1999 PLP 2546 (SCMR)

SAIDUZZAMAN SIDDIQUI, C:J.

Leave was granted in the above case to consider the 'following contentions:--

3. The learned counsel fox the petitioner contended that at the relevant Rules of 1954 and not the Rules of time the petitioner was governed by 1990 because he had passed the examination on 5-11-1989 and was entitled to the seniority before the Rules of 1990 were enforced. He further contended that the embargo of finally passing the examination in three attempts was provided in Rule 6 and the determination of seniority as provided by Rule 7 of 1990 Rules was not applicable, and therefore, the decision was completely wrong and illegal. The learned counsel has referred to the Rules of 1954 to demonstrate that it did not provide for three attempts to pass the examination. We grant leave to consider the question whether the petitioner's case was governed by the Rules of 1990 or 1954 and was he entitled to seniority." We have heard Mr. Sirajul Haque Momon, Advocate Supreme Court, for the appellant and Mr. Akhlaque Ahmed Siddiqui, Advocate-on-Record, for respondents Nos. l and

2. The appellant appeared in the C.S.S. Examination held in 1982 and was selected by Federal Public Service Commission (F.P.S.C.) in the 10th batch and allotted District Management Group (D.M.G.). On completion of training, the appellant served in various capacities in B. P.S.17. It is an admitted position that the appellant could not clear the Departmental Promotion Examination in three attempts. However, in the 4th attempt in the year 1989, he cleared the Departmental Promotion Examination, and therefore, he was promoted in B.P.S.18. The contention of the appellant before the learned Service Tribunal was that persons belonging to his batch and those junior to him, were earlier promoted to B.P.S.18, and therefore, his seniority in the gradation list of B. P.S.18 should be fixed in accordance with the date his juniors were promoted to B. P.S.18. The learned Tribunal, however, does not agree with the contention of the appellant and dismissed service appeal for the following reasons:-- "

5. Occupational Groups and Service (Probation, Training and Seniority) Rules, 1990, published on 23rd August, 1990, effective from 1st October, 1990, whereunder the earlier Civil Service of Pakistan (Probation, Training and Seniority) Rules, 1954, were repealed, regulate the seniority of probationers. According to Rule 7 (ibid), seniority of the probationers shall be determined by the Government after Final' Passing Out Examination. Since the appellant could not qualify the Final Passing Out Examination in three attempts, his services were liable to be terminated as laid down under Rule 6 (ibid). The appellant did appear in all the three attempts but could not qualify all the papers and in the fourth attempt he cleared the paper and due to this fact he was superseded on a number of occasions and the result was that he was relegated in the seniority and his case was not of deferment. For all these reasons, the appellant cannot get seniority retrospectively as he was superseded and not deferred. The appeal consequently fails and being devoid of merit is dismissed." The learned Service Tribunal while dismissing appeal filed by the appellant referred to Rule 7 of Occupational Groups (Probation, Training and Seniority) Rules, 1990 (hereinafter to be referred as 'the Rules of 1990'). It is contended by the learned counsel that as the appellant had already qualified in the 4th attempt in 1989, his case could not be regulated under the Rules of 1990 which came into effect on 23-8-1990. The learned counsel contended that in fact his case was covered under the Pakistan (Probation, Training and Seniority) Rules, 1954 (hereinafter to be referred as 'the Rules of 1954). To the extent that the case of the appellant is covered under the Rules of 1954 and that Rules of 1990 did not apply to the appellant, there appears to be force in the contention of the learned counsel. The appellant having qualified the Departmental Promotion Examination before coming into effect of the Rules of 1990, his case could not be governed under these Rules. However, this does not make any difference in so far the fate of this case is concerned. Even according to the Rules of 1954, the appellant's claim to seniority from the date his other batch mates were promoted to B.P.S.18 or his juniors were promoted is not sustainable. It is not disputed by the learned counsel that the Rule 9 of the Rules of 1954 was applicable to the appellant in the present case, which reads as follows:-- "9-A. A probationer who, having failed to satisfy the Director in one or more subjects, fails to satisfy the Commission in one or more of these subjects, or who, having failed to satisfy the Commission in one or more subjects, fails to qualify in one or more of those subjects at the subsequent examination referred to in rule 7 shall be liable to such penalty, whether by way of removal from service or loss of seniority or withholding of increments as the Governor-General may direct." It is quite clear from the above Rule 9 which according to the appellant, was applicable to his case, the appellant having failed to qualify the Departmental Promotion Examination was liable to the penalty of removal from the service or loss of seniority or withholding of increments. The appellants, who did not qualify in three attempts, therefore, could not claim seniority from a date prior to his passing of the examination which he admittedly passed in the 4th attempt in the year 1989. The contention of the appellant that some other persons belonging to this batch, who passed the examination in 4th, 5th or 6th attempt, have been given seniority from an earlier date has not been substantiated before us. In fact the appellant has neither impleaded any of those persons who were allegedly promoted to B.P.S.18 from a date prior to the passing of the qualifying examination nor he placed any such material in support of the above contention either before the Service Tribunal or before this Court. In the absence of the parties, who were allegedly promoted from a date earlier to the clearing of the Departmental Promotion Examination, the controversy raised by the learned counsel could not be decided by the Service Tribunal. Similarly, these controversies having not been raised before the learned Tribunal. could not be raised before this Court for the first time. Apart from it, there is no material available before this Court to adjudicate on the contention raised by the learned counsel for the appellant. The appellant's claim that he should be assigned seniority from a date prior to his passing of the departmental examination is neither supported by any rule nor by any decided case-law. We, therefore, find no substance in this appeal which is, accordingly, dismissed with no order as to costs. M.B.A./E-13/S Appeal dismissed