1997 PLP (C (PLC(CS))

Ch. Ghulam Hasan Gulshan, Advocate Supreme Court for Appellants. Hafiz Tariq Nasim, Advocate Supreme Court for Respondent. Date of hearing: 26th March 1997. ZIA MAHMOOD MIRZA, J.‑‑‑This appeal by leave of the Court is directed against the judgment of Federal Service Tribunal dated 25‑2‑1993 whereby appeal of the respondent, a WAPDA employee, was allowed and it was directed that his case "shall be considered for promotion in B‑17 on the basis of diploma of Associate Engineer he holds".

2. Facts relevant for the disposal of this appeal briefly are that the respondent, a diploma holder in the Technology of Drafting and Designing, joined WAPDA as Field Attendant in August, 1975 in B‑

5. He was later appointed as Overseer in May, 1976. He passed the departmental promotion examination in 1985 and was promoted/placed‑in B‑16 in May, 1986. At his request, his name was included in the seniority list of Sub‑Engineers (Civil) (Grade‑16) and placed at section No.25.

3. It appears that the cases of Sub‑Engineers for promotion to the post of Assistant Engineers B‑17 were considered and by order-dated 20‑8‑1991, those found fit were promoted to B‑

17. The respondent was, however, not considered for promotion presumably for the reason that he was having a diploma in Drafting and Designing. He made a representation to the Chief Engineer (Adorn.), Water, which was forwarded by Director‑General (ACOP) recommending his case with the observation "Mr. Khushi Muhammad is a three years diploma holder and has passed the Water Wing Departmental Professional Examination in December, 1985 (copy enclosed) and was placed in BPS‑16 with effect from 4‑5‑1986. He is working in this organization, in the capacity of Sub‑Engineer (Civil) for the last 15 years, and his work and conduct throughout the service is quite satisfactory " The representation was, however, rejected by the Chief Engineer (Admn.) on the ground that the promotion to the post of Junior Engineer against 20% quota is to be made on the basis of seniority‑cum‑fitness from amongst the Sub Engineers possessing Diploma or a Certificate of Overseer from any recognized institute while the respondent possesses the Diploma of Draftsman (Drafting and Design).

4. Feeling aggrieved, the respondent preferred an appeal before the Service Tribunal praying that the WAPDA Authorities be directed to consider him for promotion to B‑17 on seniority‑cum‑fitness basis. The Tribunal accepted the respondent's appeal vide the impugned judgment holding that he was holding Diploma of Drafting and Designing when he was directly appointed as Overseer in 1976. He passed the departmental professional examination while he was working as Sub‑Engineer at Kot Addu and was placed in B‑16 with effect from 4‑5‑1986 on the basis of his having 10 years service and fulfilling other conditions. It was observed by the Tribunal that the department when placing the respondent in B‑16 did not disqualify him for the promotion but at the time of his promotion to B‑17, an objection has been raised that he should have Diploma or a Certificate of Overseer. It was further observed by the learned Tribunal that the respondent had all along been working as Sub‑Engineer. The Department in its comments "failed to substantiate the point as ~to what sort of work was assigned to the appellant on the basis of Diploma he was holding". In the circumstances, the Tribunal held that it was unjust and unreasonable to raise objection of technology at such a belated stage.

5. Leave was granted to the appellants to consider the contentions raised by then "firstly that respondent is not eligible to be promoted as Assistant Engineer, Civil or Mechanical, as he does not hold diploma in anyone of the technologies as contemplated under Rule 5(2)(a)(ii) (iii) of Pakistan WAPDA (Water Wing) Service of Engineers Rules 1968. Secondly, placement in BPS‑16 did not qualify respondent for promotion in the absence of diploma in the relevant technology in which vacancy occurred".

6. We have heard the learned counsel for the appellants. He has reiterated the contention raised at the leave‑grant stage viz the respondent being holder of Diploma in Drafting and Designing is not eligible to be promoted as Assistant Engineer, Civil or Mechanical. According to the learned 'counsel, only the holders of Diploma in one of these technologies can be considered for promotion as Assistant Engineer, Civil/Mechanical. Our attention has been drawn by the learned counsel to sub‑rule (2)(a)(ii) of Rule 5 of Pakistan WAPDA (Water Wing) Service of Engineers Rules, 1968 as amended which reads as follows: ‑‑ (ii) 20 % vacancies be filled by promotion on the basis of seniority‑cum‑fitness from among the Sub‑Engineers possessing Diploma or a Certificate of Overseer from any recognized institute provided they are in BPS‑16, having minimum service of ten (10) years, and have passed the Water Wing Professional Examination." The afore‑quoted sub‑rule provides that 20 % vacancies shall be filled by promotion from amongst the Sub‑Engineers who possess Diploma or a Certificate of Overseer from any recognized institute provided they are in BPS‑16, have minimum service of ten years and have passed the Water Wing Professional Examination. This sub‑rule, which lays down the eligibility criteria for promotion simply talks of Diploma and does not make any distinction between the Diploma of one technology or the other. It cannot, therefore, be interpreted as laying down that in order to be eligible for promotion to the next higher post in one technology, say civil or mechanical, the Sub‑Engineer must hold Diploma in that particular Technology. No other rule has been cited before us which would justify or support the petitioners' contention that a Diploma holder in Drafting and Designing cannot be considered for promotion in other technologies like Civil, Mechanical or Electrical. It may pertinently be pointed out at this stage that the respondent, a Diploma‑holder in Drafting and Designing had earlier been promoted/placed in BPS‑16 and his seniority too was fixed with other Sub‑Engineers and at that time, no objection was raised on the basis of technology. Confronted with this position, learned counsel sought to argue; that only those Sub‑Engineers were eligible for promotion who had a Certificate of Overseer from any recognized institute. This argument runs counter to the plain language of the afore‑referred sub‑rule, which clearly provides that the promotion is to be made from amongst the Sub‑Engineers possessing Diploma or a Certificate of Overseer from any recognized institute.

7. In the aforesaid view of the matter, the respondent who admittedly was a Diploma‑holder through in Drafting and Designing and fulfilled other conditions specified in the afore‑quoted sub‑rule was quite eligible for promotion against 20% quota and it has been rightly so held by the Service Tribunal. His case should, therefore, have been considered for promotion along with other Sub‑Engineers. Needless to observe that eligibility is different from fitness which the Selection Board or D.P.C. determines keeping in view the entire service record and over‑all performance of an officer.

8. Upshot of the above discussion is that we find no merit in this appeal, which is accordingly dismissed but with no order as to costs. A.A./W‑161/S Appeal dismissed.