1988 PLP 572 (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑This appeal has arisen from dispute over seniority between appellant Miss Shireen Ghory and the respondent No.3, Mr. Nasirullah Awan, both serving in the Tourism Division, Government of Pakistan. Both the appellant and the respondent No.3 were appointed in one batch as the Assistant Directors (Class I), by way of direct recruitment through the Federal Public Service Commission, in the Department of Tourism, then under the Civil Aviation Division, in the year 1966. The appellant ranked above the respondent 3 by virtue of merit. In the year 1971‑72, the Department of Tourism was abolished and it was replaced by another organisation named as Tourism Cell. Both the appellant and the respondent 3 were appointed in the Tourism Cell, with the approval of the Federal Public Service Commission, as Assistant Chiefs (Grade 18), equivalent to the post of Assistant Director held by them in the Department of Tourism. They were assigned inter se seniority as they held in the Department of Tourism. The Tourism Cell was later re‑organised to be known as Bureau of Tourism under the Ministry of Culture, Sports and Tourism. In the year 1976, the appellant was appointed as Deputy Chief (Grade 18) on temporary basis. In the year 1976, Department of Tourist Services was established under the Ministry of Commerce and Tourism (Tourism Division) and posts of a Controller, two Deputy Controllers and an Assistant Controller were created alongwith those of the subordinate staff, to run the department, by notification dated 26th July, 1976, issued by the Tourism Division. Recruitment Rules for the appointment of the Controller, Deputy Controller and Assistant Controller in the Department of Tourist Services were notified on 17‑1‑1977. The appellant was appointed as the Controller in the Department of Tourist Services, Islamabad, by way of promotion to Grade 19 under notification dated 7‑6‑1977, in accordance with the Recruitment Rules, referred to above. Subsequently, the posts of Deputy Chiefs in the Tourism Division were upgraded to Grade 19 and Recruitment Rules therefore were notified on 11‑10‑1977, where under 50% posts of Deputy Chiefs were allocated to promotees. Eventually, the respondent 3, who was the senior most Deputy Chief, after the promotion of the appellant as the Controller, was promoted to the upgraded post of the Deputy Chief (Grade 19). Thereafter, a provisional seniority list of the Deputy Chiefs in the Bureau of Tourism (Tourism Division) was circulated in July, 1984, wherein name of the appellant was not mentioned, while the respondent 3 was mentioned at S.No.l amongst the Deputy Chiefs. The appellant made representation against the provisional seniority list. Her representation was upheld and her name was included in the seniority list of the Deputy Chiefs and she was placed above the name of respondent

3. The respondent 3 made representation against it. On his failing to get reply to his representation, he filed an appeal (No.341 (R)/85). In the meantime, the seniority list was revised by the Secretary, Establishment Division and the name of the appellant was omitted from the seniority list of the Deputy Chiefs and the seniority list was circulated under communication dated 26‑1‑1986 and its copy was forwarded to the appellant for information. The communication whereunder final seniority list was circulated, referred to above, is reproduced hereinbelow:‑ No. 28(1)/84‑A&E GOVERNMENT OF PAKISTAN MINISTRY OF CULTURE AND TOURISM (TOURISM DIVISION) 13‑T/U, Commercial Area, F7/2, Islamabad, The 26th January,1986. Sub:‑ SENIORITY LIST OF OFFICERS OF THE TOURISM DIVISION. In pursuance of the decision of the Establishment Division conveyed vide their O.M. No.l/19/85‑R.4, dated 20th November, 1985, the final seniority list of Deputy Chiefs of the Tourism Division, is circulated for information. The previous seniority list circulated vide this Division's circular No.28(1)/84‑A&E, dated 21‑4‑1985 is hereby withdrawn. (Sd.) (S.M.H.ZAIDI) Deputy Secretary (Admn). Copy forwarded for information to Miss Shireen Ghory, Deputy Secretary, Culture Division, Islamabad. It has been decided by the Establishment Division vide their above‑referred Office Memorandum that the posts of Controller and Deputy Chief belong to two different cadres and departments and that the said posts cannot be shown on the combined seniority list. They have, therefore, decided that since Miss Shireen Ghory was never promoted as Deputy Chief (NPS‑19) on regular basis, hence her name could not be reflected in the seniority list of Deputy Chiefs (BPS‑19) of the Tourism Division. (Sd.) (S.M.H.ZAIDI) Deputy Secretary (Admn. ) The appellant has preferred this appeal against the order contained in the aforesaid communication dated 26‑1‑1986, after waiting for decision on her departmental appeal dated 26‑2‑1986 for ninety days.

