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Case No. 419/1840 of 1982, decided on 5th January, 1984.

West Pakistan Revenue Department (Divisional Cadre) Ministerial Service Roles, 1964‑

‑‑ R. 5(5) (ii) ‑ Promotion ‑ Civil servant possessing highest qualifications amongst eligible candidates and his efficiency appreciated by higher authorities‑Civil servant fulfilling requisite conditions for promotion under merit quota as prescribed in Rules and civil servant found not eligible for such promotion‑Promotion of civil servant under merits quota, held, justified.

M. Ahmad Hasan Khan for Appellant.

Ch. Riasat Ali for Respondents.

A. G. Humayun, District Attorney for Department.

Muhammad Sharfuddin has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the orders, dated 18th November, 1981 of respondent No. 2 and dated 21st July, 1982 passed by respondent No. 1. He has implea ded the Member (Revenue), Board of Revenue, Punjab Lahore, Commis sioner, Rawalpindi Division, Rawalpindi, Ch. Asghar Ali, Office Superintendent, Deputy Commissioner's Office, Gujrat, as respondents.

2. By virtue of this appeal he has prayed that both the impugned orders be set aside and the promotion of respondent No. 3, Ch. Asghar Ali, be declared as illegal.

3. Brief facts of the case are that the appellant who is a Graduate, joined service as Junior Clerk on 11th January, 1980 and raised to the post of Assistant in the Office of Commissioner by virtue of the said service. His name on the seniority list of November, 1980, was placed at No. 6, while the same of the respondent No. 3 was placed at No. 21. The case of the appellant was once recommended by the predecessor of respondent No. 2 on merit quota in the year 1976, but the Divisional Selection Board did not recommend the case of the appellant. However, this being the situation, the respondent No. 3 Asghar Ali was considered by the Divi sional Selection Board, on 6th June, 1981, against merit quota, but the Board did not recommend the case of the respondent No. 3 with the observation that he should wait till be acquired more outstanding reports. What actually happened is that in the meeting of the Divisional Selection Board held on 10th November, 1981, the case of the respondent was once again considered and be was appointed Superintendent on the recommen dation of the Divisional Selection Board. He filed representation to the Board of Revenue against the said promotion of the respondent No, 3, which was rejected, vide Board of Revenue's order, dated 21st July, 1982. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department alongwith Ch. Riasat Ali, learned counsel for the respondent No. 3, and have perused the record of this case carefully.

5. Learned counsel for the appellant has come forward with a grie vance that once the case of the respondent No. 3 was deferred subject to his obtaining few outstanding reports which according to the learned counsel would have taken two long years, the same could not be accepted in the next meeting of the Divisional Selection Board as this would tanta mount to review of its earlier order, which the said Selection Board was not competent to review. The impugned orders have been assailed on the legal plane by submitting that the case of the appellant was governed by the West Pakistan Revenue Department (Divisional Cadre) Ministerial Service Rules, 1964, while the case of respondent No. 3 was covered by West Pakistan Revenue Department (District Cadre) Ministerial Service Rules, 1964. According to the learned counsel for the appellant, the respondents Nos. 1 and 2 have failed to appreciate the distinction between the two enactments and wrongly applied the Rules. It was further sub mitted that the West Pakistan Revenue Department (District Cadre) Ministerial Service Rules, 1964, had been amended in 1973 and promo tions on the basis of merit quota had been abolished, therefore, the appointment of respondent No. 3 through merit quota was illegal.

6. On the other hand learned District Attorney as well as learned counsel for the respondent No. 3 have vehemently contested both the contentions so raised on behalf of the learned counsel for the appellant and have submitted that as far as the legal issue of review is concerned, learned counsel for the appellant has failed to realise that the appoint ment of the respondent No. 3 was not against the original vacancy of 1972, but it was against another vacancy which had arisen later on, therefore, the second selection could not be categorised as review of the earlier order. It was also submitted that there was no legal bar on the Divisional Selection Board to reconsider its earlier decision in the light of the changed circumstances. With regard to the method of recruitment so assailed by the learned counsel for the appellant, it has been submitted that it was wrong to say on the part of the appellant that merit quota had been abolished in 1973, as the appellant himself had admitted in his appeal that he was considered for promotion by the Board for merit quota in the year 1976. In this way the learned District Attorney has submitted that the appellant cannot be allowed approbate and reprobate at the same time. He has also explained to us the entire structure of the Rules and in this manner has submitted that the objection so raised was absolutely unfounded.

7. We have given our anxious thought to the arguments so advanced by the parties and first of all we will advert to the legal issue so raised before us by the appellant. What we find is that the method of recruit ment/promotion of the post of Superintendent of Commissioner/Deputy Commissioner Office has been prescribed under the West Pakistan Revenue Department (Divisional Cadre) Ministerial Service Rules, 1964. Accord ing to Column No. 4, Serial No. 2 of the Appendix to the said rules, the post of Superintendent is filled in by promotion from among the member of service in the Division holding (1) post of Assistant with at least 5 years' experience as such or (ii) post of Senior Stenographer with at least 5 years' experience as such. This further provides that a common seniority list of all the Assistants and Stenographer working in the Deputy Commissioner's Offices of the Divisions and the Commissioner's Offices shall be maintained for the purpose of promotion to the post of Superintendent. In view of the said rules a joint seniority list of Assistants/Stenographers working in the D. C.'s offices in the Division and the Commissioner's Office was prepared and circulated by the Commissioner, Rawalpindi inviting objec tions if any from all concerned, but no objection was raised by the appellant. Rule 5 (5) (ii) of the said rules further provides that 10% vacancies of the Superintendents are to be filled in by selection on merits, irrespective of seniority provided the official fulfils the following conditions:‑----

(i) Has an outstanding record.

(ii) Below 52 years of age.

(iii) Possesses sound health.

The record of the case reveals that the respondent No. 3 possessed highest academic qualifications amongst all the eligible candidates of the Division i. e. B. Sc., LL. B. First Division and with scholarships in Eighth, Matric, F. Sc. and also in B. Sc. His efficiency and work was appreciated by the Senior Member, Board of Revenue, vide his Inspection Note of the Deputy Commissioner's Office, Rawalpindi recorded, on 11th August, 1979, in this manner we do not find any reason to hold that the merit quota had been abolished or that respondent No. 3 was not eligible for the same.

On the other hand, appellant was more than 32 years of age and thus ineligible for the merit quota.

8. With regard to the review matter, was are of the considered opinion that as the learned counsel for the appellant has failed to bring to our notice any provision of law or rule on the subject that the Divi sional Selection Board could not reconsider its decision in the changed circumstances, the said Board was competent to decide the case of the respondent No. 3 in the light of the circumstances which came to their notice. The appellant has now been promoted as Superintendent on the basis of seniority in Attock District and should have no grievance against the respondent who has achieved this promotion and rightly so through the prescribed manner so available with his superiors.

9. The result is we dismiss the appeal as being without any merit. There will be no order as to costs.

M. Y. M. Appeal dismissed.

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