1985 PLP 1158 (SCMR)

M.S.H. QURAISHI, J.‑‑ These two petitions are directed against one and the same order, dated 9‑8‑1984 of the N.‑W.F.P. Service Tribunal.

2. Seventy‑five per cent. of the posts in Grade‑18 in the Provincial Education Department were to be filled in by promotion from among the Grade 17 Officers of that Department and 25% by direct recruitment. However, no proper rotation of the vacancies for the purpose appears to have been maintained. The five petitioners, i.e. , Shah Jehan and others, in Civil Petition No.251‑P of 1984, were directly recruited, three of them on 30‑12‑1980 and two on 1‑9‑1982. Buner Khan and others, respondents in both the petitions, who are promotees, were promoted to Grade‑18 on 12‑5‑1984. No joint seniority list in Grade‑18 was thereafter notified, with the result that some of the direct recruits were promoted to Grade‑19 without the promotees being considered for such promotion. The promotees represented that their promotion be given retrospective effect from a date earlier than that of the direct recruits. But failing to succeed, they preferred an appeal before the Service Tribunal. The Tribunal held that maintenance of separate seniority lists, one of the promotees and the other of the direct recruits, was not proper and that promotion of the promotees with immediate effect on 12‑5‑1984 was also not proper as they should have been promoted with effect from the date when vacancies in their quota became available. The Tribunal further found that even on 30‑12‑1980 when the first three direct recruits were appointed, there were 12 vacancies, of which 9 could have been filled in by promotion with effect from that date. The Tribunal accordingly allowed the appeal and directed "the Government to promote the appellants (promotees) to Grade‑18 posts w.e.f. the dates the vacancies were available and thereafter a joint seniority list of the Officers directly .recruited and those promoted be issued according to the rules".

3. The learned Assistant Advocate‑General, appearing for the petitioner, that is, the Government of N.‑W.F.P., in Civil Petition No.235‑P of 1984, questioned the finding of the Tribunal that there had been 12 vacancies in Grade‑18 on 30‑12‑1980. He also questioned the jurisdiction of the Tribunal to direct the Government to promote the promotees. Under proviso (b)(i) to section 4 of the North‑West Frontier Province Service Tribunals Act, 1974, 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". Similar contention was raised on behalf of the petitioners in the other petition, who also challenged the maintainability of the promotees appeal itself before the Tribunal. It was further urged on their behalf that although the direct recruits had been appointed first on 30‑12‑1980 and then on 1‑9‑1982, the appointments had not been challenged by the promotees.

4. Be that as it may, the fact remains that the vacancies were not filled in according to the rotation under the Rules. The promotees were entitled to be considered against every vacancy which occurred in their quota. This apparently was not done and as such the grievance of the promotees is legitimate though we find force in the argument that the Tribunal itself could not direct the Government to promote them from a particular date. This legal aspect of the matter is not contested.

5. Accordingly, we convert these petitions into appeals and allow them to the extent that the direction of the Tribunal "to promote" the respondents herein (promotees) is modified and is substituted by the direction that the promotees shall be considered for promotion to Grade‑18, post with effect from the dates when vacancies in their quota became available and that thereafter a joint seniority list of the Officers directly recruited and those promoted shall be issued according to the rules. The appeals are disposed of in the above terms leaving the parties to bear their own costs. M. Z. M.????????????????????????????????????????????????????????????????????????????????? Order accordingly.