1993 PLP (C (PLC(CS))

SPED ALLY MADAD SHAH (CHAIRMAN): ‑‑Appellant Mr. Muhammad War Hussain, Superintendent (Preventive Service) Customs House, Karachi, has preferred this appeal for determination of his seniority vis‑a‑vis respondent No. 5, Mr. Badar Alam Shah, Superintendent (Preventive Service), Customs, Karachi.

2. The facts in the background, which are not disputed, are that the appellant and the respondent No. 5 were selected alongwith some other candidates, in one batch, as Preventive Officers, Customs House, Karachi in the year 1958. They were issued separate letters of appointments. The appellant joined as Preventive Officer on 12‑10‑1958, whereas the respondent No. 5 joined on 14‑10‑1958. A joint order of their appointment indicating the dates of their appointment was issued on 15‑11‑1958. The date of appointment of the appellant was shown as 10‑10‑1958 (F.N.) and that of the respondent No.5. as 14‑10‑1958 (A.N.). However, the respondent No. 5 was considered senior to the appellant on the ground that his position in the merit list was above that of the appellant and that position was maintained in the case of their confirmations and promotions and the seniority lists until the decision of this Tribunal in an Appeal No. 60(K)/1981, decided on 16‑1‑1984, holding that seniority was to be reckoned on the basis of the dates of joining service irrespective of the position achieved on merit determined by the selection authority. Following the decision of the Tribunal in the said case, seniority of the Preventive Officers, Customs House, Karachi was re‑determined in the year 1985 and the name of the appellant was placed above that of the respondent No. 5 on the basis of the dates of their joining duty as Preventive Officers and such list was issued. The respondent No. 5 lodged protest with the Central Board of Revenue. His representation was accepted as per letter dated 9‑9‑1986 to the Collector of Customs (Preventive), Karachi on three grounds, firstly that he was promoted as Inspector (Preventive Service) earlier than the appellant and, therefore, the verdict in Appeal No. 60(K)/81 was not applicable to his case; secondly that he (the respondent No. 5) was shown senior to the appellant in the Customs House (Preventive) letter No. C.527/60, dated 13‑2‑1965; and thirdly that he (the respondent No. 5) was confirmed as Preventive Officer earlier than the appellant, and such Office Order No. 273/87‑Estt.(P) was issued on 7‑12‑1987. The appellant made departmental appeal to the Central Board of Revenue on 2‑1‑1988. Failing to find decision on his departmental appeal within the requisite period of 90 days, he preferred this appeal on 30‑4‑1988 for setting aside the order dated 7‑12‑1987 and declaring him senior to the respondent No. 5 and reckoning his seniority over and above the respondent No. 5.

3. The respondents have resisted the appeal. Collector of Customs (Preventive) has filed written objections to defend the appeal on behalf of the Government. The respondent No. 5 has filed written objections separately to vindicate his claim of seniority above the appellant.

4. At the time of hearing of appeal, the appellant argued his case himself and so was done by the respondent No. 5, while the departmental respondents were represented by Mr. S: Taslim Hussain, Second Secretary, CBR. Mi. Niaz Ahmad Khan, Standing Counsel for the Government also made his contribution on the legal aspects of the case, while representing the Federal Government.

5. The subtle question for determination is whether the inter se seniority of the candidates selected in one batch is to be determined on the basis of the merit achieved by them, or from the dates of their actual entering upon the assignment selected for. Provision for determination of seniority is contained in section 8 of the Civil Servants Act, 1973. It provides, inter alia, that the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, as may be prescribed. It also provides that seniority on initial appointment to a service grade or post shall be determined as may be prescribed. The term "prescribed" means prescribed by rules as per definition given at clause (f) of subsection (1) of section 2 of the Civil Servants Act, 1973. "Rules" are defined at clause (g) of subsection (1) of section 2 of the Civil Servants Act, 1973 as rules made or deemed to have been made under the Act. Section 25 of the Civil Servants Act, 1973 relates to Rules. It provides that the President or any person authorised by the President in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purposes of this Act. It also provides in sub‑rule (2) that any rules, orders or instructions in respect of any terms and conditions of service of a civil servant duly made or issued by an authority competent to make them and in force immediately before the commencement of the Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of the Act, be deemed to be rules made under this Act. No rules on seniority have been made after the enactment of the Civil Servants Act, 1973 and, therefore, the rules, orders and instructions already existing are followed with appropriate modifications made from time to time. Those rules, orders/instructions were circulated as "General Principles of Seniority" under Office Memorandum No.1/16/69.D.II, dated 31st March. 1970 and are published as "Annexure I" at page 153 of ESTACODE, 1983 edition. The relevant provision is contained at ruse (ii) of the said General Principles of Seniority, provoking that if two or ore persons are recommended in open advertisement by the Federal Public service Commission, their inter se seniority mould be determined in the order it merit assigned by the Federal Public Service Commission. By application of is rule, the respondent No. 5 who had acquired higher position than the appellant in the merit list prepared by the selection authority, has the case to reckon seniority over and above the appellant but the anomaly has arisen on account of late joining the service by him (the respondent No. 5). There does not seem any specific provision in the general principles of seniority or elsewhere for resolving the anomaly. The decision of the Tribunal in Appeals no. 60(K)/1981, referred to above, relied upon by the appellant, is that seniority was to be reckoned from the date of joining service and not on the basis of merit. The same view was adopted by the Tribunal in Appeals no.138(R)/82 and 110(R)/82, decided on 14‑2‑1984 and appeals were referred against that decision in the Supreme Court and the Honourable supreme Court set aside the decision of the Tribunal and held that the minority of the candidates selected in one batch was to be determined an accordance with the merit assigned by the Federal Public Service: Commission and not on the basis of joining the assignments. The decision of the Supreme Court is reported in 1991 SCMR 1632 in appeals filed by Ziaul Haq and others Secretary, Ministry of Education and others. In the light of the decision of Supreme Court, the claim of the appellant of seniority above the pendent No. 5 on the basis that he had simply joined the service earlier than ac respondent No 5 is not sustainable and was rightly rejected under the impugned order

6. It may also be added that the selection of the appellant and the respondent No. 5 took place in the year 1958 and his seniority position vis‑a‑vis the respondent No. 5 was lower upto 1984, in so much so, that the respondent No. 5 was confirmed in service earlier; he was given promotion earlier and his name was placed above the name of the appellant in the seniority list of 1975 and the appellant had not made even a representation throwing challenge to ` the seniority assigned to and enjoyed by the respondent No. 5 for so many Years and it was too late for him to lay claim for seniority by filing this appeal in the year 1988. For the reasons recorded above, there as absolutely no merit in appeal and it stands dismissed, with no order as to costs. A.A./747/Sr.F Appeal dismissed.