1981 PLP 351 (PLC)

recruitment conditions for promotion 4 5 A Degree in Mechanical and Electrical 1. 75 % of the posts will be filled Engineering from a recognised. in from outside and departmental Institute or A. M.1. M. E. (London). hands otherwise eligible for these or Institute or organisation recog‑ post may be allowed to compete nized by the Government or any with outsiders. other equivalent qualification. 2. 25 % of the posts will be filled by promotion of the qualified departmental overseers on the basis of seniority‑cum‑fitness.

3. It is an admitted position that the post of Assistant Engineer (Mechanical), to which the third respondent has been promoted, is from the quota of posts reserved for promotion. As provided in the item reproduced above these posts are to be filled by promotion of qualified departmental Overseers/Sub‑Engineers on the basis of seniority‑cum‑fitness. Mr. Dasti Muhammad Ibrahim, the learned counsel for the second respondent, submitted that seniority for the purposes of promotion to the grade of Assistant Engineer (Mechanical) is to be computed from the date that an official, who is in the service of the K. D. A, has passed the qualifying examination. His contention, in other words, was that it is not the length of service in the immediately lower grade, i. e. Overseer/Sub‑Engineer, that determines seniority for the purposes of promotion, but the date of qualifying the Engineering Diploma, which is the basic qualification for promotion as Assistant Engineer (Mechanical). I regret tfat I see no force in this contention. if the view of the learned counsel was strictly adopted, `A' who might have qualified in the Engineering Diploma in 1970 but joined service in the K. D. A. as an Overseer/Sub‑Engineer in 1979 would be senior for the purposes of promotion to the rank of Assistant Engineer (Mechanical) to Overseer/Sub‑Engineer in the K. D. A. who was appointed in the year 1970 but who passed his Diploma in the year 1980. In the absence of any specific provision to the contrary it is not possible to adopt any such tin‑reasonable interpretation. The seniority Rules contained in the K. D. A. Regulations also do not support the contention of Mr. Dasti Muhammad Ibrahim and on the contrary support the opposite view Regulation 33 deals with seniority and the relevant portion thereof reads as follows :‑ "

32. Seniority.‑(1) Seniority‑interse of the employees in various Classes and Grades of service shall be determined as under :‑‑ (a) Seniority in a cadre shall ordinarily be determined with effect from the date or entry into that cadre except in the case of the Superintendents of the Accounts Department of the Authority, where qualified Super intendents will take precedence over unqualified Superintendents each qualified Superintendent taking his place according to the date of his passing the requisite departmental examination, such date being the day next to the holding of the examination at which the employee appeared and passed. (b) In the case of employees appointed by initial recruitment, seniority will be determined in accordance with the order of merit assigned by the Selection Committee appointed for that purpose : Provided that the person placed higher in the order of merit but joining later satisfies the competent authority that the delay in his joining was for reasons beyond his control, otherwise he shall rank as junior to the person or persons joining earlier : Provided further that persons selected for the service in an earlier selection shall rank Senior to the persons selected in a later selection."

4. It will be seen that the basic rule of seniority as laid down in the aforesaid Regulation is that seniority in a cadre shall ordinarily be determined with effect from the date of entering into that cadre. The sole exception prov ided in the rules is in the case of Superintendents of Accounts Department where qualified Superintendents are to take precedence over non‑qualified Superintendents each qualified Superintendent taking his place according to the date of his passing the requisite examination. If seniority for the purpose of promotion to the grade of Assistant Engineer (Mechanical) was to be computed from the date of passing the qualifying examination, as contended by Mr. Dasti Muhammad Ibrahim, a similar exception in this regard would have been provided in the rules as in the case of Superintendents in the Accounts Department. Since no such exception has been made in respect of Assistant Engineer (Mechanical) the ordinary rule of seniority, i. e. the date of entering in to the cadre, will be the deciding factor. Since the appellant was appointed as Overseer/Sub‑Engineer in‑the year 1954 while the third respondent was appointed in that grade in 1960, the third respondent is decidedly junior in the grade of Overseer/Sub‑Engineer to the appellant. The fact that the third respondent had passed his qualifying examination earlier than the appellant or that at the time of his entering in the service as Overseer,/Sub‑Engineer he had already passed the qualifying examination makes no difference, of course, if at the time of making promotion to the post of Assistant Engineer, the appellant had not qualified in the Engineering Diploma he would not be eligible for promotion and could then have been rightly ignored. However the appellant qualified in the Engineering Diploma in 1965 and became eligible for promotion to the post of Assistant Engineer from the date of so qualifying, according to his seniority in the immediately next grade of Overseer/Sub‑Engineer.

5. The Department appears to have adopted the view that there are two separate grades of Overseers/Sub‑Engineers, those who are qualified and those who are not qualified. This distinction is not supported by the K. D. A. Regulations as there is only one grade of Overseers/dub‑Engineers No doubt, according to the K. D. A. Regulations the minimum qualification on which an Overseer/Sub‑Engineer is appointed is Diploma in Engineering but it may be pointed out that the appellant was appointed in 1954 as Overseer/Sub- Engineer long before the Regulations of 1973 were framed.

6. It may also be pointed out that the criteria for promotion to the rank of Assistant Engineer (Mechanical) is not seniority alone but also fitness. It is ordinarily for the Department to assess the ability of a person for promotion. However, it is not contended by the respondents that the appellant was not fit for the post. In fact the appellant bad previously acted in the said post. As such, I take the view that the appellant had been wrongly ignored for promotion to the post of Assistant Engineer (Mechanical), for which he was tightly eligible and was in fact entitled by reason of his qualifi cation, seniority and fitness.

7. For the reasons stated by me above. I would set aside the impugned order of the learned Labour Court, allow the grievance petition of the appellant and direct respondent No. 2 to promote the appellant as Assistant Engineer (Mechanical) in place of the third respondent. Petition allowed.