2006 PLP (C (PLC(CS))

NAZAR MOHAMMAD SHAIKH, MEMBER.

Appellant has been aggrieved by the Respondent's order dated 7-5-2003 whereby his allegedly juniors have been granted exemptions from the PTCL Accounts Service Examination (Part-I & II) and his name has been excluded. Appellant filed Departmental Appeal on 26-5-2003 against his exclusion which has not been responded within the prescribed statutory period.

2. The brief background of the case is that the Appellant joined the Respondent-Organization as Stenotypist on 18-2-1995 and during his eight (8) years' service Appellant rendered unblemished service. Appellant also acquired the qualification of M.Com degree from the University of Peshawar. Respondents vide their order dated 24-11-2000 prescribed certain qualifications from recognized Universities by the University Grants Commission (UGC) for the purpose of exemption of PTCL employees from PTCL Accounts Service Examination (Part-I & II) for the post of Accountant. The said order is reproduced below:-- "Pak Telecom Pakistan Telecommunication Company Ltd. Headquarters G-8/4, Islamabad No. T&D. 10-1/98/SAS/EXAM/Ce1l:II Dated the 24th Nov, 2000 Sub: Exemption of PTCL employees from PTCL Accounts Service Examination (Part-I & II) on the basis of higher qualification. The competent authority is pleased to approve the qualifications CA (inter), ICMA (Inter) MBA (Finance) and M.Com. (Finance/Accounts) from the Universities recognized by University Grants Commission for the purpose of exemption to PTCL employees from PTCL Accounts Service Examination (Part-I & II) for the post of Accountant (B-16). (Sd.) Abdul Majid Awan Deputy Chief Engineer (Training)" This order was, however, withdrawn by the Respondents vide letter dated 27-2-2001 whereby the qualification of M. Coin. (Finance/Accounts) was treated as withdrawn. The said letter is reproduced as under: "Pak Telecom Pakistan Telecommunication Company Ltd. Headquarters G-8/4, Islamabad No. T&D. 10-1/98/SAS/Exam/Cell: II Dated the 27th Feb. 2001 Sub: Exemption of PTCL employees from PTCL Accounts Service Examination (Part-I & II) on the basis of higher qualification. Having been approved by the competent authority, the qualifications of M.Com (Finance/Accounts) for allowing exemption from PTCL Accounts, Service Examination (Part-I & II) for promotion to the post of accountant (B-16) will not be considered. In the previous notification dated 24-11-2000 the qualification of M.Com (Finance/Accounts) treated as withdrawn. (Sd.) Deputy Chief Engineer (Training)" Meanwhile in pursuance of the respondent's letter dated 24-11-2000 Appellants were invited from the PTCL employees and seventy (70) officials out of which only twenty-one (21) were selected including the appellant as eligible candidate for exemption. Subsequently due to respondent's order dated 27-2-2001 reproduced above, appellant's name was excluded when some officials were granted exemption vide respondent's Notification dated 22-4-2003 and 7-5-2003.

3. Learned counsel for the appellant assailed the respondent's letter dated 22-7-2001 and argued that qualification of M.Com was equivalent to Master's degree and referred to the equivalence certificate issued by the UGC vide their letter dated 8-10-1989. He also referred to similar certification of equivalence issued by the Hailey College of Commerce, Lahore vide its letter dated 27-3-2001 and also to the various advertisements issued by the different departments where the qualification of M.Com as alternate qualification for the post in Accounts Departments. He also asserted that the appellant was initially included in the list of eligible candidates and thus a valuable rights was created which was denied to him by the respondents vide letter dated 27-2-2001. He further stated that even this letter does not supersede the previous letter as no mention of it has been made in it in this regard. He further stated that discretion for revising qualification has to be examined with judicious care and not taken in violation of the principle of social justice.

