1989 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mir Ghulam Sarwar has been serving as a Draftsman, Class B, in Engineer-in-Chief s Branch GHQ, Rawalpindi since April. 1960. On the introduction of the National Pay Scales, the posts of Draftsmen, Class B, stand placed in NPS-7. The appellant made representations that he may be placed in NPS-11 by virtue of the orders contained in para. 2 of Ministry of Finance (Regulation Wing) O.M. No. F.340 R(11)/76, F.1(1)-NG/76, dated 3rd May, 1976 that persons who were appointed previously as Draftsmen and did not possess three years' diploma course prescribed for the post of Draftsman, may also be treated as entitled to NPS-11 He was informed under E-in-C Branch No. 1694/EIB-1, dated 12th November, 1986 that his representation/ appeal had been rejected. He, therefore, preferred this appeal on 8-12-1986 that he may be allowed NPS-11 from 3rd May, 1976.

2. The respondents have filed objections. They have raised preliminary objections that the appeal is barred under section 4(1)(a) of the Service Tribunals Act, 1973 and it is also time-barred. On merits, they have stated that under Ministry of Finance O.M. No. F.1(24)NG-Imp-II/73-384/74, dated 8th May, 1974 that the post for which direct entry qualification is Matric plus three years' diploma course in any branch of Engineering from recognised institutions were placed in NPS-11 with effect from 1st May, 1971. They have further stated that the orders contained in the Finance Division O.M. of 3rd May, 1976 extend only to those posts wherefore the qualification for direct recruitment is "Matric plus three years diploma course", whereas the post of Draftsman Class B in M.E.S, does not carry the qualification of diploma in Draftsmanship but the qualification for those posts is Matric plus certificate in Draftsmanship from the recognised institution. According to him, the benefit of the O.M. dated 3rd May, 1976 extends to only-the Draftsman in Class-A and not to the Draftsman in Class B.

3. The appellant claims to be placed in NPS-11 on the basis of Finance Division (Regulation Wing) O.M. No. 340-R(II)/76-F.1(1)-NG-Imp.II/73-384/74, dated the 8th May, 1976, reproduced below from the Pakistan Army Orders Gazette dated 10th September. 1976: "Reference Clause (a) of para. 2 of this Division's Office Memorandum No. F.1(24)-NG.Imp.II/73-384/74, dated the 8th May, 1974, which lays down as follows:-- "(a) NPS-11 shall be allowed for posts for which the prescribed qualification for direct entry is Matriculation plus 3 years diploma course in any branch of engineering from a recognised institution".

2. It has been reported that to some of the above posts, in certain organisations, direct recruitments have been made, by the competent authority, of persons who do not possess the aforementioned qualification (in consideration perhaps of their practical experience etc.) It has been decided that this category of existing incumbents of the post referred to above may also be treated is entitled to NPS-11.

3. The Ministries, Divisions etc. are advised that henceforth persons not possessing the abovementioned qualification should not be appointed by direct recruitment to the posts of Diploma Engineers in question." "'he learned counsel for the applicant has urged that the aforesaid order does not make any distinction between Class A and Class B Draftsmen and the appellant is entitled to the benefit conferred there under sin the Draftsman not possessing the prescribed qualifications. On the other hand, the learned counsel for the respondent has concerned that the provisions of the aforesaid O.M. dated 3rd May, 1976 extend only to the incumbents of the posts wherefore the qualification for direct entry thereto is Matriculation plus three years' diploma course and that is the qualification prescribed for Draftsman Class A, whereas the qualification for the Draftsman Class B is Matric plus certificate in Draftsmanship from a recognised institution.

4. The Office Memorandum dated 3rd May, 1976, reproduced above, refers to clause (a) of para. 2 of the Finance Division O.M. No. F.1(24).NG.Imp.II/73 384/74, dated the 8th May, 1974. Its relevant part needs to be reproduced and it is as under:-- "Subject:- Scheme of National Scales of Pay, allowances and other Fringe Benefits for Non-Gazetted Civil employees (Other than Teaching Personnel)--Enhancement of National Pay Scales in respect of Engineering Diploma-holders and Technical Draftsmen. Reference Finance Division O.M. No. 1(2)NG-Imp/71, dated 8-3-1972, as amended from time to time.

