1998 PLP 1052 (SCMR)

SH. RIAZ AHMAD, J.

This is an appeal by special leave from the judgment dated 13-11-1993 delivered by the Federal Service Tribunal whereby an appeal preferred by the appellant challenging his placement at a lower number in the seniority list, was dismissed.

2. The facts in brief are that in 1981 the appellant appeared in the competitive examination held by the Federal Public Service Commission and on the basis of his result he was offered an appointment in the District Management Group in Grade-17. The said offer was accepted by the appellant and after completion of the specialised training, his services were placed at the disposal of the N.W.F.P. Government where he held various offices. The appellant was promoted to Grade-18 with effect from 10-4-1990 and prior to his promotion his name appeared at Serial No.63 of the Gradation List of the District Management Group for the year 1988. According to the terms and conditions of his appointment contained in letter dated 28-8-1992 and under rule 12(1) of the Civil Service of Pakistan (Probation, Training and Seniority) Rules, 1954, the probationer was required to pass the departmental examination within three years of joining service in a Province. Under sub-rule (2) of Rule 12, in the event of the failure to pass the departmental examination within the specified period, a probationer could be removed from service. The appellant availed three chances but failed to qualify the departmental examination. In the meanwhile, departmental promotion committee in its meetings held on 10-4-1988, 1-8-1988 and 26-12-1988 came to the conclusion that the appellant could not be promoted because of his failure to qualify the departmental examination, and therefore, his promotion was deferred and officers junior to the appellant were promoted. Another meeting of the departmental promotion committee was held on 25-10-1989 and instead of removing the appellant from service, a lenient view was taken inasmuch as he was superseded while others were recommended for promotion. In May, 1993 the Gradation List was again circulated and the appellant was placed at Serial No.150 instead of

92. Aggrieved by such placement in the seniority list, the appellant preferred a departmental appeal, which was rejected. Thereupon, the appellant preferred an appeal before the Federal Service Tribunal, which was dismissed vide order impugned. -

3. Vide order dated 22-8-1994, leave to appeal was granted to the appellant to consider whether the Tribunal rightly proceeded to hold that since the appellant failed to qualify the departmental examination and his promotion having been deferred he would not be entitled to claim his old seniority as against his colleagues, who had been cleared for promotion after qualifying the departmental examination; and whether deferment of the appellant from promotion could not disturb the inter se seniority of the appellant with the respondents.

4. We have heard the learned counsel for the appellant at length and have also gone through the judgment impugned. The initial Gradation List in this case was prepared by the Federal Public Service Commission on the basis of merit of the group including the appellant. The appointment letter dated 28-8-1982 lays down the terms and conditions of the appointment. Condition (i) reads as under:-- You will be on probation for a period of two years which may be extended after the expiry of this period at the discretion of the Government. The probation period, however, shall not expire until you have passed the prescribed examinations." Condition (iv) in the appointment letter reads as under:-- "On completion of your training in the Academy and the Army attachment, you will be given on the job or specialised training as may be prescribed. This training may be followed by a Departmental Examination. " Condition (vi) reads as under:-- "If you fail to qualify in any of the Examinations mentioned in sub paras. (i) and (iv) above, or your conduct or performance during the probation period is not satisfactory, your service will be terminated without notice, Under condition (x), as a civil servant under the Federal Government, the appellant was subjected to the provisions of the Civil Servants Act, 1973 and was to be governed by the rules and regulations applicable to a civil servant.

5. Admittedly, the appellant failed to qualify departmental examination on three occasions. Thus, under the terms and conditions of his appointment, his services could be terminated, but a lenient view was taken and the departmental promotion committee deferred appellant's promotion while the respondents were promoted in the year 1988-89. On the fourth occasion the departmental promotion committee, which met on 25-10-1989 superseded the appellant on account of his failure to qualify the departmental examination while others were cleared for promotion.

6. It is settled law that a civil servant, who is superseded, cannot regain his seniority over others who were promoted like the respondents in the present case. Furthermore, as far as question of seniority is concerned, it is necessary to make reference to section 8 of the Civil Servants Act, 1973. Subsection (4) of section 8 reads as under:-- "Section

8. Seniority. - :................. (4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade. " Perusal of the above provision of law clearly shows that the appellant having been superseded, cannot claim to be senior to the respondents because the appellant was not selected for promotion alongwith his batchmates who would become senior to the appellant. In this view of the matter, we do not find any merit in the appeal which is hereby dismissed leaving the parties to bear their own costs. M.B.A./N-17/S Appeal dismissed.