1999 PLP (C (PLC(CS))

Case of the private‑respondents before the Tribunal.

8. The case of all the private‑respondents was that the Recruitment Rules of 1984 did envisage independent posts of Sub‑Engineers B‑11 and B‑

16. The former were to be filled in by initial recruitment whereas the latter by promotion from amongst Sub‑Engineers B‑11, having 10 years service as also having qualified the departmental examination. In other words the plea was that the post of B‑11 was feeding post for promotion to B‑

16. It was pleaded on their behalf that the word 'cadre' means the strength of a service or a part of service, sanctioned as a separate unit. As the Recruitment Rules of 1984 had, within their contemplation, separate unit in B‑16, therefore, the promotion of private‑respondents to B‑16, after passing the departmental examination under the rules, earlier to the appellants, had an edge over the incumbents of the posts of Sub‑Engineers in B‑11, with the consequential right to count their seniority from the date of regular promotion to B‑

16. Judgment of the Tribunal dated 11‑6‑1996 (in C As Nos. 37 38 1178 to 1184, 1823 and 1824 of 1997.

9. The Tribunal considered the respective cases of the parties before it and, after making a detailed reference to the Recruitment Rules of 1984, it came to the following conclusion: "

5. We have carefully examined the arguments advanced by the learned counsels for the parties and have gone through the relevant record and rules. Before entering into one (sic) discussion, extract of Recruitment Rules of 1984 is reproduced hereunder for convenience of reference: SRO 751 (1)/84‑In pursuance of sub‑rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the following methods, qualifications and other conditions are laid down for appointment to the posts of Sub‑Engineers (BPS‑11) and (BPS‑16) in the Pakistan Public Works Department, under the Ministry of Housing and Works (Works Division).

2. The method of appointment to the post shall be as under:‑‑ (i) Sub‑Engineer (Civil) (B‑16)? By promotion of Sub Engineers (Civil) BPS‑11) (ii) Sub Engineer (E/M) (B‑16) By promotion of Sub ??????????????????????????????????????????????????????????????????????? Engineers (E/M BPS‑11) (iii) Sub‑Engineer (Civil) (B‑11)??????????? By initial appointment (iv) Sub‑Engineer (E/M) (B‑11)??????????? By initial appointment. 3.25 % of the total posts of Sub‑Engineer separately of Civil and Electrical/Mechanical cadres shall be placed in BPS‑16 and shall be filed on the basis of seniority‑cum, fitness from amongst the Sub?-Engineer diploma holders having completed 10 years service in the department provided that they have passed the prescribed Departmental Examination. A plain reading of the above quoted rule would show that the rule makers desired two different posts of Sub‑Engineer‑one of B‑11 and the other in B‑

16. It is true that number of posts in B‑16 was limited initially to 25 % and later to 33 % of the total posts of Sub‑Engineers but the rules definitely contemplate a separate 'unit' of Sub-?Engineers in B‑

16. If this had not been the import of Rules, 1984, then there was no occasion of issuing SRO 98(1)/92, dated 11‑2‑1992 whereby the concept of promotion to B‑16 was done away (with) and instead the schemes of Selection Grade (B‑16) was introduced. As per new rule of 1992, the Selection Grade posts were to be filled in on the basis of seniority‑cum‑fitness from amongst the Sub‑Engineers (B‑11). We, therefore, feel inclined agree with Mr. F.E. Siddiqi counsel for the private respondents that having been promoted to B‑16 an independent unit in the cadre of Sub‑Engineer?ing accordance with the Recruitment Rules of 1984, the respondents got a right to count their seniority from the date of their regular promotion to B‑16.

