1994 PLP (C (PLC(CS))

3. The appeal was admitted subject to all just exceptions on 20‑1‑1994. In the meantime, Ch. Muhammad Amin, AEE, Pak. PWD through his counsel Mr. Shah Abdur Rashid, on 27‑3‑1994 fled an application to implead him as party in the appeal. This miscellaneous application came up for hearing before a Bench of this Tribunal on 30‑3‑1994 who heard this application and passed the following order:‑‑ "Hafiz SA. Rehman, Advocate, who till today was the Standing Counsel appearing on behalf of the Government has resigned from the post of Standing Counsel and has been relieved of his duties. His substitute has not appeared to defend the case. In the absence of learned Standing Counsel, it will not be just and fair to hear the case. Adjourned. To come up in due course of time. (2) Wrt hearing/acceptance of the M.P. 42/94 moved by the Intervenors i.e. learned counsel Shah Abdul Rashid and Mr. Fazal Ellahi Siddiqi for making their clients as parties, the learned counsel Mr.Manzoor Ali Khan from Karachi has stated at Bar that on the next date of hearing only the M.P. 42/94 from the intervenors should be heard and disposed of as his co‑counsel Ch. Fazal Hussain will plead the M.Ps. The regular hearing of the appeal be fixed on a later date, as Mr. Manzoor Ali Khan has to come from Karachi and it will be more expensive for the appellant to provide him air ticket now and then. (3) It is, however, made clear to the learned counsel that it will be up to, the next Bench of the FST who hears the said M.Ps. on the next date and the Bench may as well hear both the M.Ps. and the appeal, if there is enough time and convenient for them. In any case, on the next date of hearing parties should come well prepared for the M.Ps. and for regular hearing of the appeal. Thereafter the appeal came‑up for regular hearing on 10‑5‑1994 when it was adjourned at the request of the parties and again on 26‑5‑1994 preliminary objection was raised by the learned counsel for the respondents that the appeal is incompetent and is hit by the Service Tribunals Act, 1973 as an identical Appeal No.274(K)/93 filed by Mr. Khalid Qureshi was dismissed. However, the appeal was adjourned and it carpe up for regular hearing on 28‑6‑1994.

4. At the outset, Mr. Shah Abdur Rashid, the learned counsel for Ch. Muhammad Amin, the intervenor, submitted that his application for impleading his client as intervenor may be decided first. On this, we also heard Mr. Manzoor Ali Khan, the learned counsel appearing for the appellant. It was made clear in the order dated 30‑3‑1994 that miscellaneous application and the appeal are to be heard together. In these circumstances, there was no objection from either side if we start hearing the appeal and formally allow the application of Ch. Muhammad Amin to implead him as party in spite of the fact that Mr. Shah Abdur Rashid, Advocate was being heard from time to time and there was no objection for allowing this application for impleading Ch. Muhammad Amin as intervenor. As such, we allow this application and order that Ch. Muhammad. Amin be impleaded as intervenor in this appeal.

5. The department has filed comments and Mr. M. Javid Aziz Sandhu, the learned Standing Counsel has appeared for respondents 1 and 2.

6. Mr. Manzoor Ali Khan, the learned counsel for the appellant argued that in the first instance the appellant is governed by 1951 Rules whereby time limit for passing the departmental examination was not fixed, therefore, he cannot be deprived of his promotion to the post of Executive Engineer (B‑18) on this ground. It is further contended that 1951 Rules were repealed and in the year 1984, recruitment rules were framed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and under para. 7 thereof, the incumbents were required to pass the departmental examination within five attempts. However, this clause (para. 7) was deleted in the year 1989, and the appellant having passed the departmental examination in 1989, he could not be deprived of his due right for promotion in that year. It is argued that the policy decision of the Committee giving protection to those who passed the departmental examination within 5 attempts, to be considered for promotion over and above the appellant, is illegal, ultra vires as it has no force of rules/law. He cited PLD 1980 SC 152 on the proposition that the recommendations of the Committee with regard to promotion policy affecting the terms and conditions is appealable and this Tribunal has got the jurisdiction.

