2012 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Muhammad Akram Javed was a Ward Keeper in BS-10 in Pakistan Railways. He did his B.Sc. in Civil Engineering in 1993 from South Western University, Philippines. On 16-1-1996 he was appointed as Assistant Controller of Store/Dry Port, Karachi (BS-17) against 5% promotion quota reserved for employees getting higher degrees. His promotion was made in his own pay scale pending clearance by the Departmental Promotion Committee. According to ,the appellant he had qualified P-71 Course, a requisite for promotion, but in spite of that he was reverted as Ward Keeper vide order dated 29-6-2009. His departmental appeal dated 30-7-2009 was not responded. Hence this appeal

2. The, respondents have resisted the appeal. A preliminary objection is taken that the departmental appeal was not filed in time. On merits, it is stated that the appellant had been appointed as ACO by the General Manager who was incompetent as the authority to make such appointment vested in the Chairman/Secretary Railways. It is further stated that the appellant had not got himself registered with Pakistan Engineering Council and for that reason meeting of the Departmental Promotion Committee was not convened to consider his promotion. The main contention of the respondents is that appellant being in BS-10 only could not be promoted to BS-17. It is maintained that only officials in BS-11 having done P-4 with eight years experience could be promoted. As regards P-71 the submission of the respondents is that the appellant had appeared in that course from 17-2-2003 to '28-5-2004 whereas instructions for lower. pass percentage were issued on 15-8-2004 and such instructions did not have retrospective effect, therefore, not applicable to him.

3. We have heard the learned counsel for the parties and have also perused the record.

4. The impugned order of reversion was passed on 29-6-2009 whereas the departmental appeal filed on 30-7-2009 was time-barred. It was not filed within the stipulated period. On the strength of law laid down in 2007 SCMR 513 we hold that the appeal is not competent.

5. The appellant has maintained that he had acquired higher qualifications by getting B.Sc degree in Civil Engineering from South Western University, Philippines. Such a degree from a foreign university has to be recognized by the Pakistan Engineering Council. For that registration with Pakistan Engineering Council is essential. The appellant did not get himself registered with the Engineering Council. As such his degree, obtained from a foreign university, could not be taken into consideration. We have enquired from the learned counsel for the appellant as to whether the appellant has got himself registered with the Pakistan Engineering Council to-date but his reply is in the negative. Since the appellant is not registered with Pakistan Engineering Council, therefore, the respondent department was justified in not taking into consideration his so called higher academic qualifications.

6. The appellant had been made ACO (BS-17) by General Manager, Pakistan Railways. We find force in the contention of the respondents- that General Manager was not competent to pass such orders. Promoting an official to BS-17 is the prerogative of the Secretary/Chairman Pakistan Railways. We accordingly hold that the appellant was not lawfully promoted as ACO. The withdrawal of such order was legally justified.

7. The appellant has claimed that he was entitled to promotion from BS-10 to BS-17 in the light of decision of the Establishment Division contained in Office Memorandum No.37/1/75-R-5/R-3 dated 1st June, 1986. For the same of convenience this memorandum is reproduced as under: "The undersigned is directed to refer to the Ministry of Railways (Railway Board) O.M.No.6/8/86-A.II dated 24-4-1986 on the above subject and to convey its Division's concurrence to the proposal made regarding promotion of officials in BPS lower than BPS-I6 but possessing the required qualification to ES-17 against 5% quota, prescribed by this Division."

8. The learned counsel for the appellant has vehemently argued that on the strength of this O.M. the appellant was eligible for promotion from BS-10 to BS-17. However, the main condition laid down in the O. M is that the official must possess the required qualifications for getting promotion to BS-17 against 5% prescribed quota. The required qualifications are stated to be that the official must have served in BS-11 for at least 8 years. The appellant did not fulfill this criteria. He did not serve in BS-11 nor did he have 8 years experience in that scale. Hence he was not qualified for promotion to BS-17 notwithstanding the acquisition of B.Sc Civil Engineering degree from a foreign university.

9. If the appellant has in fact acquired a degree, recognized by Pakistan Engineering Council, he must get himself registered. Once he gets, himself registered his claim for appropriate posting against a suitable vacancy shall be taken into consideration by the Pakistan Railways for the reason that a qualified engineer should not work against an assignment in BS-6

10. With the above remarks, the appeal is dismissed as not maintainable and being without any merit.???? B

11. There shall be no order as to.costs. Parties shall be informed. H.B.T./12/FST???????????????????????????????????????????????????????????????????????? Appeal dismissed.