Find a Lawyer

Appeal No.402(R) of 1984, decided on 18th June, 1987.

‑‑‑S.4‑‑Appeal, filing of‑‑Appeal filed before Service Tribunal within thirty days from receipt of copy of judgment of departmental representation, held, would be within time.

‑‑‑S.4‑‑Establishment Division O. M. No.54/32/55‑ME, dated 5th September, 1955‑‑Promotion as Superintendent in a Ministry‑ Reservation of 10 per cent vacancies for stenographers‑‑Requirement‑‑Number of posts of Superintendents existing in a Ministry which were five at present, held, could not be confused with the number of vacancies occurring against such posts‑‑Plea of appellant that stenographers could be promoted only if there were ten posts of Superintendents repelled‑‑Held, only way to promote stenographers against five sanctioned posts of Superintendents was to count the vacancies occurring against such posts‑‑Tenth vacancy was to be allocated to stenographers‑‑Promotion of stenographer to post of Superintendent was legal and justified as per notification‑‑Appeal being devoid of merit was dismissed in circumstances.

Appellant in person.

Muhammad Amir Akbar Khan for the State.

Date of hearing: 1st June, 1987.

‑‑The appellant, Manzoor Hussain, Assistant, has come in appeal against the impugned promotion order dated 19‑5‑1984 of Mr.Muhammad Sadiq, Superintendent (Respondent No.2), Ministry of Defence. The appellant appealed to Respondent No.1 departmentally but having received no reply to date, he filed the present appeal before the Tribunal on 13‑9‑1984.

2. The appellant had previously filed an appeal No.15(R)/1983 to forestal the promotion of a Stenographer to the post of Superintendent in preference to him on the ground that according to the relevant rules and instructions the post should go to an Assistant. However, this appeal became infructuous and was, therefore, disposed of accordingly but the appellant was allowed to come before the Tribunal against the promotion of Mr.Muhammad Sadiq (Respondent No.2) in preference to him after exhausting the departmental remedy. The judgment of the Tribunal, dated 22‑8‑1984 was received by the appellant on 29‑8‑1984.

3. The facts of the case are that the appellant is a confirmed and senior‑most Assistant of the Ministry of Defence. With the creation of one additional post of Superintendent (in BPS‑16) vide Ministry of Defence letter No.12/1/74/D‑26 (Admin‑7), dated 11‑10‑1982, the total number of posts of Superintendents in the Ministry of Defence were raised to five. It was contended by the appellant in person that according to Ministry of Defence Gazetta Notification No.13/1/75/D‑26 (Admin‑I), dated 19‑5‑1984, Mr. Muhammad Sadiq, Stenographer (Respondent No.2) was promoted as Superintendent (PBS‑16) against 10 reserved quota of Stenographers contrary to the rules. Before the creation of the fifth post of Superintendent, four Assistants were holding the existing post of Superintendent in the Ministry. This fifth post was a temporary post created for a period of six months initially but the period was later extended for another six months. Therefore, this was a temporary post and not even a quasi -permanent post against which a Stenographer should have been promoted. According to Establishment Division O.M.No.54/32/55‑ME, dated 5th September, 1955, the orders for reservation of 10% vacancies for Stenographers do not apply to purely temporary vacancies. It was further submitted that since 'vacancy' is the second name of the 'post' and these reservation orders only apply to the authorised strength of the Ministry of Defence and not to the promotional quota, the vacancy should not have gone to the Stenographers. Also, it was further contended that in view of the Establishment Division O.M. No.61/3/50/MET, dated 12‑1‑1952 in which a question had arisen whether the services of a Stenographer appointed as Superintendent in 10% vacancies when terminated for one reason or the other the vacancy should be filled in by replacement i.e. by another Stenographer and not counted as a fresh vacancy. In other words it means that against the vacancy reserved for Stenographer in 10% quota only Stenographer could be appointed as Superintendent in case the services of the original incumbent are terminated for one reason or the other. Thus, on the analogy of this O.M. against the vacancy meant for Assistants, only the Assistants could be considered for promotion. Since at present there are only five posts of Superintendents in the Ministry of Defence the turn of Stenographers could come for promotion only if there were 10 posts of Superintendents. Out of the five posts, the Stenographer cannot be promoted against any post. Therefore, it was strongly contended by the appellant in person that no Stenographer should have been promoted against any of the five posts of Supdts. now available in the Ministry of Defence. The promotion of Respondent No.2 against the 5th post of Superintendent now created is ultra‑vires and, therefore, is liable to be set aside.

