1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑Appellant Mrs. Farhat Maqbool has been serving as an Assistant Professor in the Directorate of Federal Government Educational Institutions (C&G), GHQ (hereinafter referred to the Directorate). She was initially appointed as a Lecturer (BPS‑17), ad hoc, on 15‑2‑1981. Her appointment was regularised with effect from 9‑3‑1983. In the year 1985, some posts of Assistant Professors in BPS‑18 in the Directorate were advertised by the Federal Public Service Commission. She applied for one of the posts and was selected as per communication from the Commission dated 28‑7‑1986. After approval of the Establishment Division, she was issued letter of appointment dated 31‑12‑1986 by the Ministry of Education. The Ministry of Education also addressed a letter dated 1‑1‑1987 to the Directorate to issue letter of offer of appointment to the appellant. She accepted the offer of appointment and assumed charge of the post of Assistant Professor on 4‑2‑1987. Notification of assumption of duty by her on 4‑2‑1987 was accordingly issued by the Directorate on 25‑2‑1987. She made representation to the Director on 10‑3‑1988 to notify her appointment as an Assistant Professor and the assumption of duty of that post with effect from 23‑12‑1986 when her appointment was approved by the Establishment Division. Her representation was partly accepted in the Directorate, which directed the Principal of the F.G. College for Women, where the appellant was serving, to issue fresh notification of the appointment of the appellant with effect from 31‑12‑1786 on the basis of the appointment letter dated 31‑12‑1986 issued by the Ministry of Education. Accordingly, a revised notification was issued of the assumption of the charge of the post of Assistant Professor by the appellant on 31‑12‑1986 in super session of the earlier notification dated 25‑2‑1987. The Ministry of Education took notice of the aforesaid event and issued a notification dated 1‑10‑1989 to the effect that the appellant had assumed the charge of the post of Assistant Professor on 4‑2‑1987 as notified by the Directorate on 25‑2‑1987 and the second notification dated 9‑7‑1989 of her assumption of charge with effect from 31‑12‑1986 was cancelled. The appellant filed departmental appeal to the Secretary, Establishment Division, on 23‑10‑1989. Failing to find response during the statutory period of 90 days, she preferred this appeal on 20‑2‑1990 to seek the following relief:‑ "It is, therefore, respectfully prayed that the impugned Notification dated 1st of October, 1989, issued by the Ministry of Education, respondent No. 1 may kindly be set aside and the earlier Notification dated 9th July, 1989 may kindly be restored and it be declared that the appellant is entitled to seek seniority from 31st of December, 1986 in the interest of justice."

2. The grounds urged by the appellant are that she was already serving as a Lecturer in the same Directorate and on her selection by the Federal Public Service Commission for the post of an Assistant Professor in the same Directorate, she was deemed to have been appointed to that post from the date the Commission recommended her name, and in the alternative from the date her appointment was approved by the competent authority in the Establishment Division viz. 31‑12‑1986 and the subsequent issuance of the notifications/orders of her appointment and charge assumption report did not put her behind and the notification issued by the Ministry of Education on 1‑10‑1989 was uncalled for, and more so since it was issued behind her back without giving her any opportunity for placing her case. She has claimed that she was deemed to have assumed charge of the post of the Assistant Professor latest on 31‑12‑1986 and she is entitled to reckon her seniority as such from the said date viz. 31‑12‑1986.

3. The appellant has impleaded the Secretary, Ministry of Education and the Director, Federal Government Education Institutions (C&G), GHQ, Rawalpindi as the respondents 1 and 2 and also 16 Assistant Professors named in the memo of appeal, serving in the same Directorate as Assistant Professors by way of promotion. The Federal Government as well as the Director, Federal Government Educational Institutions (C&G), GHQ, have resisted the appeal and contended that the appellant, by virtue of her direct appointment as Assistant Professor on her selection by the Federal Public Service Commission, was to reckon her seniority as the Assistant Professor from the day she assumed charge of the post. Their stand is that proper notification of the assumption of the charge of the post of Assistant Professor by the appellant was issued on 25‑2‑1987 showing her date of charge assumption as 4‑2‑1987, whereas super session of that order by the Notification dated 9‑7‑1988 was uncalled for and, therefore, a proper notification dated 1‑10‑1989 impugned in the appeal was issued by the Ministry of Education. They have also challenged the maintainability of the appeal. From amongst the respondents 3 to 18, the respondents 3 to 14 have filed joint written objections through their Advocate. The respondent No. 17 has filed objections separately. The respondents 15, 16 and 18 have not filed written objections they were represented at the hearing by the Advocate who represented the respondents 3 to

14. The contention of the respondents is that the appellant could count her service as an Assistant Professor from the date she assumed charge of the post viz. 4‑2‑1987. The respondents 3 to 14 have also contended that the appeal is time‑barred and it is also bad for non‑joinder of necessary parties, i.e. the Principal of the Federal Government College for Women and the Establishment Division.

