1994 PLP (C (PLC(CS))

After he did graduation in 1986, his name was moved to the seniority list of Graduate Assistant Agriculture Engineers issued in 1988 wherein he was placed below the private respondents Nos'. 9 to

14. In the meantime other respondents 4 to 8 were promoted to BPS‑18, as Agriculture Engineers. However, as claimed by the appellant in para. 13 of his memo. of appeal he made representation for assignment of seniority to him from the date of his regular appointment as Assistant Agriculture Engineer and for promotion on the basis of such seniority. A copy of representation is not available on record and therefore it is not known on what date the said representation was made by the appellant. While speaking of the representation in para. 13 as stated above, he has not mentioned the date of his representation even in the said para. However, it is clear from the letter dated 8‑5‑1986 of the Director, Agriculture Engineering, Hyderabad, addressed to the Section Officer, Agriculture Department that the appellants representation was actually forwarded for further action. In reply to the above letter of the Director, the, Section Officer. Agriculture Department vide his letter dated 19th February, 1987, intimated him that the appellant had to be placed at the bottom of the seniority list of Graduate Engineers, from the date of his acquiring B.E. and as such the appellant's request for counting his seniority from the date of his regular appointment was rejected. It was within 30 days of this order that the appellant should have approached the Service Tribunal for relief. Because he has already exhausted the departmental remedy as his objection against the placement of his name in the seniority list of Graduate Engineers was considered at the Government level and was rejected. Therefore, as soon as he received the intimation of rejection of his claim he should have challenged the said rejection order before the Service Tribunal. There was no scope available to him for filing another appeal. It seems he made another representation through proper channel to the Secretary, Agriculture Department. But as he did not mention the date thereon it could not be said how long after his first representation was rejected vide Agriculture Department's letter, dated 19th February, 1987, he made the above second representation. However, the letter dated 28th December, 1987 of the Agriculture Department addressed to the Director‑General, Agricultural Engineering, Hyderabad, clearly indicated that even his second representation was rejected by the Government. Even at that stage the appellant did not deem fit to approach the Service Tribunal. Instead he once again approached the Chief Secretary, complaining against the above two orders of rejection, one dated 19‑2‑1987 and another dated 28‑12‑1987. So, this was the third time that the appellant represented for assignment of seniority to him with effect from the date of regular appointment and not from the date of his acquiring B.E. If the last‑mentioned representation addressed to the Chief Secretary, was considered as availing of compulsory departmental remedy, though in our opinion it was not, still he could come to the Tribunal after waiting for statutory period of 90 days. If he had followed such prescribed procedure, his present appeal before the Service Tribunal should have been filed some time in June, 1988, but actually it was delayed for nearly five years and was filed on 17‑5‑1993. The only explanation for such delay, furnished by the appellant's leaned counsel was that the appellant kept waiting for the appellate authority namely the Chief Secretary to pass order and as he did not pass the order after lapse of so many years, he filed Constitution Petition No. D‑53 in 1992 in High Court to make the said authority pass the order. The explanation is far from convincing. If at all he wanted to go to High Court, he could go there after waiting for statutory period of 90 days and not after waiting for four years. This was a lame excuse unable to inspire confidence. That court was adopted only to cover the delay. The order dated 16‑3‑1993 which was passed on direction of the High Court again reiterated that the appellant's seniority in the rank of Assistant Agriculture Engineer could be reckoned from the date of his possessing academic qualification of graduation for the purpose of promotion to the higher post (i.e. from March, 1986). It was this order that the appellant has ultimately challenged in the present appeal. Thus from the above discussion, we are inclined to feel that the appellant had not been vigilant in pursuing his case. He had not cared to move in accordance with the prescribed procedure and observe legal limitation. obviously, he had decided to resort to legal remedy very late with the result that the cause of action accrued to him in early eighties and thereafter was not availed in time and as such it was allowed to be barred by limitation. Even on merits the appellant had no case. It was true that as per academic qualifications prescribed by the West Pakistan Agriculture Engineering Service (Class II) Rules, 1963, his seniority in the cadre of Assistant Agriculture Engineers was to be computed from the date of his regular appointment in the said cadre i.e. 12‑6‑1978. However, by notification dated 15th September, 1982 of the Agriculture Department, the academic qualifications for appointment to the post of Assistant Agriculture Engineer were changed. As specified in column 4 of the above notification following qualifications were prescribd for appointment to the post of ,Assistant Agriculture Engineer: (i) Degree in Mechanical Engg. or B.Sc. (lions.) in Agriculture Engg. Or B.E. (Agriculture); (ii) ............................................................................................................ The