2015 PLP 847 (SCMR)

IJAZ AHMED CHAUDHRY, J.

Through these appeals by leave of the Court, the appellants have challenged the impugned judgment dated 10-4-2013 passed by the learned Federal Service Tribunal whereby the appeal filed by the respondent No. 3 was allowed and appellants were made junior to respondent No. 3.

2. Facts in brief are that appellant Dr. Riffat Kamal appellant in Civil Appeal No.981 of 2013 was appointed on contract basis as Medical Officer (BS-17) in PIMS on 30-3-1986; she was regularized with effect from 22-5-1989 vide notification dated 4-7-1989; she was granted BS-18 on 27-5-1992 and further BS-19 on 24-2-2006. Appellant Dr. Asma Afridi in Civil Appeal No.982 of 2013 was appointed on contract basis as Medical Officer (BS-17) in PIMS on 14-1-1990; she was regularized on 30-3-1992 and further was granted BS-18 on 23-12-2004. Appellant Dr. Roshan Parveen in Civil Appeal No.983 of 2013 was appointed on contract basis as Medical Officer (BS-17) in PIMS on 2-3-1986; she was regularized on 29-9-1989 and further was granted BS-18 on 18-5-1992. Appellant Dr. Fouzia Sabih in Civil Appeal No. 984 of 2013 was appointed on contract basis as Medical Officer (BS-17) in PIMS on 31-1-1988; she was regularized on 27-6-1989 and was granted BS-18 in the year 2005. On the other hand, respondent No. 3 Dr. Muhammad Fayyaz was appointed as Medical Officer on 21-3-1993 in Medical Centre for Federal Government Servants, Quetta. Upon his own request, he was transferred and posted in PIMS vide order dated 9-4-2003 where he joined his services on 28-4-2003 as Medical Officer (BS-17). The Department in the meanwhile had issued seniority lists in the year 1997, 2002, 2005, 2010 and final seniority list was issued in the year 2011 where the respondent No. 3 was placed junior to the appellants. The respondent No. 3 filed representation against the provisional seniority list dated 10-6-2005 with the request to assign him seniority with effect from 1993 i.e. from the date of his initial appointment instead of 28-4-2003, which was rejected on 31-7-2007. The respondent filed an appeal before the learned Federal Service Tribunal which also dismissed being not maintainable. Being aggrieved the respondent challenged the said order before this Court but later withdrew the same. Thereafter, the respondent filed Appeal No. 1518-R(CS)/2011 before the learned Federal Service, which was accepted vide the impugned judgment. Hence these appeals.

3. Learned counsel for the appellants has contended that an employee could not gain seniority in his service without being regularly inducted in that service; that the respondent was appointed on regular basis in the year 2003 as such his seniority is to be determined from the year 2003; that a person selected earlier is to rank senior to the later; that the appointment/regularization of appellants was never challenged by anyone and even the respondent did not challenge the same earlier and that the appointments made prior to 1995 were protected under section 20 of the Pakistan Institute of Medical Sciences Ordinance, 1995.

4. Respondent No. 3, on the other hand, has defended the impugned judgment. He has contended that as per provisions of the Civil Servants Act, 1973, his appointment with effect from 21-3-1993 was a regular appointment; that the posts in BS-16 and above as per section 7(1)(a) of the Federal Public Service Commission Ordinance, 1977, have to be filled in by the FPSC and the persons appointed against theses posts in violation of prescribed procedure cannot be regularized against the civil posts unless they are declared fit by the FPSC.

5. We have heard learned counsel for the appellants as also respondent No. 3 in person and have gone through the impugned judgment.

6. Admittedly, Pakistan Institute of Medical Sciences (PIMS) was an autonomous body managed by Board of Governors and later in the year 1995 vide Pakistan Institute of Medical Sciences Ordinance, 1995, it was declared as an attached Department of the Ministry of Health. The appellants were duly appointed by the Board of Governors of the PIMS before promulgation of the Ordinance, 1995. The learned Service Tribunal while accepting the appeal of the respondent has observed that the "seniority of Medical Officers of the PIMS, Islamabad was required to be determined on the basis of dates of regular appointments of the members of the cadre to said post and the private respondents having not been appointed in prescribed manner could not claim their seniority against the appellant who from the first day was appointed by the competent authority on the recommendation of the Federal Public Service Commission in the respondent-Ministry." However, the learned Tribunal failed to understand that at that time it was the Board of Governors which was competent to appoint the appellants and has also failed to take into consideration section 20(b) of the Ordinance, 1995, which clearly stipulates as follows:-- "Everything done, action taken obligations on liabilities incurred, rights and assets acquired, persons appointed or authorized, jurisdiction or powers conferred, endowments, bequests, funds or trusts created, donations, or grant made, orders issued and rules or regulations made under any order or resolution of the Government by the Board of Governors shall be deemed to have been respectively done, taken, incurred, acquired, appointed, authorized, conferred, created, made or issued under this Ordinance."

7. According to this Section, all the actions taken before promulgation of this Ordinance shall be deemed to have been respectively done. Appellants were regularized on 22-5-1989, 30-3-1992, 29-9-1989 and 27-6-1989 respectively in BS-17. Whereas the respondent who was appointed as Medical Officer on 21-3-1993 himself requested for transfer to PIMS and vide order dated 9-4-2003 was posted in PIMS. He was given an option either to join PIMS on regular basis or to go back to which he opted to stay in PIMS and thereafter he was appointed in PIMS through transfer on regular basis against the vacant post in the year 2003. The Department has rightly determined his seniority from the year 2003. Rule 4 of the Civil Servants (Seniority) Rules, 1993, clearly stipulates that 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. This Court in S. M. Farooq v. Muhammad Yar Khan (1999 SCMR 1039) has candidly held that "civil servant on his appointment by transfer would rank junior to those who were already serving in permanent capacity in the same grade." Respondent was appointed as Medical Officer in the year 1993 and all the appellants admittedly were regularized prior to the year 1992. So, even on this ground that the respondent was appointed in the year 1993, he cannot claim seniority over the appellants, who were earlier regularized before his appointment.

8. For what has been discussed above, these appeals are allowed and the impugned judgment of the learned Federal Service Tribunal is set aside. Department shall issue a final seniority list pursuant to the directions issued in this judgment. MWA/R-2/SC Appeal allowed.