P L D 1998 Supreme Court 117 (PLP)

AJMAL MIAN, ACTG. C.J.--By this common order we intend to dispose of the above petitions for leave to appeal which are directed against a common judgment dated 24-4-1997 of the Federal Service Tribunal, Islamabad, hereinafter reference to as the Tribunal, passed in Appeals Nos. 38(R) to 45(R) of 1997, filed by the private respondents, allowing the same as under:- "

6. The appellants were senior to the private respondents and the seniority position has attained finality in 1994. They possessed the required length of service for promotion and there was the only bottleneck of qualifying the professional examination of B.Ed. and on acquisition of such qualification, the said bottle-neck was removed and thus they were eligible to be considered for promotion on the basis of seniority-cum-fitness based on the said final seniority list of the feeding cadre. The appellants have not accordingly been considered. Therefore, they are justified to file the appeal. Consequently, we accept all these appeals and direct that the case of the appellants may be placed before the appropriate DPC on the basis of seniority-cum-fitness for consideration to be promoted against the posts of Trained Graduate Teachers (B-16). On their promotion after such consideration, they will reckon their seniority with effect from the date, the private respondents were so promoted. No order is made for costs. "

2. The brief facts are that the petitioners and the private respondents were working as Trained Under Graduate Teachers (B-14/15 selection grade). They were entitled to be promoted as Trained Graduate Teachers in B-16. It seems that the private respondents joined the cadre of Trained Under Graduate Teachers earlier than the present petitioners. They were, accordingly, shown as senior to the petitioners in the final seniority list circulated on 6-7-1994. It further seems that the petitioners acquired the technical professional qualification of B.Ed. earlier than the private respondents. It appears that the respondent department ignored the aforesaid seniority of the private respondents and prepared another seniority list in 1995 which was circulated on 4-12-1995 for promotion to Trained Graduate Teachers (B-16). As a result of the above new seniority list, the petitioners were promoted by superseding the private respondents. The private respondents after exhausting the departmental remedy filed aforementioned appeals before the Tribunal, which were allowed in the above terms. The petitioners have, therefore, filed the present petitions for leave to appeal.

3. In support of the above petitions Kh. Muhammad Farooq, learned ASC for the petitioners, has vehemently contended that since the private respondents did not have three years' teaching experience after having acquired the above technical qualification of B.Ed., they could not have been promoted to Trained Graduate Teachers (B-16) by ignoring the petitioners who had the requisite experience of three years as Trained Under Graduate Teachers after acquiring the technical qualification of B.Ed. To reinforce the above submission, he has invited our attention to Note II of S.R.O. 53(KE)/93, dated 4-1-1993 gazetted on 27-3-1993, which reads as follows:- "Note II. Prescribed experience shall be counted after acquiring the required basic educational qualifications." According to him, if the above Note is to be read with Item 6 of the Table given in Para. 3 of the aforesaid S.R.O., it becomes evident that three years' teaching experience is to be counted from the date when the required basic educational qualification is acquired. On the other hand, Hafiz S.A. Rehman, learned Sr. A.S.C. appearing for private respondent No.3 in all the petitions, has pointed out that above Note II relates to initial induction and not to the promotees who have already acquired experience. In support of the above submission, he has invited our attention to aforesaid Item 6 (at page 40 of the paper book), which reads as under: "

6. Trained (a) Trained Under??????????? (i) B.A./B.Sc with B.Ed., and Graduate Teacher??????????? Graduate Teacher (BPS-16)??????????? (BPS-14)?????? (ii) 3 years' service as Trained ??????????? ??????????? Under Graduate Teacher ??????????? ??????????? BPS-14 ??????????? ??????????? OR (i)??????????? B.A./B.Sc with Diploma ??????????? in Industrial Arts; and (ii) 3 years' service as Trained Under Graduate Teacher (BPS-14) OR (i)??????????? Shahadat-ul-Uloomiya-FilUloomi Arabia Islamia with B.Ed. or recognized equivalent qualifications; and (ii) 3 years' service as Trained Under Graduate Teacher (BPS-14). " He has further pointed out that in above sub-para. (ii) of para. (a) of Item 6, the words used are 3 years' service as Trained Under Graduate Teacher (BPS-14) and not 3 years' experience as Under Graduate Teacher with B.Ed.

4. We are inclined to agree with the above submission of Hafiz S.A. Rehman as para. 4 of the aforesaid S.R.O. provides qualification, experience and age limits for initial appointments. The above Note II is to be read with aforesaid para.

4. The Tribunal has also taken the same view in the following words:- "

4. The plain narration of the practice adopted by the department leads one to believe that if qualification and experience was mentioned as the conditions of eligibility for a particular post, then only such experience shall be counted which is acquired after the possession of professional qualifications and any earlier experience prior to the acquisition of professional /technical qualifications will not be counted towards the length of service. However, on the minute analysis of the rules, the underlined logic is displayed in a different manner. The rules notified on 4-1-1993 prescribes in para. 2 that the post of TGT (B-16) shall be filled 50% by promotion and 50% by initial recruitment. S.No.6 of Rule 3 states that the persons eligible for promotion to the post of TGT (B-16) shall be the Trained Under Graduate Teachers with "(i) B.A./BSc. with B.Ed., and (ii) 3 years' service as Trained Under Graduate Teachers (B-14) .... ", which means that there is no obligation of having acquired three years' service after acquiring the technical qualification of B.Ed. So, any Trained Under Graduate Teacher who has served as such for three years and has qualified B.Ed., Examination becomes eligible for promotion to the post of Trained Graduate Teacher (B-16) on the basis of seniority-cum-fitness. The misconception with the department is that for certain posts, it is required that a person must have professional qualification and experience and the department normally interprets that the required experience has to be counted after the acquisition of a professional qualification and not prior thereto. In the instant case, there are two different cadres of Trained Under Graduate Teachers and Trained Graduate Teachers. The Cadre of Trained Under Graduate Teachers is the feeding cadre for the promotion to the extent of 50 as Trained Graduate Teachers. And thus there is no requirement of serving as Trained Under Graduate Teachers for three years after acquiring B.Ed. as professional qualification required for promotion. A person possessing the qualification of B.Ed. is not eligible for promotion as Trained Graduate Teachers unless he completes three years' service as Trained Under Graduate Teacher but a person with the said experience of three years' service as Trained Under Graduate Teachers becomes eligible for promotion as Trained Graduate Teacher just on the acquisition of the B.Ed. qualification. There is no rule stating any preference of those who qualified in the earlier batch over those who qualified in the later one."

5. We do not find any infirmity in the above reasoning. Leave is refused, M.B.A./M-67/S???? Petition dismissed.