7. Mr. Shah Abdur Rashid, Advocate for the intervenor has raised two preliminary objections ‑‑ firstly that the appeal is time‑barred and secondly that if the policy decision is upset by the Tribunal, then his client alongwith 21 others would be affected and they being necessary parties; have not been impleaded as party, therefore, this appeal is liable to be dismissed on both grounds. It is argued that the Committee constituted was only to the extent of interpretation of these rules and this has not caused any amendment in the rules, therefore, it is within the power of the Government to make modification or interpretation of the rules or deletion of any particular clause in the rules as deemed fit and proper.

8. Mr. M. Javid Aziz Sandhu, the learned Standing Counsel for respondents 1 and 2 has adopted the' arguments of Mr. Shah Abdur Rashid, Advocate.

9. The salient features of this appeal are that the appellant was appointed in 1982 on probation for two years as Assistant Executive Engineer in BPS‑17, as already stated in .the facts of this appeal. He had not qualified or appeared in the departmental examination as was required to do. The consequence of his not clearing the examination was that he was not entitled to increments from ceiling of Rs.400 at that time and the contention of Mr. Shah Abdur Rashid, the learned counsel for the intervenor is that since he was not allowed the benefit of increments, then his promotion as XEN could hardly be made until and unless he fulfilled the requirements and continued to draw the increments and reached to that extent. There is force in this contention but fact is that in spite of appellant not having cleared departmental examination was allowed to cross Rs.400 limit and drawing increments for which he was not entitled. The arguments of Mr. Manzoor Ali Khan, Advocate for the appellant? is that the appellant is still to be governed by 1951 Rules. On the introduction of the Civil Servants Act, 1973, the 1951 Rules were repealed and 1984 Rules were framed for which the Government is fully competent and there could be no cavil about it and Mr. Manzoor Ali Khan, on our query, also candidly stated that the Government can frame rules. The question is that when these rules came into operation on 11th October, 1984, the appellant was still on probation for two years and by that time the appellant had not cleared the departmental examination. In paragraph 11 of the memo of appeal, the appellant has stated that subsequent to the appointment of the appellant as AEE in 1982, the Pak. PAID held the departmental examinations in the following years: August, 1983 January,??????????? 1984 July, ??????????????? 1984 January,??????????? 1986 July,???????????????? 1987 February,???????? 1988 March, ??????????? 1989 According to the appellant, he cleared the departmental examination in 1989 in four chances which is not correct. The notification whereby clause 7 was deleted was issued on 2nd July, 1989, and the appellant cannot get the benefit of this deletion as he cleared the examination within 6 attempts. As such, we will have to consider whether Rules of 1951 or 1984 will be applicable to the appellant's case. As stated above, according to 1951 Rules, the appellant was to pass the departmental examination within the specified period and failure to do so was to deprive him of the benefit of increments, but according to 1984 Rules, it was incumbent upon the appellant to have passed the departmental examination within 5 attempts which admittedly he did not, but the department for the reasons best known allowed him concession for appearing in six attempts otherwise he could have lost the job in 1988 or 1989 as he could not qualify. In both these circumstances, there is clear non‑compliance of, the Rules 1951 and 1984. If the contention for, the appellant's counsel is accepted that he was to govern by 1951 Rules, then we are sorry and without hesitation to say that he is not qualified at all for promotion as he was not also entitled to the future increments, but we disagree to this proposition, as the Government was competent to make rules in 1984 and those rules were very much applicable to the appellant's case and the appellant realising this position tried to clear the examination in 1989 and succeeded. The policy decision 'taken by the Committee is the interpretation of rules and it was decided that those who pass the departmental examination during 5 attempts and within fore? corners of 1984 Rules, were entitled to be considered first for the promotion to B‑

