1996 SCMR 371 (PLP)

MANZOOR HUSSAIN SIAL, J.‑‑ This appeal by leave of this Court calls in question the validity of order dated 5‑3‑1992 of the Federal Service Tribunal (hereinafter referred to as Tribunal) whereby a direction was made to WAPDA, the appellant herein, to consider the case of respondent's promotion in the light of the observations made in the impugned order as also in the order dated 29‑8‑1991, previously passed in that behalf.

2. The facts in brief forming the background of this appeal are that Muhammad Farid Khan respondent Sub‑Divisional Officer was removed from service under section 1'A(1‑A) of the WAPDA Act, 1958, on 7‑6‑1977. He preferred appeal against the order of his removal from service which was dismissed on 28‑3‑1982, by the Tribunal. On further appeal, this Court set aside that order and remanded the case to the Tribunal for decision on the question of limitation.

3. On remand the Tribunal accepted respondent's appeal and reinstated him in service with all consequential benefits. The appellant filed petition for leave to appeal against the aforesaid order of the Tribunal but the same was dismissed by this Court on 3‑3‑1986.

4. Thereafter, the respondent moved a miscellaneous application before the Tribunal claiming the consequential benefits of his reinstatement in service. The appellant granted all the benefits, but for, his regular promotion in BPS‑17 post, unless he qualified departmental examination. The respondent again agitated the matter through another application which yeas allowed vide impugned order dated 5‑3‑1992, passed by the Tribunal.

5. Aggrieved by the aforementioned order, the appellant filed petition for leave to appeal, wherein leave was granted by this Court on 9‑6‑1992, to A consider whether the passing of examination was condition precedent for promotion under the relevant provisions of the Service Rules.

6. Learned Deputy Attorney‑General contended that it was incumbent upon the respondent to have qualified the departmental examination before his regular promotion to BPS‑

17. He relied on Manzoor Hussain v. Secretary, Establishment Division (1988 SCMR 27) in support of his submission.

7. We have examined the precedent cited above but find the same rather distinguishable and does not advance the case of the appellant. In the above refferred case, appointments to the posts of Section Officers from the officials serving in Grades 11 to 16 in the Federal Secretariat and attached departments were to be made through selection by holding promotional examination. It was held that the promotional examination proposed to be held for selecting more suitable candidates did not come in conflict with the provisions of the Civil Servants Act, 1973, or the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.

8. In the instant case, however, the promotion to BPS‑17 was to be made on the basis of seniority‑cum‑fitness. The respondent was already holding the same post since 1975, and the question arose whether he was required to qualify departmental examination before his regular appointment against the post.

9. It is significant to point out that this question came up for adjudication before the Tribunal. in respondent's case or. 29‑8‑1991, and the Tribunal categorically held that passing of examination by the respondent was not necessary for promotion. On the question, the learned Deputy Attorney -General admitted that, this order of the Tribunal was not assailed, considering the same to be an interlocutory order. The Tribunal if the impugned order dated 5‑3‑1992, explained and reaffirmed the previous order dated 29‑8‑1991, wherein the passing of the examination was not considered necessary as the respondent remained out of service for quite some time as a result of the order passed under section 17(1‑A) of the WAPDA Act. The order dated 29‑8‑1991, of the Tribunal wherein it was held that the passing of examination by the respondent for promotion in BPS‑17 was not necessary having been not challenged by the appellant attained finality g and cannot be permitted to be assailed in the garb of challenging the impugned order dated 5‑3‑1992.

10. For the foregoing reasons and in the circumstance's of the instant case, give are not persuaded to interfere in the impugned order of the learned Tribunal and dismiss this appeal with no order as to costs. A.A./W‑144/S Appeal dismissed.