1993 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑The facts of this appeal are that the appellant Mr. Aijaz Ahmed was selected by the Federal Public Service Commission in the year 1982 from Sindh (Urban) quota in 10th Common Batch and was allocated to the District Management Group. On completion of his training, he was posted in various places in B‑

17. He was promoted to B‑18 with effect from 27‑2‑1990, while the respondent Mr. Iqbal Ahsan Zaidi of his own batch was promoted from 22‑5‑1988, and according to the Gradation List of Grade‑18 Officers, the respondent's name appears at S. No. 191 and that of the appellant at S. No.

228. In this appeal, the appellant has prayed as under:‑‑ "(c) after hearing the parties order correction of the seniority position of the appellant in Grade BS‑18 by placing his name above the name of Mr. Iqbal Ahsan Zaidi/respondent No. 3 and below the name of Mr. Zaheer Raja Sr. No. 191, in the impugned seniority/gradation list so as appellant's seniority position according to his merit in BS‑17 is maintained‑and followed in higher cadre i.e. BS‑18 in view of the fact that the appellant was not superseded but deferred for his promotion to BS‑18." According to the appellant, he preferred a departmental representation dated 24‑3‑1991, which remained un-responded. He then filed this appeal on 21‑7‑1991.

2. We have heard Mr. Manzoor Ali Khan, the learned counsel appearing on behalf of the appellant at length. The only question for determination in this appeal is of seniority of the appellant in B‑18 which has been denied to him because he could not clear the departmental examination within three attempts specified in the rules. This fact is not denied by the appellant who was present in person. Mr. Manzoor Ali Khan has vehemently argued that in the year 1988 the appellant was holding executive posts and was busy in elections as well as in rehabilitation matters due to floods. Therefore, he could not clear one paper within `three attempts but finally he cleared the examination in fourth attempt. He relied on the guidelines contained in the General Principles of Seniority paragraph B(i)(b) that the circumstances were beyond the control of the appellant due to which he could not clear the examination. As such, he is entitled to seniority under proviso (ii) ibid, because he was senior to the respondent No. 3 in B‑

17. He argued that his case should have been treated a: deferred one and subsequently he having qualified the examination was entitled to regain his original seniority in B‑18.

3. Mr. Niaz Ahmed Khan, the learned Standing Counsel for the Government contended that the appellant was superseded on the ground of his having failed to qualify the requisite examination within the permissible attempts and his services could have been terminated but instead he was superseded and his case is not of deferment.

4. The letter of appointment of 'appellant, dated 28th August, 1982 contains the following conditions: (i) You will be on probation for a period of two years which may be extended after the expiry of this period at the discretion of the Government. The probation period, however, shall not expire until you have passed the prescribed examination. (iv) On completion of your training in the Academy and the Army attachment, you will be given on the job or specialized training as may be prescribed. This training may be followed by a Departmental examination. (vi) If you fail to qualify in any of the examinations mentioned in sub‑paras (i) and (iv) above, or your conduct or performance during the probation period is not satisfactory, your service will be terminated without notice." The undisputed fact is that the appellant could not clear the departmental examination within three attempts as required under the rules. The appellant was asked to show any document that he ever made any request that he was awfully busy in his arduous job and could not appear in the examination, but he could not do so it was on this ground that he was superseded and rightly so when the respondent No. 3 was granted promotion to B‑

18. Therefore, his case does not fall in the category of the circumstances which were beyond his control and it was not a case of deferment.

5. Occupational Groups and Services (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. A.A./854/Sr.F Appeal dismissed.