4. The learned Counsel for Respondents contended that in the first place the appeal is time‑barred by proviso to Section 4(1)(a) of the Federal Service Tribunals Act, 1973 as no appeal was filed against the order dated 19‑5‑1984 on the promotion of Respondent No.2. The departmental appeal was filed on 3‑8‑1984 i.e. more than 30 days after the impugned order was passed. Therefore the appeal is liable to be dismissed as hopelessly time‑barred. It was, however, admitted on merit that the appellant was a senior‑most confirmed 'Assistant in the Ministry of Defence and it was brought out that against initially four vacancies of Superintendents, nine Assistants had already been promoted, the 5th post of Superintendent which was in fact the 10th vacancy naturally had to go to the Stenographers. Mr. Muhammad Sadiq, Stenographer (Respondent No.2) was considered fit by the DPC and, therefore, was promoted as Superintendent with effect from 19‑5‑1984. It was further brought out that the contention of the appellant was not correct as regards vacancies versus the posts. It is always the vacancies that are counted and not the number of sanctioned posts that are taken into consideration for the purpose of promotion to the post of Superintendent. In this particular case, it was submitted that since there are only five posts, it is fair and correct that the vacancies will have to be considered in a cycle otherwise the Stenographers will never have a chance to be promoted as per the logic put forward by the appellant. It is not just and fair that the Stenographers are made to wait to take their turn for promotion as Superintendent till the posts of Superintendent are increased to the extent of 10 posts. This may never happen and, therefore, it would mean depriving the Stenographers of their right for promotion as Superintendent. The only correct method to accommodate the Stenographers would be to count the vacancies occurring against the sanctioned posts of Superintendents. This is also the correct view as clearly explained in the Establishment Division O.M. No.61/3/50‑MEI, dated 6‑12‑1951.

5. It was also contended by the learned Counsel for Respondents that the Estt. Division O.M. dated 24‑1‑1952 is not attracted because no vacancy has occurred in the Defence Division due to termination of services of any original incumbent of the post of Superintendent before confirmation. This O.M. relates to the 10th vacancy created due to termination of services of a promoted Stenographer before confirmation thus leaving the 10th vacancy without any incumbent being appointed to it, which should, according to the rules, go to a Stenographer. It does not support the contention of the appellant because it is the 10th vacancy which is held to be vacant under this O.M. The relevant rules and the O.M. lay down the procedure for filling up the vacancy without making any reference to the sanctioned posts of Superintendents. Hence for the purpose of rules, the number of sanctioned posts do not play any part in the matter of reservation of 10% vacancies for the promotion of Stenographers. It was strongly contended that the promotion of Respondent No.2 to the post of Superintendent is strictly according to the existing rules. As regards the 5th post of Superintendent being temporary post, it was contended that since all temporary posts which are likely to continue are to be considered quasi‑permanent, the 5th post of Superintendent in this case cannot be treated as a temporary post. This procedure is prevalent in all the Federal Ministries because permanent establishment of Ministry of Defence has not yet been approved by the O&M Division.

6. As regards the appeal being time‑barred, we do not feel that it is so because, as stated above, the appellant received the judgment on his appeal No.15(R)/1983 on 29‑8‑1984. He filed his present appeal on 13‑9‑1984. This is within 30 days of the stipulated period. The present appeal is well within the time limit.

7. In view of the above arguments, we are of the considered view that the number of posts of Superintendent existing in the Ministry of Defence which are five at present cannot be confused with the number of vacancies occurring against these posts. The contention of the appellant that the Stenographer could be promoted only if there were 10 posts of Superintendents is not considered correct. The only way to promote the Stenographers against these five sanctioned posts of Superintendents is to count the vacancies occurring against these posts. Naturally, therefore, the 10th vacancy should have been allocated to the Stenographers which is the case while promoting Respondent No.2. The promotion of Respondent No.2,

in our opinion, is undoubtedly legal and justified. We, therefore, dismiss the appeal with no order as to costs.

8 Parties to be informed.

‑‑I agree with my learned brother that this appeal should be dismissed. However, filling the post quota vacancy‑wise should not be taken as of general application.

In the present case, it has been adopted because if promotion is made post for post, no Stenographer will ever get a chance of promotion.

A . A . /378/Sr. F

Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.