4. The learned counsel for the appellant reiterated the grounds urged in the memo of appeal, referred to above. He urged that the appellant was deemed to have entered service as Assistant Professor from the date her appointment order was issued viz. 31‑12‑1986 even if she formally took over charge of the post on 4‑2‑1987 as she was already in service in the same Directorate. He placed reliance on the cases reported in 1989 PLC (C.S.) 752 and

909. He further urged that the notification dated 9‑7‑1988 notifying the appellant's date of assumption of duty as 31‑12‑1986 had been acted upon and it could not be superseded without giving her notice. He placed reliance in support of his arguments on the general principles of seniority published in ESTACODE (1989) at page

225. On the other hand, the Standing Counsel representing the Federal Government, the respondents Nos. 1 and 2, urged that the first notification dated 25‑2‑1987 of the assumption of charge of the post of Assistant Professor by the appellant on 4‑2‑1987 was in accordance with the appointment order and its rescission by the subsequent notification dated 9‑7‑1989 was not sustainable and, therefore, the Ministry of Education had to issue the impugned notification dated 1‑10‑1989 and there was nothing wrong in doing so. He also placed reliance on the general principles of seniority. The learned counsel for the private respondents contended that the letter of appointment of the appellant dated 31‑12‑1986 constituted only letter of offer of appointment which was to be given effect to after compliance of certain conditions and the assumption of the duty by the appellant commenced from the day she took over charge of the post viz. 4‑2‑1987: He placed on record a copy of the charge assumption report which was signed by the appellant and was withheld by her.

5. The entire controversy is over the date of assumption of charge of the post of Assistant Professor by the appellant. The undisputed events are that the appellant was serving as a Lecturer (BPS‑17) in the Directorate of Federal Government Educational Institutions (C&G), GHQ. Her appointment as Assistant Professor was by way of direct recruitment made through the Federal Public Service Commission. The Commission recommended her name for appointment by letter dated 28‑7‑1986. The matter was referred to the Establishment Division for approval of her appointment as the Assistant Professor. The Establishment Secretary accorded his approval to her appointment on 23‑12‑1986. The approval to the appointment of the appellant as Assistant Professor was communicated to the Ministry of Education on 31‑12‑1986. The Ministry of Education issued a letter of offer of appointment to the appellant on the same date viz. 31‑12‑1986. She gave charge assumption report on 4‑2‑1987. Thus, the appellant became regularly appointed Assistant Professor with effect from 4‑2‑1987 when she took over charge of the post. Her earlier appointment as a Lecturer did not entitle her to count her service from any earlier date. The regular appointment of a directly appointed candidate starts from the day the appointee takes over charge of the post. The general principles of seniority published in ESTACODE (1989) at page 225 provide that an officer recruited directly by the Commission in open competition would count seniority from the date of the recommendations by the Commission if he already holds the same post on ad hoc basis, and in other case he would count his seniority from the date of his joining the post after recommendation of his name by the Commission. Since the appellant was not holding the post of Assistant Professor on or after her selection by the Commission until 4‑2‑1987, her appointment as Assistant Professor took place and became operative on and from 4‑2‑1987 when she assumed the charge. The issuance of the notification dated 9‑7‑1988 by the Directorate that the appellant had assumed charge of the post of Assistant Professor on 31‑12‑1986 and thereby superseded their earlier notification dated 25‑2-1987 of the charge assumption report of the appellant as 4‑2‑1987 was either a misconceived action or deliberate manoeuvring to favour the appellant to get benefit in seniority which she has clamoured for and was rightly cancelled by the Ministry of Education by the impugned notification dated 1‑10‑1989.

6. The appellant has also claimed seniority from 31‑12‑1986. As discussed above, she assumed charge of the post of Assistant Professor on 4‑2‑1987 and she could reckon seniority only from that date and not from any earlier date. It may be added that arguments were also addressed on the question of seniority of the appellant vis‑a‑vis the respondents 3 to 18 but that question was not agitated before the departmental authority for determination. The question of its determination by the Tribunal will arise after it is finally determined at the departmental level.

7. Adverting to the legal objections, the respondents have contended that "the appeal is not maintainable as the departmental appeal was not addressed to the competent authority and was time‑barred and also that the appeal before this Tribunal is time‑barred and also on account of non‑joinder of the Secretary, Establishment Division." The appellant has preferred this appeal against the notification of the Ministry of Education dated 1‑10‑1989. She has filed a photostat copy of undated appeal made to the Secretary, Establishment Division. She has stated in paragraph 11 of the memo of appeal that she had preferred departmental appeal on 23‑10‑1989 and she awaited decision thereon for more than 90 days and then preferred this appeal on 20‑2‑1990. Thus, the appeal before the Tribunal was filed within 120 days after filing appeal to the departmental appellate authority within the prescribed period of thirty days. Secretary, Establishment Division was the appointing authority and therefore, the appeal made against the order of Ministry of Education lay to the Establishment Secretary and that was done. Accordingly, the appeal does not suffer from the lacuna that it has been filed without preferring departmental appeal to the proper authority, and it is also not time‑barred. Since the appeal of the appellant to the Secretary, Establishment Division was not decided by the time she preferred this appeal. The Establishment Division was not a necessary party. Obviously, the appeal does not suffer from any of the legal lacunae agitated by the respondents.

8. For the reasons recorded above, the appeal of the appellant seeking setting aside of the notification dated 1‑10‑1989 and her claiming seniority on the basis of the notification dated 9‑7‑1987 is devoid of merit and is dismissed as such. No order is made for costs. A.A./676/Sr.F Appeal dismissed.