2. The appeal has been resisted by respondent 3, contending that the appellant availed of promotion to Grade 19 in the Department of Tourist Services and she was never promoted as Deputy Chief in Grade 19 and, therefore, she could not claim seniority as Deputy Chief, Grade

19. Of course, he has not disputed that the appellant had otherwise ranked above him in the service career till she was promoted to the post of Controller in the Department of Tourist Services and paved way for him to achieve first position amongst the Deputy Chiefs. The Department has furnished the history of the service in the Tourism field and the developments having taken place in its reorganisation from time to time. It has been stated on their behalf that the seniority list impugned in the appeal was revised on the representation by respondent 3 that it was he who was regularly promoted as Deputy Chief, Grade 19, but the appellant was never promoted to that post and she could not be deemed to have been promoted to that post as to have legitimately claimed seniority over the Deputy Chiefs in Grade

19. Other private respondents have not contested.

3. There is hardly any dispute on the factual aspect of the case. The question in dispute is whether the appellant did have lien on the post of the Deputy Chief after her promotion as Controller in the Department of Tourist Services and she could claim seniority over the respondent 3 even on the post of Deputy Chief in Grade 19 and her name should have been enlisted in the seniority list circulated on 20th November, 1985. The appellant admittedly ranked above the respondent 3 in the Bureau of Tourism till she was promoted as Controller in the Department of Tourist Services. The Bureau of Tourism and the Department of Tourist Services were twin organizations of the Tourism Division in the Ministry of Culture and Tourism. The Department of Tourist Services was created in the year 1976 and it was given status of an Attached Department. Separate posts were created for the Department vide notification dated 26‑7‑1976. The posts in Grades 16 and above consisted of a Controller (Grade 19), Deputy Controllers (Grade 18) and Assistant Controllers (Grade 17). Other posts were in Grades 1 to

15. Separate Rules for the method, qualifications and other conditions for appointment to the posts of Controller, Deputy Controllers and Assistant Controllers were notified on 17‑1‑1977, whereby the post, of the Controller was to be filled in initially by promotion from amongst the serving Assistant Chiefs/Deputy Chiefs in the same grade in Tourism Division and subsequent appointment thereto was to be made by promotion from amongst the Deputy Controllers in the Department of Tourist Services or by direct recruitment; and the posts of the Deputy Controllers were to be filled in initially by direct recruitment and later 50% posts by promotion, and the remaining 50$ by direct recruitment; and the posts of the Assistant Controllers were to be filled in by direct recruitment. It follows that there was separate service for the Department of Tourist Services but it was linked with the Tourism Division only to the extent that the initial appointment to the post of the Controller was to be made by promotion from amongst the serving Assistant Chiefs/ Deputy Chiefs in the same grade in that Division. The posts of Assistant Chiefs/Deputy Chiefs were borne in the service set up of the Tourism Bureau. The posts in the Department of Tourist Services were initially temporary. They were made permanent vide notification dated 15th July, 1985 issued by the Department of Tourist Services. As per Recruitment Rules for the posts of the Controller, Deputy Controller and the Assistant Controller 1977, referred to above, the appellant, who was the most senior Deputy Chief in the Tourism Division, was promoted to the post of Controller. By virtue of Section 9 of the Civil Servants Act (LXXI of 1973), she was deemed to have been promoted to the higher grade of service or cadre to which she belonged. This position was actually maintained and she was recalled and posted as Deputy Chief (Gr.19) in the Tourism Division in the year 1982, and the respondent 3, who had been promoted in the meanwhile as Deputy Chief (Grade 19), was posted in her place as the Controller in the Department of Tourist Services. It follows from these events that till 1982 the post of Controller in the Department of Tourist Services and that of the Deputy Chief (Grade 19) in the Tourism Division were interchangeable. It is on the record that both the appellant and the respondent 3 were, later, transferred from the post of Deputy Chief (Grade 19) and the Controller (Grade 19) and posted in the Federal Secretariat. Obviously, the appellant did retain her lien on the post of Deputy, Chief in the Tourism Division throughout. The learned counsel for respondent 3 has, however, argued tat the appellant was not duly approved by the Central Selection Board for promotion to the post of Deputy Chief (Grade 19) end as such she could not be placed in the category of Deputy Chiefs in Grade 19 in the seniority list, and he has placed reliance on Israrul Haq's case, reported in P L D 1981 S C