6. For the reasons discussed, we uphold the decision of the department to give the private respondents precedence over the B‑11 Sub‑Engineers and also approve the action of the department in maintaining a separate seniority list of B‑16 Sub‑Engineers circulated on 12‑7‑1995. As a consequence, all the appeals are dismissed with no orders as to costs. Parties be informed. "

10. Operative part of the judgment-dated 12‑11‑1996, which is the subject‑matter of C.A. No. 218 of 1998 reads thus: "

5. We have heard both the parties and perused the relevant record. As already pointed out before the seniority position is not in dispute. It has also been conceded by the respondent‑department that the appellant, too had completed 10 years' service and had passed the prescribed departmental examination, 1987 and was thus eligible for promotion alongwith the contesting respondents. The defence in the department's own words is that since the appellant passed the departmental examination in the year 1987 and respondents 4 to 8 had passed this examination either in 1985, they became eligible first and were, therefore, placed in the selection grade by the department, is, in our opinion, not correct. Section 8 of Civil Servants Act, 1973, provides that promotion can only be made to a higher post and seniority is to be recorded with reference to date of continuous appointment to a particular post. The pay revision rules do not determine these matters. Placement of the Sub‑Engineers in B‑16 against the 25 % or 33 % quota does not, therefore, mean that they have been promoted on regular basis. It does not take away the right of seniority from the date of continuous appointment in a cadre/post of their seniors who passed/cleared the departmental examination later than their juniors respondents 4 to 8 for various reasons particularly when the requisite rules for the relevant examination have not been framed. We have also perused the case of Prof. Dr. Badshah Gul and others v Prof. Dr. Shafiq Ahmed and others reported as 1995 SCMR 185, wherein the Hon'ble Supreme Court held in the relevant portion as under:‑‑ ???????. Post would, therefore, be the determining factor for deciding inter se seniority between civil servants holding the same post‑‑Although rules provide that seniority list amongst officers of a particular grade or post to be prepared, yet where inter se seniority was to be taken on the basis of post, higher grade for financial purposes would not affect the person holding seniority in post.

6. In the circumstances stated in the preceding paragraphs, the appeal is accepted and the respondent department is directed to issue a revised seniority list of Sub‑Engineers, according to their initial appointment and presumptive seniority and place the appellant over and above respondents Nos.4 to 8 in a cadre of Sub‑Engineers. The appeal is, therefore, disposed of accordingly."

11. Operative part of the judgment of the Tribunal dated 11‑4‑1997, which is the subject‑matter of C.P. 847 of 1997, reads thus: "

5. Before touching the merits of the case, once again we wish to have a recapitulation regarding the history of the Rules governing the contesting parties. In 1974, the Prime Minister took a decision that 25 % of total posts of the Diploma Engineers shall be placed in Grade‑

16. These posts should be filled on the basis of seniority?-cum‑fitness and subject to ten years' service and passing the prescribed departmental examination. This office memorandum in the shape of executive instructions was later on incorporated in the Rules of 1984 wherein it was provided that 'the qualifications and other conditions are laid down for appointment to the posts of Sub‑Engineers (B‑11) and (B‑16) in the Pak P.W.D.' and it was further provided that the method of appointment to the post of Sub‑Engineers (B‑16) shall be by promotion of Sub‑Engineers (B‑11). However, in the conditions for promotion, it was provided in accordance with the said directive of 1974, that ' 25 % of the total posts of the Sub‑Engineers shall be placed in B‑16 and shall be filled on the basis of seniority‑cum‑fitness from amongst the Sub‑Engineers Diploma Holders having completed ten years service in the department provided that they have passed the prescribed departmental examination'. These Rules were later on amended in 1992 and it was provided that ' 33 % of the total posts of Sub‑Engineers (B‑11) shall be placed in Selection Grade B‑

16. The selection grade posts shall be filled on the basis of seniority‑cum? fitness from amongst the Sub‑Engineers who have completed ten years' service in the department and have passed the prescribed departmental examination". Thus, keeping in. view both the Rules, the judgments given by this Tribunal earlier, apparently conflicting nature, can be reconciled in a manner that prior to 1992 the placement of Sub‑Engineers from B‑11 to B‑16 was a promotion and not a selection grade, whereas after 13‑2‑1992 not only the quota of placement in B‑16 was increased but the placement was changes from promotion to the selection grade.