18. This decision has neither upset the rules framed by the Government nor has jeopardised the interest of the appellant, and in our view .the Government cannot be debarred from clarifying the position with regard to recruitment rules framed from time to time. Furthermore, it is hardly difficult to make rules for individual cases except to issue the policy decision that how this has to be considered and we do not find any violation of law when the admitted facts are that the persons who did not care to qualify the departmental examination in five attempts and also given concession and were to lose their services under the rules, but the Government considered to grant them exemption, but it is difficult that they should also continue in service and also get priority of promotion over the persons who fulfilled the requirements of promotion. The recommendations made by the Committee as contained in paragraph 6 which has been reproduced earlier in para. 1 above. It is thus clear the recommendations of the Committee are policy decisions, of course, subject to approval by the Prime Minister and in no way affect the interest of the appellant when he himself was careless and was not inclined to fulfil the requirement of passing the departmental examination within the stipulated period and he has been benefited by continuing in service when not passed examination in five attempts and drawing increments though under 1951 Rules without passing examination should not have allowed increments consequently he could not be considered for promotion.

10. The admitted position is that the appellant is not senior most AEE to be considered for promotion and his name appears at S.No. 10 in the seniority list and Mr. Manzoor Ali Khan, the learned counsel for the appellant has categorically stated that some persons senior to him were promoted in 1992 but the appellant anticipates that the recommendations of the Committee might come in his way, therefore, he has filed this appeal. We are sorry that at this stage irrespective of other reasons, as stated above, the appellant is not aggrieved person for the purpose of promotion but in the larger interest of the civil servants, it has become imperative for us to give a detailed pronouncement with regard to the rules when the vires of this decision were challenged by the appellant. Earlier the appeal filed by Mr. Khalid Qureshi No.274(K)/1993 was dismissed by this Tribunal in limine by judgment dated 2‑3‑1994 as all these facts relating to interpretation of policy decision and the rules were not brought to our notice and this appeal cannot be dismissed on the principle of res judicata as now we have discussed' in detail new points raised before us. Furthermore, the appeal was admitted subject to all just? exceptions. The objection of Mr. Shah Abdur Rashid, Advocate has got some force and it is contended that this policy decision was not communicated to the appellant and he has no cause of action, but since vires of rules has been challenged and question of law was involved in this appeal, we are not inclined to dismiss this appeal on the point of limitation when in paragraph 14 of the FACTS of the memo of appeal, the appellant has categorically stated that he came to know about the policy decision in the second week of September, 1993 when the Establishment Division communicated the decision of Works Division, whereafter he filed departmental appeal to the Prime Minister on 15‑9‑1993 and then he filed this appeal before the Tribunal on 13‑1‑1994, and the appeal is not time‑barred. With regard to other objection of non ?impleading of necessary parties, we have heard Mr. Shah Abdur Rashid, Advocate and this will not affect any person and it is only a question of interpretation of rules.

11. Upshot of the above discussion is that the appellant shall be governed by the 1984 Rules, instead of 1951 Rules, which stood repealed, as well as the other Rules framed by the Government from time to time, and the appeal being devoid of merit is dismissed, with no order as to costs.

12. After the conclusion of the arguments of the parties when the appeal was reserved for judgment, M/s. Muhammad Aftab, Nazir Ahmad and Shahid Hussain, filed applications on 30‑6‑1994 separately for impleading them as necessary parties in the appeal filed by Mr. Mushtaq Ali Zaka. We are sorry, we cannot entertain these such belated applications when the parties have been heard and the appeal has been reserved for judgment. In case they wanted to move such applications, they could have done so before the regular hearing as was done by Mr. Ch. Muhammad Amin, intervenor, whose application was heard and allowed. All these applications are, therefore, rejected. A.A/971/Sr.F ????????????????????????? ??????????????????????????????????????????????? ??????????? ?Order accordingly.