2012 PLP 1093 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This order shall dispose of Civil Appeals Nos.773 to 781 of 2010 as they are directed against the same consolidated judgment passed by the Federal Service Tribunal.

2. Through these appeals, the appellants have challenged the judgment dated 12-5-2010 vide which their appeals against the order of the Departmental Authority were dismissed. The appellants who are Machinists in various grades in F-6 Rebuild Factory, Pakistan Aeronautic Complex; Kamra, feeling aggrieved of the order of the Departmental Authority whereby their juniors were granted Selection Grade and appellants were ignored, filed appeals before the Federal Service Tribunal contending therein that the inter se seniority of the employees had to be determined on joint seniority basis i.e. seniority of the employees working in different trades within the Kamra Aeronautical Complex had to be considered jointly for the grant of Selection Grade whereas the respondent Organization had granted the Selection Grade trade-wise.

3. Learned counsel for the appellants in support of the submissions made reference to the office memo dated 18-1-1992 issued by the Regulation Wing of the Finance Division of the Government of Pakistan as also the latter memo dated 30-9-1992 issued by the said Regulation Wing to contend that the expression "joint seniority list" appearing in the afore-mentioned latter memo means a list comprising of employees of the same grade in different trades within the Kamra Aeronautical Complex.

4. Learned Deputy Attorney-General defended the impugned judgment by submitting that the expression "joint seniority list" appearing in the memo dated 30-9-1992 meant a list of those officials/employees who hold a post either as direct recruits or as promotees but while considering the grant of Selection Grade, a joint list had to be prepared within the said trade. He further submitted that the afore-referred departmental construction of the expression "joint seniority list" is in vogue since 1996 and it remained unchallenged by the appellants and it is rather late in the day for them to make an issue out of it.

5. Having heard learned counsel for the appellants and learned Deputy Attorney-General and before dilating upon the issue raised, it would be in order to have an overview of the Organization where the appellants are employed and in the context in which the issue of Selection Grade has come up for consideration. Appellants are working as Machinists in BPS-12 in one of the four Factories/Units of the Pakistan Aeronautical Complex Kamra which comprises of the following Factories/Units:-- (i) Miraj Rebuild Factory (ii) Aircraft Rebuild Factory (iii) Kamra Radar Factory and (iv) F-6 Rebuild Factory.

6. All the four Units at the Kamra Complex as also Heavy Industry Taxila (GHIT) are under the administrative control of one and the same Chairman though each Unit has a separate Managing Director working under the said Chairman. In terms of the memorandum No.F.1(2)/R.1/91-D.1006 dated 25-8-1991, the Government of Pakistan placed 33 per cent posts of Diploma Engineers in the Federal Government in BPS-16 and thereby, the percentage of Selection Grade of the posts of Diploma Engineers was enhanced from 25 % to 33%. The terms and conditions for the grant of Selection Grade was laid down in memo No.F.1(2)/R.1/91-Pt dated 18-1-1992, which reads as follows:-- "Government of Pakistan Finance Division (Regulation Wing)

No. F.1(2)/R.I/91-Pt. Islamabad, the 18th January, 1992. OFFICE MEMORANDUM SUBJECT: SELECTION GRADE FOR DIPLOMA ENGINEERS The undersigned is directed to state that consequent on placing of 33% posts of Diploma Engineers in the Federal Govt. in BPS-16 vide Finance Division O.M. No.F.1(2)/R.I/91-D.1006 dated 25-8-1991, references have been received from various quarters as to the applicability of the said percentage and other allied questions. The matter has, therefore, been considered and the following clarifications are made to settle the issue in the Federal Government:-- (i) The benefit is applicable in all the Federal Govt. Ministries/ Divisions/Department including Pakistan Railways where the post of Diploma Engineer exists carrying prescribed qualification i.e. Matriculate; (ii) The Diploma Engineers were granted Selection Grade (BPS-16) to 25% of posts vide Finance Division O.M. No.F.1(24)NG.Imp.II/75-Dy. No.105/76 dated 19-2-1976 with the O.M. of 25-8-1991 referred to above the percentage of Selection Grade of the posts of Diploma Engineers has only been enhanced from 25% to 33%. (iii) Since this is not a new benefit, the same terms and conditions already in force prior to the present enhancement of percentage will remain applicable as such excent the increase in percentage w.e.f. 25-8-1991. (iv) The Provincial Govt. may if considered necessary adopt the benefit for their Diploma Engineers, the same terms and conditions.

2. The terms and conditions applicable on the Selection Grade allowed to 25% of the posts (which has been raised to 33%) are re-produced below for convenience:-- (a) Only regular posts of diploma engineers have to be taken into account for the purpose of calculating 25% posts in BPS-16, the regular posts mean both permanent and temporary posts. Temporary posts which have sanctioned for a period of not less than or there is a reason to believe that they will not terminate within a period of, three years or more will be taken into account for this purpose excluding temporary posts sanctioned for temporary jobs such as for execution of Projects. (b) 25% is to be calculated on the basis of total permanent and temporary posts (sanctioned on regular basis) of diploma engineers in Grade 11 to

15. However where a certain percentage of diploma engineers in Grade 11 are reserved for unqualified promotees, the number of such posts may be excluded for the purpose of calculation of number of posts in Grade-16. The unqualified promotees to BPS 11 could, however, be considered for promotion to BPS 16 in accordance with the service rules of the Deptt. concerned and subject to 10 years service and passing the prescribed Departmental Examination. (Emphasis is supplied) (c) The initial date of effect in such cases will be from the date of issue of this Division O.M. No.F.1(1)NG-Imp.II/76, dated the 19th February, 1976. Sd/- (Masood Iqbal) Section Officer (R.I)"