6. However, the situation with which we are faced today is entirely different. In 1994 the earlier Rules for promotion to the post of Assistant Executive Engineer were changed and, was provided therein that 25 % of the posts of Assistant Executive Engineers (Civil) in BPS‑17 shall be filled by promotion and that the persons eligible for such promotion to such posts shall be the Sub‑Engineers Assistant Engineers having 3 years service in B‑11 and above and having passed the departmental examination'. Thus, with effect from 23‑1‑1994 all those employees working as Sub?-Engineers/Assistant Engineers having 13 years' service in B‑11 and above and having qualified the departmental examination shall be eligible to be considered for promotion to the post of Assistant Executive Engineer irrespective of any other consideration whether any one of such eligible persons was promoted to B‑16 or was allowed selection grade in B‑16 under the rules of 1984 or 1992. It is a general principle of interpretation of the statutes that the plain reading of the provisions, if unambiguous, is adopted in its true sense without importing any extraneous provisions or considerations If the Rules require that the condition of eligibility for promotion shall be based on the entire service rendered by a Sub‑Engineer in B‑11 and above, we are at a failure to appreciate why any preference could be given to the Sub‑Engineers placed to B‑16 on the basis of their dates of promotion in B‑

16. Nobody should claim to be wiser than the law or the rules. If the competent Authority had considered to allow any priority to those promoted earlier over those promoted later, or even if they were not sc promoted, a clear provision could have been introduced, The intentional omission in the Rules to give any credit to the promotees in further promotion means that the authority did not intend to differentiate between both the two categories of Sub‑Engineers in B‑11 and B‑16 for the purpose of promotion as Assistant Executive Engineers (B‑17). Although both the parties, i.e. the appellants and the private respondents are presently working in B‑16 and admittedly the appellants joined the service in B‑I1 earlier than the private respondents but for the sake of arguments, we may take that even if any of the appellants was in such a position that he was still working m B‑11, he should have been considered for promotion to B‑17 in preference to all the others subject to the only condition that he was senior to all of them and had passed the departmental examination, though recently. The private respondents might constitute an entire different cadre of promotees Sub‑Engineers and the appellants might constitute a different cadre of selection grade Sub‑Engineers and they may have their separate seniority lists for any other purpose for which the same may be relevant or which might be of any use prior to the enforcement of Rules of 1994, i.e. 23‑1‑1994, but there is no ambiguity in the Rules of 1994 and the promotion is to be based on the total length of service rendered by a Sub‑Engineer in B‑11 and above. No Preference or priority whatsoever can be given on the basis of the placement, as civil servant in B‑16 or the date thereof.

7. The learned counsel for the private respondents had argued that the appeal was not maintainble as the appellants have not challenged the basic order dated 7‑2‑1996 and had only challenged the notification dated 11‑2‑1996 which was merely a posting and transfer order and not an order of promotion. He, therefore, urged that with the setting aside of the order dated 11‑2‑1996 the original order dated 7‑2‑1996 will still hold the field. We have perused the record and we do not agree with the argument for the reasons that the departmental appeal as well as in the memorandum of appeal, the order dated 7‑2‑1996 read with order dated 11‑2‑1996 has been challenged. The omission in the prayer is a typographical mistake only and cannot negate the entire contents of the memorandum of a appeal. Similarly, the argument that the appellants have not challenged the grant of selection grade of the private respondents neither challenged the seniority list and, therefore, the position of the private respondents being senior to the appellants has attained finality which cannot be reopened at this stage, is also repelled by the fact that the seniority list of 1994 is already sub judice before the Hon'ble Supreme Court and the grant of selection grade or promotion to B‑16 in the same cadre was merely an incentive and financial benefits on qualifying the departmental examination and, therefore, the appellants had no cause to challenge the grant of selection grade or promotion prior to their becoming eligible for the said benefit by passing the departmental examination. As stated earlier, the private respondents were senior in B‑16 and they could have been promoted to B‑17 prior to 1994 but with the amendment in the Rules effective from 23‑1‑1994, the basic condition of eligibility for promotion to B‑17 has been modified and based on the total length of service in B‑1 and above. Similarly, the argument of giving preference to the Gazetted Sub‑Engineers (B‑16) over non‑Gazetted Sub‑Engineers (B‑16) is also devoid of force because the provisions contained in the Rules of 1994 are quite clear and unambiguous.

8. Consequently, we accept both these appeals and direct that the appellants deserve to be considered for promotion, as As.9istant Executive Engineers (B‑17) on the basis of their entire length of service in B‑11 and above, in accordance with the Rule‑ of 1994 and therefore we direct that their cases may be placed, before the appropriate D.P.C. for consideration. On their promotion, they will be deemed to have been promoted with effect front 7, 2‑1996, the date when the private respondents were so promoted No order is made for costs."

