Personnel Branch, subject to their qualifying the departmental examination prescribed for promotion of UDCs of Personnel Branch as Head Clerks. To the misfortune of the Stenographers, no departmental examination was held until 1981 and, they could not attain eligibility for promotion to Grade‑16 posts until they were exempted from passing the departmental examination as per Chief Personnel Officer Lahore's Letter No. 752‑E/85‑III (E. Policy), dated 8‑9‑1981. The respondents Nos. 2 to 16, who belonged to Group `A', were given ad hoc promotion and the Stenographers did not have genuine grievance against their ad hoc promotion because they had not become eligible for consideration for promotion to Grade‑16 posts by that time. They became eligible for consideration for promotion to Grade‑16 posts against the posts falling to 1/3rd quota for the Stenographers and the personnel for the branches other than the Personnel Branch. After their eligibility for promotion consequent to their exemption from passing the departmental examination. Promotions in 1983 were actually made from both the Groups `A' and `B' and some of the respondents were retained in Grade‑16 posts reserved for direct recruitment through the Federal Public Service Commission and the Stenographers did not have legitimate grievance that they were denied promotions to Grade‑16 posts. Of course, the appellant did not have chance of promotion at the earlier stage as he had not reached the top position to get the promotion. The appellant has stated in his written arguments that pay scales of the Stenographers were revised and they were placed in Grade‑16 with effect from 1‑7‑1983 and the post of Assistant Personnel Officer was upgraded to Grade‑17 and lie was promoted as Assistant Personnel Officer (Grade‑17) on current charge basis with effect from 3‑10‑1984 and he retired on superannuation in Grade‑16 on 3‑1‑1987 without getting the benefit of pay in Grade‑17. He could not demonstrate to establish that he was fully qualified to have been promoted to Grade‑17 and he has not made out a case for his regular promotion to Grade‑17.

8. As discussed above, the appellant's prayer as mentioned above is for setting aside the orders of ad hoc‑promotions of the respondents Nos. 2 to 16 viz. the orders dated 26‑5‑1980, 29‑5‑1980 and 19‑5‑1980. It has been discussed above that those orders were passed when the appellant was not eligible to have been considered for promotion on ad hoc or regular basis. His next prayer is for his consideration for promotion against the posts to 1/3rd quota in Group `B' and it has been discussed above that the Group `B' had been given its due share in the promotion quota at the appropriate time i.e. in the year 1983 and afterwards; but the appellant could not bear its fruits as he could not reach that stage by the time he retired from service. He has absolutely no case to claim promotion over and above the respondents Nos. 2 to 16. In the result, the appeal has no merit and it is dismissed with no order as to costs.

A.A./694/Sr. F

Appeal dismissed.