1984 PLP (C (PLC(CS))

ABDUR RASHID (MEMBER).‑Facts of the case are that the appellant was appointed as Data Processing Assistant (BPS‑11), on 14th September, 1974. The seniority list of the D. P. As. as on 30th August, 1980 shows the appellant to be at serial No. 2 of the said list.

2. The appellant was superseded by three of his juniors who were promoted as Data Processing Supervisors (BPS‑14). The said juniors have been impleaded as respondents Nos. 2 to

4. Thus, aggrieved, the appellant preferred a departmental appeal on 9th May, 1980 which was rejected vide Ministry of Religious Affairs O. M., dated 10th February, 1983. The O. M. ibid is reproduced : "No. F. 4 (77)/82‑Admn.

11. Islamabad, the 10th February, 1983. Memorandum With reference to his representation, dated 9th May, 1980, regarding promotion to the post of Data Processing Supervisor (Grade‑14) Mr. Muhammad Yaqub, Data Processing Assistant is hereby informed that he was considered by the Departmental Promotion Committee in its meeting held on 24th March, 1980. But as he did not have the requisite qualification he was not approved. (Sd.) (Muhammad Amin Malik), Section Officer (Admn. II) Mr. Muhammad Yaqub, Data Processing Assistant, Ministry of Religious Affairs, and Minorities Affairs, Islamabad." From the above‑quoted order of the respondent‑Ministry, the appellant filed his present appeal before the Federal Service Tribunal within thirty days viz. 12th March, 1983. It was admitted for regular hearing on 14th April, 1983 and is being disposed of by this order.

3. The learned State counsel raised two objections as to the main tainability of this appeal. The first objection was that it was time‑barred. The facts reproduced at para. 2 above speak otherwise. The objection is, therefore, repelled. The second objection was that the appeal was hit by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973. This objection would be dealt with at its appropriate place. The said proviso is, however, reproduced "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher Grade ; "

4. It is an admitted position that the appellant was considered by the D. P. C. Meeting, dated 24th March, 1980 but as stated by the respondent Ministry, he was not promoted as "he did not possess the requisite qualification of minimum "C" Grade certificate in Electronic Data Processing for Management which is a prerequisite for promotion from the post of Data Processing Assistant (Grade‑I1) to that of Data Processing Supervisor (Grade‑14)." In this connection and to justify the super-session of the appellant reliance was placed by the Ministry concerned on two factors. First the draft recruitment rules of April, 1980 laid down the following conditions for promotion of Data Proces sing Assistant to that of Data Processing Supervisor; (i) At least three years' practical experience as Data Processing Assistant. (ii) Minimum `C' Grade certificate in Electronic Data Processing for Management. And second : the respondent No. 1 has referred to the letter of offer dated 23rd September, 1974 to prove that they were justified in demanding from the appellant the `C' grade certificate in E. D. P. for Management. The relevant portion of the said letter of offer to the appellant is quoted below; "(f) He will be governed by all rules and regulations framed by the Government from time to time (or such other rules/regulations or terms and conditions which are not included in this letter) for the class/grade of service to which he will belong." While repelling the reliance of the Ministry on the above‑quoted letter as meaningless, we find that the issue involved is a simple one i.e. to ascertain whether the draft rules of April, 1980 on the basis of which the appellant was superseded simply because he did not possess `C' Grade certificate were promulgated as such at the time the appellant was considered on 24th March, 1980. To our great surprise we discover that the draft rules are, dated 8th April, 1980 and the appellant was superseded on 24th March, 1980. This disparity may, have been due to the fact that those constituting the D. P. C. had a copy of the draft rules without the date but only with year. 1t is an admitted position that the said draft rules were notified on 21st August, 1983 and not before. We have, there fore, no doubt that the appellant was superseded by the D. P. C. concerned under the erroneous impression that he did not possess the 'C' certificate which they expected him to possess under the draft rules which were not in the field. The D. P. C. Meeting therefore, erred seriously. Had they been vigilant, they would have discovered that the draft rules 1980 had not been promulgated and that the said rules had no force of law at the time the appellant was superseded on 24th March, 1980. What surprises us further is to discover that the rules notified on 21st August, 1980, too, do not contain any requirement of any `C' Grade certificate. Rule 3 of the rules ibid lays down that D. P. As. with 3 years' experience as such would be eligible for promotion to the post of Data Processing Supervisor. The requirement of COBOL course has been made compul sory only for the directly appointed Data Processing Supervisors.

6. If the appellant had been superseded on the basis of his service record then his case would have been hit by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973 and the objection of the learned State counsel mentioned at para. 3 would have had force. However, in such a case the appellant would have heard about his adverse reports but no such reports were ever communicated to him and this goes to prove that the service record of the appellant was satisfactory. In the instant case, as brought out by the foregoing analysis, the appellant has been seriously wronged and he cannot be allowed to go on suffering due to the lack of vigilance of others, in this case the D. P. C. Meeting, dated 24th March, 1980. We, therefore, accept the appeal and order that the appellant would be deemed to have been promoted as D. P. S. (B. P. S.‑14) w. e. f. the date, his juniors were promoted. Since the appellant would have been promoted to the post of D. P. S. (B. P. S.‑14) w. e. f. the date his juniors were promoted, had it not been for an error of fact and judgment by the D. P. C. Meeting, he would therefore, be entitled to the pay and allowances (including increments) of the post of D. P S. w. e. f. the date his immediate junior was promoted.

7. No order as to costs. A. S. Appeal accepted.