12. Operative, part of the majority judgment dated 26‑8‑19997‑ passed by the Tribunal in Appeals Nos.285 and 186 (R) 1997 reads thus: "By virtue of proviso (a) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973, the order of the Tribunal is that this appeal is accepted in terms of paragraph‑6 of the judgment, as per majority view."

13. Operative part of judgment dated 4‑9‑1997 passed by the Tribunal in Appeal No. 231‑L of 1997 reads thus: ? ..............................................................................This matter had already come before this Tribunal and in a very detailed order in Appeal No‑61 (K) of 1996, decided, on 11‑4‑1997, all these issues had been discussed in detail along with their implications. The final conclusion arrived at was that the appellant deserves to be considered for promotion, as Assistant Executive Engineer (B‑17;1 on the basis of his entire length of service in B‑11, and above, in accordance with the rules of 1994. Another appeal was decided by this Tribunal with No.288(R) of 1996 decided or 12‑11‑1996, wherein the department had been directed to issue a revised seniority list of Sub‑Engineers according to initial appointment and presumptive seniority. The Supreme Court of Pakistan in Civil Petitions Nos.1712‑L and 1715/L of 1996, held that section 8 of Civil Servants Act, 1973 provides that promotion can only be made to a higher post and seniority is to be recorded with reference to date of continuous appointment to a particular post. The pay revision rules do not determine these matters Placement of the Sub‑Engineers to B‑16 against the 25%a or 33% quota does not, therefore, mean that they have been promoted on regular basis, It does not take away the right of seniority from the date of continuous appointment in a cadre/post of their, seniors who passed/cleared the departmental examination later on than their juniors.

6. In the light of these judgments the prayer of the appellant is that a direction be given to the departmental authority to consider the appellant for promotion to B‑17 with effect from the date when the appellant's juniors were wrongly promoted, is held to be supported by law and facts of the case.

7. As a result, the appeal succeeds to the extent that the departmental authority should consider the appellant for promotion to B‑17 with effect from the date when the appellant's juniors were promoted.

14. Leave Grant Order (in C.Ps. Nos. 1713‑L of 1996 and 1715‑L of 1996 which gave rise to Civil Appeals Nos.37 and 38 of 1997) reads thus‑‑-- "Leave to appeal is sought against judgment dated 11‑6‑1996 by the Federal Service Tribunal disposing of 16 Appeals including Appeal No.380 (L) of 1995 filed by petitioner Muhammad Rafiq and Appeal No.379 (L) of 1995 filed by petitioner Muhammad Azam. Admittedly petitioner Muhammad Rafiq was appointed on 5‑1974 as Sub‑Engineer in BS‑11, while Muhammad Azam was appointed in the same post on 29‑4‑1975. In 1974 Federal Government issued office memorandum dated 16‑11‑1974 by which 25 % of the total cadre strength of Diploma Engineers were to be placed in BS‑16 on the basis of seniority‑cum‑fitness and subject to passing of the prescribed departmental examination as well as‑ past service of ten years In pursuance of such memorandum the petitioners were placed in BS‑16 on 5‑9‑1989. For regulating promotion of Sub‑Engineers of BS‑16 to BS‑17 a provisional seniority list was prepared and circulated on 5‑11‑1992 where name of Muhammad Azam appeared at serial No. 16, while name of Muhammad Rafiq appeared at serial No.28. This was followed by another provisional seniority list dated 3‑10‑1994 where name of Muhammad Rafiq was given at serial No.54, while name of Muhammad Azam was given at serial No.49. On 12‑7‑1995 final seniority list was issued where name of Muhammad Rafiq was given at serial No.51, while name of Muhammad Azam was given at serial No.46. The names of respondents 3 to 43 were given in said seniority list dated 12‑7‑1995 at serial Nos. 10 to 45 and 47 to

