1993 PLP 1010 (SCMR)

SAAD SAOOD JAN, J.‑‑‑These are eight appeals by special leave from the judgment dated 11‑10‑1986 of the Punjab Service Tribunal. These appeals arise in the following circumstances.

2. The respondents in these appeals are diploma‑holders from the School of Engineering, Rasool. They joined service as Overseers in the Irrigation Branch of the Public Works Department of the Punjab Government and, except Malik Muhammad Mukhtar and Chaudhry Ali Ahmad, they were confirmed in their appointments before the establishment of the Province of West Pakistan in October, 1955. Later they became employees of the West Pakistan Government. They were promoted as Sub‑Divisional Officers on different dates falling between 1959 and 1969 on officiating basis. They claimed that their appointments as Sub‑Divisional Officers were made against substantive vacancies in accordance with the Punjab Service of Engineers, Class‑II (Public Works Department, Irrigation Branch) Rules, 1941, hereinafter called the Rules of 1941; as such, they were holders of substantive posts of Assistant Engineers and, for that reason, in the seniority list of Assistant Engineers of Class‑II they were entitled to appropriate positions in accordance with the dates of their continuous officiation as Sub‑Divisional officers; and, further, they were eligible for promotion to the posts of Executive Engineer.

3. The claim of the respondents did not meet with any favourable response from the Provincial Government whereupon they filed appeals before the Provincial Service Tribunal. Their appeals were heard by the Chairman and two members of the Tribunal. The Chairman and one of the members delivered the majority judgment by which the appeals were accepted and a direction was given to the Provincial Government to determine the seniority of the respondents in class‑II service with effect from the dates of their continuous officiation as Sub‑Divisional Officers and also to consider them for promotion as Officiating Executive Engineers on merits. From the judgment of the learned Tribunal the Provincial Government as well as some of the officers who were affected thereby have come in appeal to this Court.

4. It is common ground between the parties that at the time when the Province of West Pakistan came into existence the respondents were holding the posts of Overseers in the Overseers Engineering Service, Irrigation Branch, Punjab. Their promotion to the Service of Engineers Class‑II was to be regulated by the Rules of 1941. Under the said rules the appointments to class‑II service were to be made either by direct recruitment or by promotion of those belonging to the Overseers Engineering Service. The rules did not specifically make any reservations for the promotees vis‑a‑vis the direct recruits. However, on the formation of the Province of West Pakistan the Government of the new Province issued a circular on 25‑11‑1955, known as the Integration Circular. This circular reserved 75% of the posts in Class‑II of the Engineering Service in the Irrigation Branch for direct recruits. The respondents were promoted as Sub‑Divisional Officers on an officiating basis between 1959 and 1969. In 1967, before they could be confirmed in these posts, the West Pakistan Irrigation Engineering Service (Class‑II) Rules came into force. These Rules known as Rules of 1967 (Class‑II) reconstituted the Service of Engineers, Class‑II. Rule 8(b) thereof further reduced the quota of the promotees in the service to 20%. Thus, the respondents could claim promotion on permanent basis to Class‑II Service only if they fell within this quota. In view of the quota fixed by the Rules for promotees for the purpose of appointment to Class‑II Service, the mere length of service of the respondents as officiating Sub‑Divisional Officers would not by itself convert their appointment as made on substantive or permanent basis. Without first finding out if the promotion of the respondents fell within the quota of the promotees the learned Tribunal could not of its own declare that their appointment as officiating Sub‑Divisional Officers was against permanent posts and on substantive basis. In fact, this exercise was still being carried out by the Irrigation Department as will appear from its letter, bearing No. Estt.l/P.S.T: 3/84, dated 10‑8‑1986 sent to the Registrar of the learned Tribunal about two months before it announced its judgment. The relevant extract from the letter reads as follows: "The petitioners are however eligible for absorption as Assistant Engineers (Class‑II) under rule 8(b) of the West Pakistan Irrigation Engineering Service (Class‑II) Rules, 1967 under the prescribed quota of 20% and the case for the same is being processed." In this letter the Department also stated that a period of 30 to 45 days would be required to complete the exercise. For reasons not available on the record the Department did not do so within the said period.

5. It is also to be noticed that the promotion of respondents to Class‑II could only be made with the approval of the Public Service Commission. So far as Messrs Abdul Majid and Chaudhry Ali Ahmad, respondents, are concerned a copy of the letter of the Public Service Commission has been placed on the record. It will appear from this letter that the approval accorded by the Commission was only of an ad hoc nature for filling the posts of Sub‑Divisional Officers on a temporary basis. This can hardly be regarded as an unqualified approval. So far as the other respondents are concerned the terms in which the Public Service Commission granted its approval have not been shown to us.

6. It is no doubt true that the Irrigation Department has been remiss in working out the vacancies against which promotions could be made to Class‑II Service from among the officials belonging to the Overseers Engineering Service. This is indeed a grave lapse. However, in an earlier matter which came up before it the learned Tribunal itself worked out the vacancies and granted relief to the members of the Overseers Engineering Service. See Secretary to Government of the Punjab v. Mushtaq Ahmad (1985 SCMR 689). In the appeal before us the learned Tribunal declared the respondents as having been appointed on a permanent basis without carrying out a similar exercise. We are therefore unable to support its order in this regard.

7. The answer to the question whether, being non‑Graduates in Engineering, the respondents were eligible to promotion to Class‑I Service depends upon the dates of their joining Class‑II Service and the period when the vacancy in Class‑I became available. It is to be noticed that recruitment to Class‑I Service is governed by the West Pakistan Irrigation Engineers Service (Class‑I) Rules, 1967. Rules 7, 8 and 9 make members of Class‑II Service who may or may not be engineering graduates eligible for promotion to Class‑I in respect of certain vacancies. Until the matter of respondents' promotion to Class‑II Service is first settled by the learned Tribunal in accordance with the rules and the vacancies against which they may be eligible for promotion to Class‑I Service are identified with reference to the period when they arose it is difficult to hold that even though they do not possess a degree in Engineering they are still eligible for promotion as Executive Engineer.

8. For the reasons stated above we accept these appeals, set aside the judgments of the learned Tribunal and remand the cases back to it for disposing of the appeals .of the respondents after working out the number of vacancies available in Class‑II Service against which they may be promoted. There will be no order as to costs in these appeals. AA./S‑736/S??????????????????????????????????????????????????????????????????????????????????????? Cases remanded.