1984 PLP 3476 (CLC)

(a) Service Tribunals Act (LXXI of 1973)‑ ‑‑ S. 4‑Provisional Constitution Order (1 of 1981), Art. 9‑Terms and conditions of WAPDA employees‑Determination of‑Exclu sive jurisdiction of Service Tribunal established under Service Tribunals Act, 1973‑Service Tribunals Act, 1973 provided estab lishment of Service Tribunals to exercise jurisdiction in respect of matters relating to terms and conditions of civil servants‑Service of WAPDA having been declared a service of Pakistan, Service Tribunal, held, had exclusive jurisdiction in the matter.‑[Jurisdic tion‑Civil service]. (b) Service Tribunals Act (LXX of 1973)‑ ‑‑ S. 4‑Provisional Constitution Order (1 of 1981), Art. 9‑Peti tioners basically agitating question of fixation of seniority, whether it was to be reckoned from date of appointment or from date of notification of passing departmental examination‑Deter mination of seniority appertains to terms and conditions of service‑Such matter, held, Jay within exclusive jurisdiction of Service Tribunal under S. 4 of Service Tribunals Act, 1973, through appeal‑Writ petition dismissed in circumstances.‑[Civil service]. The petitioners in this writ petition have challenged the criterion laid down by the WAPDA for the determination of the seniority of Sub -Engineers in WAPDA for the purpose of promotion to Junior Engineers and have sought an issuance of a direction towards it to the Selection Committee comprising respondents Nos. 3 to 6 to do what is required by the law to be done namely to determine the fitness of Sub‑Engineers in WAPDA including the petitioners for promotion to higher grade (Junior Engineers) on the basis of the date of appointment as Sub‑Engineers and to take Into consideration for the purpose the seniority list prepared and circulated.

2. Briefly the facts of the case are that petitioner No. 1 Birjees Ahmad Beg joined WAPDA as ‑ Sub‑Engineer on 6th February, 1961 and petitioner No. 2 Ch. Nazir Ahmad on 29th October, 1960. The peti tioners were eligible for promotion to the post of Junior Engineers after the completion of eight years' service subject to the service record being satisfactory and passing of the departmental examination if not already held within two years of their appointment as Junior Engineers. The requisite qualifications are given in a letter, dated 29th January, 1964 issued by the WAPDA laying down the criterion for promotion of Overseers/Sub‑Engineers to the posts of Junior Engineers. In 1975 the Government of Pakistan decided vide its notification (Annexure 'B') that twenty‑five per cent of the total posts of Diploma Engineers to which the petitioners belonged were to be placed in N. P. S. 16 allowable on the basis of seniority‑cum‑fitness subject to 10 years' service and passing of the prescribed departmental examination. The petitioners had passed the departmental examination on 1st July, 1977 and 2nd January, 1978 respectively, and completed the period of 10 years' service so they were placed in N. P. S.

16. In the context of the proposed promotion a seniority list (Annexure'C') of Sub‑Engineers in WAPDA was prepared on 6th November, 1980 on the basis of the date of appointment against the posts of Sub‑Engineers. In the covering letter it was written that any objection as to the above said list was to be intimated by 20th November, 1980. In the absence of any objection the list was to become automatically final. According to the list so prepared petitioner Birjees Ahmad Beg was shown at serial No. 41 and petitioner Ch. Nazir Ahmad at No.

39. Another seniority list (Annexure `D'), dated 6th June, 1981 was issued according to which petitioner Birjees Ahmad Beg was shown at No. 48 and petitioner Ch. Nazir Ahmad at No.

72. The first list was prepared on the basis of the length of service as Sub‑Engineer/Overseer. The second list was framed on a criterion newly laid down on the basis of passing the departmental examination. The seniority was to be reckoned from the date of the notification of passing the departmental examination instead of the date of appointment as a Sub‑Engineer in WAPDA. By that time it was intended to fill in the posts of Junior Engineers. The revised criterion for the fixation of the seniority of Sub- Engineers was adopted to the disadvantage of the petitioners in order to given benefit to other persons who were juniors to the petitioners.

3. The case of the petitioners is that they were eligible for promo tion to the higher grade (Junior Engineer) on the basis of seniority‑com-fitness. The selection committee comprising respondents Nos. 3 to 6, due to illegal computation of seniority of Sub‑Engineers including the petitioners whose cases were under consideration for promotion to the posts of Junior Engineers, has placed the petitioners below those Sub -Engineers who were appointed later to them against the same post but had qualified departmental examination earlier than the petitioners. The impugned criterion laid down by the WAPDA for the computation of seniority for the purpose of promotion making the date of passing the departmental examination as the basis instead of the date of appointment against the post, is based on mistaken interpretation of the provision of law as envisaged under sections 8 and 9 of the Civil Servants Act, 1973 and the fixation of the seniority towards promotion to higher grade i.e. Junior Engineers, is arbitrary and discriminatory.

4. The learned counsel for the petitioners has in support of this writ petition argued the case at length as to the validity of the criterion adopted by respondent No. 1 by referring to various letters issued by respondent No. 1 and the relevant provisions of law to which the learned counsel for the respondents have made elaborate replies. The arguments raised on both the sides require no discussion as this petition is liable to be disposed of on a preliminary objection raised by the learned counsel for the respondents that the matter appertains to the terms and conditions of service, as such, the determination of it lies within the exclusive jurisdiction of the Tribunal under the Act LXX of 1973.

5. The above referred Act was promulgated with a view to providing the establishment of Service Tribunals to exercise jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants. Section 4 of this Act provides for appeals to the Tribunals which is reproduced here for facility of reference :‑

4. Appeals to Tribunals.‑(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter :‑ Provided that :‑ (a) ... ... ... ... ... ... ... ... (b) 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 grade. (2) ... ... ... ... ... ... ... ... (a) ... ... ... ... ... ... ... ... (b) ... ... ... ... ... ... ... ... There is no dispute that the service of WAPDA has been declared to be the service of Pakistan. The petitioners though towards promotion which entails seniority‑cum -fitness, are basically agitating the fixation of their seniority that whether it is to be reckoned from the date of their appointment or from the date of the notification of their passing the departmental examination. The determination of seniority appertains to the terms and conditions of B service of the petitioners the determination of which lies within the exclusive jurisdiction of the Service Tribunal under section 4 of the Service Tribunals Act, 1973, through an appeal. The objection raised by the learned counsel for the respondents is, therefore, sustained as a result of which this writ petition is dismissed but without any order as to costs. M. B. A. Petition dismissed.