2. It has been decided that in the case of Engineering Diploma-holders and technical draftsmen employed under the Federal Government the enhanced pay scales shall be as follows:-- (a) NPS-11 shall be allowed for posts for which the prescribed qualification for direct entry is Matriculation plus 3 years' Diploma course in any branch of Engineering from a recognised Institution. (b) NPS-11 shall also be allowed for posts of draftsmen requiring for direct recruits the educational qualification of Matric with 3 years' diploma course. (c) The promotees to posts (a) and (b) above shall get the same NPS as direct recruits irrespective of their educational qualification. (d) xx xx xx xx xx xx (e) xx xx xx xx xx xx

3. These orders shall take effect from 1-6-1974: It would appear that benefit of Finance Division O.M. dated 3rd May, 1976 extends to the posts envisaged in paragraph (a) of the Finance Division O.M. dated 8th May, 1974. The posts of Draftsmen stand segregated from the posts referred to in clause (a) and the posts of the Draftsmen have been separately provided for in clause (b). Therefore, the appellant does not come in the category of the persons who can derive benefit from the Finance Division's O.M. dated 3rd May, 1976. Even otherwise, the appellant does not seem entitled to derive benefit of the relaxation of qualifications for entering NPS-11. A separate provision was mach for giving; benefit of NPS-11 to the Draftsmen A and B Grades vide MAG's letter No. AT/PC/4961-VII, dated 2nd August, 1976, published on 14th September, 1976 (Annexure II to the memo. of appeal) in the Pakistan Army Orders. It was clarified that the benefit of the Finance Division O. M. dated 8-5-1974 could be extended to the Draftsmen A & .B Grade Whose basic qualification for direct recruit was Matric with three years' diploma course from a recognised institution as prescribed m SPAO 31/72. It was further provided that NPS-11 was allowed to Draftsmen promoted from lower grade to A & B grade posts of Draftsmen (whose basic condition for direct recruitment is Matric with three years' diploma course) irrespective of their educational technical qualifications i.e. the prescribed qualification in their case would not be insisted upon. However, the appellant could not derive benefit of concession made in case of promotee Draftsmen as he was directly appointed as Draftsman, Grade II. The respondents have filed photostat copy of Recruitment Rules for Civilian Non-gazetted posts (Class II and Class III) in the lower formations of the Army. Schedule attached to the Rules indicates that the posts of Draftsmen Grade-A (Class III) are mentioned at S. No. 241 of the Schedule. The qualifications for the posts mentioned in column 6 are (i) Matric (or equivalent) and (ii) Diploma in Draftsmanship from a recognised institution for direct recruitment. The posts of Draftsmen Grade B (Class III) are mentioned at S.No.

242. The qualifications for direct recruitment for those posts indicated in column 6 are (i) Matric (or equivalent); and (ii) Certificate from a recognised institution in Draftsmanship. It is obvious that the posts of Draftsmen, Grade B (Class III) do not require I qualification of Diploma in Draftsmanship from a recognised institution for direct recruitment. Therefore, the appellant does not have a case for entering into NPS-11 and his representation was rightly rejected.

5. Apart from merits discussed above, the appeal seems to be time-barred as well as contended by the respondents. The appellant's claim is based on Finance Division O.M. dated 3rd May, 1976. He made representation to the E an-C first time on 31-1-1986. His representation was rejected vide communication dated 6-5-1986. He made another representation to the E-in-C on 18-5-1986. His attention was drawn to the earlier order vide notification dated 25-10-1986 and g 12-11-1980. He did not prefer any appeal. The appeal filed on 8-12-1986 was, therefore, time-barred. The appeal is also hit by proviso (a) to section 4(1) of the Service Tribunals Act, 1973 as no departmental appeal was filed. Accordingly, the appeal collapses even on the legal platform.

6. For the reasons recorded above, the appeal is liable to be dismissed on facts as well as on law and is accordingly dismissed with no order as to costs. A.A./479/Sr. F Appeal dismissed.