appellant admittedly did his graduation in March, 1986. Despite this, his request was that since he was regularized in service much earlier on 12‑6‑1978, his seniority be counted from that date and not from the date of his graduation. We are not impressed by this argument. After graduation in Agriculture or Mechanical or Agriculture Engineering was prescribed as academic qualification, one could not be appointed as Assistant Agriculture Engineer unless he possessed that qualification. Consequently, seniority would only follow such appointment. As such the appellant would be regarded as Graduate Engineer having entered the above Cadre of Assistant Agriculture Engineers from March, 1986, the date of his graduation. Prior to that date he was non‑Graduate Engineer inducted in the said Cadre on the date of his regular appointment i.e. 12‑6‑1978. The aforesaid notification of the Agriculture Department by which the academic qualifications were changed, also prescribed the mechanism in column 3 thereof for filing the post of Assistant Agriculture Engineer as under: ‑‑ (i) At least 70% by initial recruitment. (ii) 10% by promotion from amongst supervisors possessing Degree in Mechanical Engineering or B.Sc. (Hops.) in Agriculture Engineering or B.E. (Agriculture) and having at least 5 years service as such in the Department . (iii) Remaining by promotion from amongst supervisors holding at least 3 years Diploma from B.I.T.E. University in Mechanical Engineering and having at least 10 years service as such. In the light of academic qualifications specified in the abovementioned notification, the seniority list of Assistant Agriculture Engineers was bifurcated in two categories namely seniority list of Graduate Engineers and seniority list of non‑Graduate Engineers. Until the appellant did his graduation he was placed in the seniority list of non‑Graduate Engineers. Obviously he had no grievance with regard to the place assigned to him in that seniority list. If he had continued to remain in the seniority list of non‑Graduate Engineers, his future promotions would have been barred. As is clear from the aforesaid notification, dated 15th September, 1982 of the Agriculture Department, the posts in BPS‑18 were to be filed by promotion from amongst the Assistant Agriculture Engineers possessing a degree in Mechanical Engg. or B. Sc. (Hops.) in Agri. Engg. or B.E. Agriculture having 5 years service of Assistant Agriculture Engineer. Thus, promotion to higher post of BPS‑18, was confined to only Graduate Assistant Agriculture Engineers. In other words higher post of BPS‑18 was to be filed from amongst the persons borne on the seniority list of Graduate Engineers. This was precisely the reason that the appellant did his graduation in March, 1986. On acquiring the said qualification, he was to be moved to the seniority list of Graduate Engineers. His induction in the said seniority was therefore made on the date he became Graduate. But the argument of the appellant's learned counsel was that notwithstanding the appellant's graduation which he did on later date (March, 1986) his original seniority would not be disturbed and it continued to be counted from the date of his regular appointment in the cadre of Assistant Agriculture Engineer. His argument held good until there was one seniority list of Assistant Agriculture Engineer irrespective of their being Graduate or not. But after the seniority was divided into Graduate and non‑Graduate Engineers, the appellant took his place in the seniority list of non‑Graduate Engineers. He was inducted in the seniority list of Graduate Engineers only after he became Graduate. It did not appeal to common sense that the appellant could count his seniority as Graduate Engineer prior to doing graduation or becoming Graduate. We are therefore of the considered view that the appellant's seniority in seniority list of Graduate Engineers would be counted from the date he became Graduate i.e. March, 1986. Although the appellant's learned counsel did not seriously contest the set of bifurcation of seniority list of Assistant Agriculture Engineers into Graduate Engineers and non‑Graduate Engineers seniority lists, yet he showed us the advice of the Law Department of Government of Sindh dated 12‑2‑1990 holding that the bifurcation of seniority list was not in conformity with rule 9 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. We regret our inability to agree with the Law Department's above view. To appreciate the implications involved in the bifurcation, it may be convenient to reproduce the rule 9(1) hereinabove. It reads as under: ‑‑ "9.‑‑(l) 'In each grade in a department there shall be a separate seniority list of a group of civil servants doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down." On close perusal of the above sub‑rule, it would appear that inter alia qualifications and experience' have to be kept in view while deciding about compiling of seniority lists. If the civil servants belonging to same class of service comprise both Graduates and non‑Graduates, they cannot be lumped together in the same seniority list. Obviously their inclusion in one and the' same seniority list would contravene the above rule 9(1). Even otherwise the Supreme Court has held the view that diploma‑holders cannot be equated with degree‑holders. Therefore, the bifurcation of the seniority list was quite in order. As stated above, the appellant's seniority in the seniority list of Graduates Assistant Agriculture Engineers would be reckoned from the date of his becoming Graduate i.e. March, 1986, and not from 12‑6‑1978 as has been claimed by the appellant. For above reasons there is no merit in appeal which is therefore dismissed with no order as to costs. H.B.T./570/Sr.S Appeals dismissed.