50. In view of this the petitioners moved applications to the respondent No.2 (The Secretary, Housing and Works, Islamabad) praying that their seniority be counted from the date of their appointment as Sub‑Engineers and not from the date of their placement in BS‑16, Ultimately, jurisdiction of Federal Service Tribunal was invoked by petitioners Muhammad Azam and Muhammad Rafiq who filed Appeals Nos.379(L) of 1995 and No.380(L) of 1995, respectively, Both the appeals were dismissed under the impugned judgment dated 11‑6‑1996. Hence these petitions. Hafiz Tariq Nasim, learned counsel for the petitioners argued that the seniority lists dated 3‑10‑1994 and 12‑7‑1995 were prepared contrary to section 8 of the Civil Servants Act, as amended. It was further argued that the provisional seniority list dated 5‑11‑1992 should be treated as final seniority list, as it did not evoke any objection. It was further argued that two Members of Federal Service Tribunal delivered the impugned judgment, while a contrary view was taken in an identical case viz Appeal No.288 of 1996 decided by three Members of the same Tribunal.' Section 8 of Civil Servants Act reads as below:‑‑

8. Seniority. ‑‑‑(1) For proper administration of a service, cadre of post, the appointing authority shall cause a seniority list or the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service; cadre or post, as the case may be. (2) Subject to the provision of subsection (1), the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service or cadre, whether serving in the same department or office or not, as may be prescribed. (3) Seniority on initial appointment to a service cadre or post shall be determined as may be prescribed. (4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that, civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post. Subsection (4) of section 8 shows that seniority of a civil servant promoted to a post shall take effect from the date of regular appointment to that post except that batch mates on their promotion shall retain their inter se seniority, as was in the lower post. It is worthy to mention that the Works Division had sought view of the Establishment Division, Government of Pakistan. The advice of the Establishment Division contained in a letter of Works Division dated 3‑2‑1991 reads as below: ‑ ?....the seniority list of Sub‑Engineer (Non‑Gazetted) prior to 1988 would remain in its original form irrespective of the decision of the Director‑General, Pakistan P.W.D. taken in 1988 and the seniority list will be formed on the basis of merits after, 1988.' "The Federal Service Tribunal under the impugned judgment after considering the relevant rules expressed itself in the following words:‑‑ A plain reading of the above quoted rule would show that the rule makers desired two different posts of Sub‑Engineer‑one of B‑11 and the other in B‑

16. It is true that number of posts in B‑16 was limited initially to 25 % and later to 33 % of the total posts of Sub‑Engineers but the rules definitely contemplate a separate 'unit' of Sub-?Engineers in B‑

16. If this had not been the import of Rules, 1984; then there was no occasion of issuing SRO 98(1)/92, dated 11‑2‑1992 whereby the concept of promotion to B‑16 was done away and instead the scheme of Selection Grade (B‑16) was introduced. As per new rule of 1992, the Selection Grade Posts were to be filled in on the basis of seniority‑cum‑fitness from amongst the Sub‑Engineers (B‑11). We, therefore, feel inclined to agree with Mr. F.E. Siddiqi counsel for the private respondents that having been promoted to B‑16 an independent unit in the cadre of Sub‑Engineer in accordance with the Recruitment Rules of 1981, the respondents got a right to count their seniority from the date of their regular promotion to B‑16.' In Appeal No.288(R) of 1996 (Ahmad Zaman v. Secretary, Establishment Division and others) the, Federal Service Tribunal took view as follows:‑‑ Section 8 of Civil Servants Act, 1973, provides that promotion can only be made to a higher post and seniority is to be recorded with reference to date of continuous appointment to a particular post. The pay revision rules do not determine these matters. Placement of the Sub‑Engineers in B‑16 against the 25 % or 33 % quota does not, therefore, mean that they have been promoted on regular basis. It does riot take away the right of seniority from the date of continuous appointment in a cadre/post of their seniors who passed/cleared the departmental examination later than their juniors.' Leave to appeal is granted in both the petitions to consider inter alia whether the view taken by the Tribunal in the impugned judgment and reproduced above was correct. "

15. Leave to appeal has been granted in Civil Appeals Nos.1823 and 1824 of 1997 and Civil Appeal No.218 of 1998, on the basis of above-?quoted leave granting order.