4. Learned counsel for the respondent refuted the contentions of the appellant's learned counsel and referred to the prayer of the appellant and stated that there was no adverse order against the appellant and, as such, the appeal was not maintainable. In this regard he relied on the ruling of Hon'ble Supreme Court reported in 1999 SCMR 819 wherein it was held as under:- "It would depend upon the nature of each order as to whether appeal against it is maintainable or not

In our view scope of appeal under section 4 is confined only where a person has been dismissed or removed or has been compulsory retired or reduced to a lower grade to sum up appeal lies only when the question relates to the terms and conditions of service." Learned counsel stated that there was no evidence that the appellant's terms and conditions of service have been violated and, as such, appeal was not maintainable on this count also. Another objection which the respondent's learned counsel raised was that the appeal was badly time-barred. He referred to the prayer of the appellant and stated that in his prayer appellant has asserted the respondent's order dated 27-2-2001 against which he filed representation in March, 2001 and thereafter he did not approach the Tribunal and, as such, he has lost his chance to assail the said order and, therefore, the appeal has become time-barred. He further referred to the PTCL Regulation where the Chairman 'PTCL had the discretion to amend the qualification for granting exemption. He further stated that M.Com was never a prescribed qualification and that the letter issued on 24-11-2000 was without authority and, as such, was withdrawn. He further stated that under section 21 of General Clauses Act, 1897, the Competent Authority can withdraw any order issued illegally or in violation of rules and in this regard referred to the ruling of the Hon'ble Supreme Court reported in 2004 SCMR

49. He further contended that the appellant had prayed for granting promotion which was outside the scope of the Tribunal's jurisdiction and stated that promotion was not a vested right and in this regard he placed reliance on the rulings reported in 2001 PLC (CS) 157, 2000 PLC (CS) 520, 1999 PLC (CS) 1306 and 1986 PLC (C.S.) 666.

5. In rebuttal, the learned counsel for the appellant again referred to respondent's circular dated 2-7-2001 where applications were invited from the PTCL staff members fulfilling the prescribed criteria where prescribed qualification required was, besides others, M.Com qualification was also prescribed.

6. We have heard the arguments from the counsel of both sides and perused the record and the citations.

7. The moot point in this appeal is whether the respondent's. order dated 24-11-2000, reproduced earlier, was issued competently and whether this letter was competently superseded by respondent's letter dated 27-2-2001, also reproduced earlier. Record indicates that the PTCL Service Regulations of 1996 prescribed the following qualification for granting exemption from PTCL Accounts Service Examination (Part-I & II) which was subsequently. The said regulation duly amended reads as under:-- All PTCL employees are The Chairman PTCL on his eligible for exemption from discretion may exempt a PTCL Accounts Service PTCL employee from P7 CL Examination (Part-I & 11) Accounts Service against 67% of post on the Examination (Part-I & II) on basis of higher qualification the basis of higher viz I.C.M.A. (Inter) CA qualification i.e. ICMA (Inter) (Finance) and from M.B.A. recognized (Inter) CA (Inter) and MBA (Finance) Grants from University Commission Universities. recognized Universities. It is apparent from the amended regulation. that the said order was not in accordance with the prescribed regulations and was, therefore, withdrawn three months after its issuance. Respondent's counsel has rightly contended that no vested right has been created and that there was always powers of rescission available to the authority passing an order competently and in this regard he referred to the ruling reported in PLD 2003 SC 143 and 2004 PLC (CS)

392. He had also contended that illegal order did not create any perpetual right in the light of dictum laid down by the Hon'ble Supreme Court in its ruling reported in 2000 SCMR

907. We also agree with the Respondent's Counsel that the appellant was excluded from exemption way back on 27-2-2001 and when his departmental representation was not responded he did not file any appeal before the Tribunal then. The fact that the said order i.e. dated 27-2-2001 withdrew the exemption allowed to M.Com it was, therefore incumbent upon the appellant to agitate this issue before the Service Tribunal after his departmental representation remained unresponded. We therefore,' subscribe to the respondent's contention that the appellant's appeal is hit by limitation. Furthermore, we do not find any merit in the appellant's contention that his valuable right has been violated as original Regulation of 1996 did not prescribe. M.Com as one of the qualification for granting exemptions. Reference to equivalence certification is not relevant as such certificates do not automatically include. M.Com as one of the prescribed qualifications in the recruitment/promotion rules. Respondent-Organization has to follow qualifications specifically prescribed in its rules and regulations and if any degree is certified as equivalent to one of the approved qualifications, it does not mean that any weight-age has to be assigned to it while considering people for promotion, recruitment or move over.

8. In view of the above facts, we do not find any merit in the appellant's contentions and dismiss the appeal both on grounds of lack of merit as well as on limitation.

9. No order as to costs. Parties be informed accordingly. H.B.T./35/FST Appeal dismissed.