1996 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN). ‑‑‑Appellant Malik Tariq Mahmood is M.Sc. (Physics). He was appointed as Engineering Supervisor in the T&T Department (now PTC) in the year 1973, after having passed his B.Sc. He was promoted as Assistant Engineer (B‑16) by notification dated 6‑7‑1988 on the basis of reserved quota provided in the Recruitment Rules of 1981 notified vide SRO 977(1)/81, dated 15th August, 1981, published in the Gazette of Pakistan dated 2‑9‑1981. Appointment to the posts in Grade‑16 in the General and Carrier and Wireless Branches of T&T Department was to be made: (i) 75 % of the posts shall be filled by promotion as per para. 3 below and (ii) 25 % of the posts shall be filled by promotion of persons possessing Diploma in Engineering (henceforth galled as Sub‑Engineers) and persons possessing B.Sc./M.Sc. Degree as per para. 3 below: Provided that the posts reserved for diploma engineers and B.Sc./M.Sc. degree‑holders vide para. 2(ii) above, shall be filled on the basis of seniority‑cum‑fitness by promotion of Sub‑Engineers who have obtained a post Matriculation 3 years' Diploma from a recognised Polytechnic Institute or hold B.Sc./M.Sc. degree and have 10 years' service in T&T Department and have passed the prescribed departmental examination for promotion to Grade‑16 of T&T Department. Under SRO 1022(1)/76, dated 14th October, 1.976; the rules for appointment to the post of Assistant Divisional Engineers (Grade‑17) were notified which provided: (i) 40% of the posts of Assistant Divisional Engineers shall be filled by promotion provided that at least 20 % posts shall be filled by promotion ` of persons possessing Diploma in Engineering and 5 % shall be filled by promotion of Departmental Employees possessing Degree in Engineering or Associate Membership of a recognised Institute of . Engineering. (ii) 60 % of the posts shall be filled by direct recruitment. Vide SRO 1173(1)/88, dated 18th December, 1988, certain amendments were made in 1976 Rules and para. 2(a)(i) of 1976 Rules was substituted with the following: (i) 40% of the posts of Assistant Divisional Engineers shall be filled by _ promotion subject to the following distribution:‑‑ . (a) 20% for the persons holding a Diploma in Engineering and those B.Sc./M.Sc. Degree‑Holders who were directly recruited in BPS‑16 along with' the former; (b) 5% for the persons holding .the qualification of Degree in Engineering/AMIE (Pak.). (c) 15 % for the persons other than those specified at (a) and (b) above. There was further amendments and vide SRO 1221(1)/89, dated 21st December, 1989, sub‑para. (i)(a) of the 1988 Rules was amended as under: "20 % for persons holding Diploma of Associate Engineer. " The grievance of the appellant is amendment of 1989 where under 20% of the posts of Assistant Divisional. Engineers (B‑17) have been reserved only for Diploma Holders is ultra vires and has been made just to give benefit to the direct recruits and may be set aside, and the category of non‑Diploma‑Holders may also be included for promotion prospects. The appellant challenged the vires of Rules by filing Constitutional petition in the Peshawar High Court but the same was dismissed as withdrawn for seeking redress before the Federal Service Tribunal by order dated 28‑3‑1994 in view of the decision of the Supreme Court. The appellant then filed this appeal on 3‑4‑1994 before the Tribunal with the prayer: "... to declare the impugned rules dated 18‑12‑1988 and 21‑12‑1989 to be ultra vires, discriminatory, against the natural justice and thus of no legal effect upon the rights of the appellant. Respondents be directed to consider the appellant at par with Assistant Engineers holding Diploma of Associate Engineers for further promotion as Assistant Divisional Engineer."

2. Mr. Abdul Aziz Kundi, Advocate appearing for the appellant while challenging the vires of Rules, relied on two judgments of this Tribunal delivered in Appeals Nos. 154(R)/89 (Abdul Sattar) and 289(R)/91 (Muhammad Ghufran Qureshi) and requested that facts in these appeals being identical to the present case, the‑appellant may also be allowed the same benefit, on the basis of judgment in above appeals.

3. Mr. Hafiz S.A. Rehman, the learned counsel for the respondents has taken the point of limitation and submitted that the appeal is time‑barred. On merits, he has stated that clause (c) of sub‑para. (i) of 1988 Rules is still in field and has not been amended and the appellant an be considered for promotion against 15% quota reserved for non‑Diploma‑Holders. He has also‑argued that the appellant in the departmental appeal has not challenged the vires of Rules and he is estopped from taking this position now.

4. With regard to point of limitation, the contention of the appellant is that since there was confusion about the jurisdiction of this Tribunal with regard to employees of PTC, having been declared as Corporation employees, he filed Constitutional Petition before Peshawar High Court, and on the pronouncement of the Supreme Court in the case of Shabbir Ahmed, the jurisdiction assumed by the Tribunal was upheld, the, appellant withdrew the petition from Peshawar High Court and then filed this appeal before the Tribunal. The arguments have got force and good cause has been shown and we are inclined to consider the application for condonation of delay, and condone the delay in filing the appeal before this Tribunal.

5. It is the prerogative of the Government to make or amend the rules, in the exigency of service, and the vires of rules, no doubt, are challengeable before the Tribunal, and the Tribunal has got full powers to examine the correctness of the Rules, according to law. In the instant case, the amendments made in 1988 and 1989 are sought to be set aside, which continued for a long period of about more than five years and this appeal having been filed in 1994 is too late to have any grievance when 15 % quota is available in the Rules. Moreover, under clause (c) of the said rules, the appellant is entitled to be considered for promotion as ADE against 15 % quota, therefore, no case is made out of declaring Rules ultra vires. There‑is a categorical statement by the learned counsel appearing for PTC that case of appellant will be considered at the relevant time. We, therefore, while dismissing the appeal, direct the respondent PTC, that the case of the appellant be considered for promotion as ADE against 15 % quota provided in the Rules, as per statement of the learned counsel, for the respondents. H.B.T./23/Sr.F Appeal dismissed.