16. It appears that the above matters can be categorized as (a) Civil Appeals Nos.37. 38, 1178 to 1184, 1823 and 1824 of 1997 wherein the Tribunal had held that date of seniority should be counted from the date of placement/appointment in B‑

16. In other words the incumbents of the posts of Sub‑Engineer in B‑16 were treated senior to those holding B‑11 and (b) Civil Appeal No: 218 of 1998. Civil Petitions Nos.84 7 1182 and 1183 of 1997 wherein the matter of promotion to the posts of Assistant Executive Engineers in B‑17 was resolved to be made on the basis of length of service in B‑11 irrespective of passing of Departmental Examination and that seniority is to be counted from the date of initial appointment in B‑

11. In other words, this category exclusively relates to the promotion of Sub-?Engineers to B‑

17. The resolution by the Tribunal is that the respective dates of entry into service in B‑11 shall rule the lis for the purposes of promotion, to B‑17.

17. We have heard the respective counsel for the parties in the appeals as well as the petitions, except respondent No.7 in Civil Appeal No.218 of 1998 in which Ahmed Zaman has appeared in person. The learned counsel of both sides have placed reliance upon the following case‑law: ‑‑‑ (1) Dr. Badshah Gul v. Dr. Shafique Ahmed (1995 SCMR 1859), (2) Government of Punjab v. Muhammad Awis Shahid (1991 SCMR 696), (3) Abdul Mateen Khan v. N.‑W.F.P. (PLD 1993 SC 187). (4) Muhammad Arshad Sultan v. Prime Minister of Pakistan (PLD 1996 SC 771), (5) Muhammad Yousaf Chohan v. Sarfraz Khan Jadoon (PLD 1991 SC 514) and ' (6) Federation of Pakistan v. Manzoor Hussain (1998 SCMR 615).

18. The case of Dr. Badshah Gul (supra) deals with two groups of doctors who were earlier serving in Post‑Graduate Medical Institute (PGMI) at the Lady Reading Hospital, Peshawar vide Notification, dated 27‑8‑1984, Under a separate Notification, dated 30th December, 1984, a provision was made that there would be separate rules in respect of appointment and promotion of the teaching staff of P.G.M.I. and that a separate cadre for its teaching staff will be provided. The Government of N.‑W.F.P. by Notification, dated 15‑10‑1989 directed the amalgamation of the teaching cardres of Khyber Medical College (KMC) and P.G.M.I. In the matter of merger of K. M. C. and P. G.M.1. it was provided that inter se seniority of the holders of the posts shall be determined on the basis of. their continuous regular appointment to the posts. The joint seniority list circulated in that regard gave rise to the litigation between the two groups which was resolved in favour of the proposition that a civil servant senior in a particular grade shall under senior to his juniors in the lower grade. This Court allowed the appeals by holding that: "...Although the persons shown in the list did not object, does not mean that if before a final list seems to have been made basically on the basis of grant of grade and not the post. This was a basic mistake, which was corrected by the Provincial Government. The Tribunal was, therefore, not justified in observing that the Provincial Government was estopped from changing the seniority list. We therefore, set aside the Judgment of the Tribunal and allowed the appeal".

19. Out of the case‑law detailed in para 17 above, serial. Nos. 2 and 3 are authorities for the proposition that change of grade or scale of pay, for the better, is tantamount to promoting a civil servant. Cases at serial Nos.2 and 3 deal respectively with; (i) the proposition that whenever there is a change of grade or scale of pay for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after the consideration on the comparative suitability and the entitlement of those incumbents and (ii) change of grade to higher pay scale amounts to promotion.

20. As regards the precedents at serial Nos.3, 4 and 5 in para. 7 above, it would be sufficient to observe that in the former the question regarding seniority of civil servants on deputation from one department to another or from one cadre to another was involved. It was observed that if a person is sent on deputation after obtaining his option for the change to venue of the place of work, he will count his seniority from the date of his regular appointment at the said venue. "...However, where the transfer is compulsory or result of conscription or alone with the post and his work, he may count his previous continuous service in the grade towards seniority in that grade in the new office. "

21. Cases at serial Nos. 5 and 6 above deal with the question of determination grade‑wise seniority of civil servants and it was held that placement in a higher grade before the amendment in section 8 of the Act whereby the word 'grade' was omitted, will not amount to taking away the vested rights of civil servants unless the same course is mandated to be followed retrospectively.