531. There is hardly any similarity between the appellant's case and that of Israrul Haq. In the latter case, Mr. Israrul Haq was a PSP Officer and was allocated to East Pakistan and was later transferred to West Pakistan, as such, and was allocated to the Government of Sind. He made representations that he should be promoted as DIG, as some of his juniors were already officiating as DIGS in West Pakistan. His representations were turned down on the ground that he did not belong to the PSP cadre in West Pakistan. Getting fed up, he requested for any suitable ex‑cadre assignment. He was taken up as a Deputy Secretary in Grade 19 in the Secretariat. However, he did not abandon his claim in the PSP cadre and pressed it for his promotion as DIG in Grade 19 on the basis of his appointment as Deputy Secretary in Grade

19. On his failing to get the relief departmentally, he filed an appeal before this Tribunal and his claim was upheld. The Supreme Court examined the case threadbare in the appeal filed by the Federation of Pakistan and set aside the decision of the Tribunal and rejected the plea of the appellant that by virtue of his appointment as Deputy Secretary in Grade 19, he was supposed to have been promoted to the rank of DIG in Grade

19. Paragraph 22 of the judgment of the Supreme Court set at rest the controversy over promotion in the case. It is reproduced hereinbelow:‑ "The word "promotion" itself has been defined in Chapter XX (O&M Establishment Manual, Vol. II) as hereunder: "In precise, official terminology, 'promotion' is defined as the advancement of an official from a lower to a higher post or grade against a vacancy specifically reserved from such advancement under the relevant Recruitment Rules." Applying this definition of promotion the appointment of petitioner as Deputy Secretary did not qualify as promotion nor was it expressed to be so when made. When this appointment itself was not a promotion how could it be transposed as a promotion in the cadre to which the petitioner belonged. To get higher pay, rank and status on an ex‑cadre post does not amount to promotion nor can such improvement be carried as of right to the cadre to which the officer belonged." The facts of the instant case, briefly outlined above, are altogether different. The appellant was holding the post of senior most Deputy Chief in the Bureau of Tourism when she was promoted to the post of Controller (Grade 19), in the Department of Tourist Services in the same Tourism Division, and post of Deputy Chief was later upgraded to Grade 19 and the next senior most Deputy Chief, namely the respondent 3, was promoted to the upgraded post; and in due course of time the appellant was transferred as Deputy Chief in Grade 19 in place of respondent 3 who was, in turn, transferred as Controller in the Department of Tourist Services in her place, and subsequently both of them were transferred as the Deputy. Secretaries. It would appear from the Recruitment Rules for the post of the Controller, and that of the Deputy Chief in Grade 19, that both the posts were of identical nature under the same Division and the qualifications for the promotions thereto at that time were almost the same. Since the appellant was appointed as Controller in the Department of Tourist Services by promotion, a temporary post at that time, she did have lien over the post of Deputy Chief in the Bureau of Tourism and, at the relevant time, the promotions were taking place in the form of grades, the appellant was deemed to have been promoted to the post of Deputy Chief in Grade

19. Even if it were assumed that she has not been promoted to the post of Deputy Chief in Grade 19, she, should not have been ignored when promotions to that post were being: made and the anomaly should have been rectified when there was' dispute over the seniority between the appellant and the respondent

3. The contention of the appellant was actually upheld when revised seniority list was circulated under Tourism Division circular No.28(1)/84 A&E, dated 21‑4‑1985, but it was wrongly un done by the decision of the Establishment Division conveyed vide their Office Memo No.1/19/85‑R.4, dated 20th November, 1985, which has been impugned in this appeal.

4. For reasons recorded above, the appeal is allowed and the decision of the Establishment Division contained in their Office Memo No.1/19/85‑R.4, dated 20th November; 1985 revising the seniority; list of the Deputy Chiefs of the Tourism Division and omitting the name of the appellant there from, conveyed to the appellant by Ministry; of Culture and Tourism (Tourism Division) under their No.28(1)/84 A&E, dated 26th January, 1986, is set aside and it is directed that the seniority list circulated under the Tourism Division No.28(1)1 84‑A&E, dated 21‑4‑1985 shall stand restored. No order is made costs. S.Q./404/Sr.F Appeal allowed.