2003 PLP 333 (SCMR)

Date of hearing: 8th May, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑This appeal by way of leave of the Court is directed against the judgment dated 21‑9‑2000 passed by Federal Service Tribunal, Islamabad, in a service appeal involving dispute of seniority. Leave was granted by this Court vide order dated 3‑5‑2001 as under:‑‑ "Learned counsel submits that the petitioner had been transferred from his original post without his option and, therefore, he was entitled to seniority in the department where he was originally inducted and not in the department where he was transferred without his consent/option." The appellant, was appointed as Sorter in Railway Mail Service, Rawalpindi on 14‑7‑1969 and later he was transferred as Upper Division Clerk (B‑7) to the office of Post Master General, Northern Circle, Rawalpindi, vide order dated 2‑8‑1978 against 25 % reserved quota. The appellant joined in the above said office on 4‑8‑1978 and on 1‑1‑1985 he was permanently absorbed in the. office of Post Master General, Northern Circle, Rawalpindi. In the seniority list of UDCs issued by the Office of Post Master General, Northern Circle, Rawalpindi on 13‑5‑1987, the appellant was laced at S.No.49 and respondents Nos.4 to 21 were shown senior to him in he said seniority list. The appellant being aggrieved of his position as junior to the private respondents, preferred a departmental appeal /representation and on dismissal of said appeal, he did not further agitate the matter. The department published another seniority list of UDCs of the Office of Post Master General, Northern Circle, Rawalpindi on 5‑4‑1999 in which the appellant was again junior to the private respondents, therefore, he filed a departmental appeal but same was not disposed of within the prescribed period, therefore, he approached the Federal Service Tribunal through a service appeal which was dismissed vide impugned judgment with the following observations: "It is to observe that the notification issued by the Government of Pakistan, Ministry of Communications (Pakistan Post Offices), dated 25‑3‑77 regarding seniority to be counted from the date the incumbents were appointed/promoted on regular basis to the post of Clerks (B‑7) in the Post Offices/Railway Mail Service/Return Letter Offices. This amendment was made effective from 1‑3‑1972 i.e. the date from which the grade and scale of pay of Time Scale Clerks have been equated with that of the Upper Division Clerks but this notification was recalled/withdrawn by the said Ministry of Communications by order 7th August, 1985 with effect from the date of its issuance and now its legal implication turns out and boils to the fact that no such notification was issued. Now presently the Civil Servants (Seniority) Rules, 1993, hold the field. Pursuant to the aforesaid discussion, the relief sought for cannot be extended and granted to the appellant due to involvement of legal technicalities at the appropriate stage when the appellant for unknown reasons worked under the, newly‑created office of the Postmaster General, Northern Circle, Rawalpindi, without prior settlement of his legal right. There is an Arabic maxim that meaning thereby that for every ailment there is a cure but, in the instant case, we have not been able to find a cure to the ailment of the appellant having not been properly assisted by both the learned counsel specially the counsel for the appellant and as such the judgment cannot be made in vacuum and darkness; resultantly this appeal fails and is hereby dismissed. We also have not been able to treat the appellant as deputationist for which there are fixed terms and conditions which conditions are not available. However, parties are, allowed to bear their own costs. Learned counsel for the appellant has contended that the fresh seniority list published in the year 1999 would give fresh cause of action to the appellant to challenge the wrong position of seniority assigned to him in the said seniority list and that the seniority list issued in 1987 would deem to be a tentative in nature, therefore, non‑filing of appeal before the Service Tribunal against dismissal of departmental appeal/representation preferred against seniority list of 1987 would not debar him from challenging the subsequent seniority list. The learned counsel with reference to rule 4 of Civil Servants (Seniority) Rules, 1993 contended that seniority of the appellant would be reckoned from the date of his regular appointment, notwithstanding his absorption as UDC in the Office of Post Master General Northern Circle, Rawalpindi on 1‑1‑1985 and in any case under the above referred rule, the appellant would be deemed to be absorbed permanently from the date of his transfer on 4‑8‑1978. The learned Deputy Attorney General appearing for the official respondents, has argued that the appellant having not challenged dismissal of departmental appeal filed by him against the seniority list published in 1987 was estopped from challenging the C subsequent seniority list published on the basis of said seniority list and thus the appeal preferred by him before the Tribunal was not maintainable. The learned Deputy Attorney‑General, however, has not been able to chow us any rule under which the seniority of the appellant would be counted from the date of absorption i.e. 1‑1‑1985 and not from the initial induction in service through transfer on 4‑8‑1978. Rule 4 of Civil Servants (Seniority) Rules, 1993, provides as under:‑ "

4. Seniority on appointment by transfer.‑‑‑Seniority in a service, cadre or post to which a civil servant is appointed. by transfer shall take effect from the date of regular appointment to the service cadre or post: Provided that‑‑ (a) persons belonging to the same service, cadre or post selected for appointment by transfer to a service cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and (b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior." The above‑quoted rule explicitly mentions that the persons appointed through transfer were to be assigned seniority in accordance with the provisions of Civil Servants Act, 1973 read with the rules framed hereunder and, therefore, the right of the appellant who initially was sent to he department on deputation and subsequently was permanently absorbed would be governed in the matter of seniority under the ibid rules. We having carefully considered the contention raised by the learned Deputy Attorney‑General find that crucial date for determination of the seniority of appellant would be the date of permanent absorption of appellant in the Office of Post p Master General, Northern Circle, Rawalpindi and thus the seniority of the appellant in the transferee department would be reckoned from the date of his transfer and not from the date of issue of order of absorption. The appellant being on deputation was retained as permanent employee of the Office of Post Master General, Northern Circle; Rawalpindi and he has been performing his functions to the entire satisfaction of his superiors, therefore, upon permanent absorption in the Office of Post Master General, Northern circle, Rawalpindi, obviously he would become regular employee in the said department with effect from the date of initial induction as envisaged under rule 4 of ibid rules and not from any subsequent date. We find that the service Tribunal has not considered the case of appellant in the light of the rule relating to the determination of seniority of civil servant in such circumstances. For the foregoing reasons, we hold that the seniority of appellant would be reckoned from the date of his induction as UDC in the Office of Post Master General, Northern Circle, Rawalpindi though transfer on 4‑8‑1978. The objection relating to maintainability of appeal raised by the learned Deputy Attorney‑General on the ground that the seniority list published in 1987 remained unchallenged would be of no consequence as on publication of subsequent seniority list in the year 1999, there would be a fresh cause of action in favour of appellant, therefore, the appeal before the tribunal was maintainable. We accordingly, allow this appeal, set aside the judgment of Federal Service Tribunal. However, there will be no order as to costs. S.A.K./D‑28/S Appeal allowed.