22. Now the stage is set for considering the effect of the amendment introduce in section 8 of the Act in the year 1984 vide Ordinance No.III of 1984 with effect from 1‑7‑1983. After amendment, subsection (4) of 6 section 8 ibid reads as under:‑‑ "(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that civil servants who are selected for promotion to a higher post in one batch shall on their promotion to the higher post, retain their inter se seniority as in the lower post. " It may be noticed that before the amendment the seniority list of civil servants was prepared on the basis of such civil servants being members of a service, cadre or grade. After amendment of section 8, of the Act, the concept of preparation of seniority list of civil servants on basis of their being in a particular grade was done away with'. The parties here are not at variance with each other on the status of the rules applicable to their respective cases. The rules of 1984 and 1992 provide for treatment to be meted out of Sub‑Engineers in B‑11 and B‑

16. It was pursuant to the said Rules that the quota for promotion from B‑11 to B‑16 was increased from 25 % to 33 % . Put differently, the Rules definitely contemplated a separate unit of Sub‑Engineers in B‑16, It was rightly observed by the Tribunal in its judgment dated 11‑6‑1996 that " ....if this had not been the import of Rules, 1984, then there was no occasion of issuing SRO 98(1)/92, dated 11‑2‑1992 whereby the concept of promotion to B‑16 was done away (with) and instead the scheme of selection grade B‑16 was introduced. As per new Rules of 1992 the selection grade posts were to be filled on the basis of seniority-?cum‑fitness from amongst the Sub‑Engineers (B‑11).

23. The ratio of Dr. Badshah Gul (supra) is of little help to the parties seeking support for the proposition that the initial appointment in the cadre or post will be the determining factor for the purposes of inter se seniority between them. Here, the posts of B‑16 (selection grade) being separate units in themselves, did fall for their treatment as such. Even the amendments introduced in the rules in the year 1992, it was provided that 33 % of the total posts of Sub‑Engineers B‑11 shall be placed in selection grade B‑16 and the latter posts shall be filled in on the basis of seniority‑cum‑fitness from amongst the Sub‑Engineers who have completed 10 years service in the Department and have passed the prescribed departmental examination. It was for this reason that the Tribunal undertook the resolution of the question in that regard by observing that: "...thus, keeping in view both the rules, the judgment given by this Tribunal earlier, apparently conflicting nature, can be reconciled in a manner that prior to 1992 the placement of Sub‑Engineers from B‑11 to B‑16 was a promotion and not a selection grade, whereas after 13‑2‑1992 not only the quota of placement in B‑16 was increased but the placement was changed from promotion to the selection grade.". Looked at from this angle, it was rightly observed by the Tribunal that judgment dated 11‑6‑1996 goes a long Way in reconciling there above situation "...that having been promoted to B‑16 an independent unit in the cadre of Sub-Engineer in accordance with the Recruitment Rules of 1984, the respondents got a right to count their seniority from the date of their regular promotion to B-16?.

24. This was also a step augmentating the separate units in the service structure. As regards the category of cases about promotion to B‑17, it will be sufficient to observe that the observations of the Tribunal in its judgments dated 12‑11‑1996 (in C. A. 218/98), 11‑4‑1997 (in C.P. 847/97), 26‑7‑1997 (in C.P. 1182/87) and 4‑9‑1997 (in C.P. 1183 of 1997) cannot be sustained in that it is in direct conflict with the judgments dated 11‑6‑1996 (in C.As.37, 38, 1178 to 1184, 1823 and 1824/97) Put differently, the recognition of separate units in the concerned service structure will hold the field for the purposes of promotion to B‑17 on the requisite strength of service in that unit without the same having any nexus with the earlier service in B‑11 except for the cases where the secondment,? without the consent of the civil servant concerned, is in the filed.

25. In view of the above discussion, Civil Appeals Nos.37, 38, 1178 to 1184, 1823 and 1824 of 1997 are dismissed whereas civil Appeal No.218 of 1998 is allowed and the judgment of the Tribunal dated 12‑11‑1996 is set aside, Civil Petitions Nos.847, 1182 and 1183 of the 1997 are converted into appeal and allowed by respectively setting aside the judgments of the Tribunal dated 11‑4‑1997, 26‑8‑1997 and 4‑9‑1997. M.B.A./M‑348/S???????????????????????????????????????????????????????????????????????????????? Order accordingly.