7. In continuation of the afore-referred memo yet another memorandum was issued by the Finance Division (Regulation Wing), the subject of which was "grant of selection grade to diploma engineer POF", which reads as follows:-- "GOVERNMENT OF PAKISTAN FINANCE DIVISION (REGULATING WING) No. 1488-Isp./92 Islamabad, the 30th Sep. 1992 OFFICE MEMORANDUM Subject:- GRANT OF SELECTION GRADE TO DIPLOMA ENGINEER POF. The undersigned is directed to refer to Finance Division's O.M. No.1(2)R.I/91-PT. dated 18-1-1992 on the subject noted above and to state that the case has been considered in the Finance Division and it has been decided that once promotee has been appointed to a post requiring diploma for direct appointment, he is equally entitled to selection grade like diploma holders. Selection Grade is to be given on the basis of joint seniority in a post and not on qualification. (Emphasis is supplied) Sd/- (Tahir Sajjad) Deputy Secretary (R.II)"

8. The afore-mentioned memorandum dated 18-1-1992 inter alia spells out that "the Diploma Engineers were granted Selection Grade (BPS-16) to 25% of posts", which was later enhanced to 33%; that this grant of Selection Grade was relatable to "posts" of various kinds in the Department/Organization. That is why in the Kamra Complex the number of Selection Grades granted have been categorized "post-wise" in the list prepared by it, a copy of which has been placed at page 59 (in C.A.773 of 2010). Even the number of posts available and the Selection Grades granted to 33% of posts within the said category have also been mentioned in the last column, which reads as follows:-- "STATE OF TOTAL SANCTIONED POSTS OF DIPLOMA ENGINEERS AS PER RECRUITMENT RULES S. No. Trade BPS Total Posts 33% of total post To be utilized for Section Grade Remarks 15 14 13 12 11 1 Airframe Fitter 7 11 21 39 12.87 13 2 Armament Fitter 1 2 4 7 2.31 2 3 Blacksmith 2 3 4 7 4 20 6.6 7 4 Carpenter 2 4 1 7 14 4.62 5 5 Compressor Operator 1 1 7 9 2.97 3 6 Draughtsman 2 4 6 1.98 2 7 Electric Fitter 3 10 3 31 1 48 15.84 16 8 Engine Fitter 1 1 2 4 1.32 1 9 Hobert Operator 2 4 6 1.98 2 10 Instrument Fitter 2 6 8 2.64 3 11 Machinist 4 19 9 58 6 96 31.68 32 12 Metal Worker 4 20 16 54 8 102 33.66 34 13 Moulder 1 1 2 0.66 1 14 MT Fitter 1 2 7 2 12 3.96 4 15 Photographer 1 1 2 0.66 1 16 Radar Fitter 1 3 4 1.32 1 17 Radio Fitter 1 3 3 7 2.31 2 18 Refg. Plant Operator 2 5 1 8 2.64 3

19. Welder 1 3 12 2 18 5.94 6 Total 28 80 44 236 24 412 135.96 138

9. The material placed before us further indicates that the number of posts which were granted Selection Grades "post-wise" are duly revised periodically ever-since 1997.

10. In continuation of the memo No.F.1(2)/R.I/91-Pt dated 18-1-1992, another memo was issued bearing No.1488-Isp./92 dated 30-9-1992, which too has been reproduced in para 7 above. This memo clarifies that even a promotee is eligible for the grant of Selection Grade "once promotee has been appointed to a post requiring diploma for direct appointment, he is equally entitled to selection grade like diploma holders. Selection Grade is to be given on the basis of joint seniority in a post of and not on qualification." It was in accordance with this clarification that a "joint seniority list" is issued where Machinists working in various Units of the Kamra Complex have been granted Selection Grades subject to their meeting the threshold provided in the afore-referred memorandums. This is evident from the list attached in C.A. 773 of 2010 at page 55, page 1 of which reads as follows:-- "LIST OF MACHINISTS OF JOINT SENIORITY DIPLOMA ENGINEER IN BPS-11 TO 15

10. The appellants have tried to confuse the expression "joint seniority list" by construing that it meant that seniority list of employees of a certain grade in various units of Kamra Complex irrespective of the category of posts be prepared and Selection Grade be granted accordingly. This was neither the intention of the Rule Making Authority nor it was ever so construed by the Department for the last more than two decades.

11. Both the afore-referred lists have been prepared strictly in accordance with formula/instructions laid down in the two office memorandums to which reference has been made in para 8 above. Learned counsel has not pointed out as to how these lists are violative of those instructions to warrant interference. It is not disputed that the "joint seniority list" and the Selection Grade is being given in accordance with the afore-referred formula ever-since 1996 and it remained unchallenged. We have not been able to persuade ourselves to agree with appellants that there has been any miscalculation, either in the number of posts available for the grant of Selection Grade within a "post" or a "trade".

12. In the afore-referred circumstances, the impugned judgment is unexceptionable. More so, when no question of law of public importance within the meaning of Article 212(3) of the Constitution has been raised either. In this view of the matter, we do not find any merit in these appeals, which are dismissed. M.W.A./G-11/SC Appeals dismissed.