1979 PLP (C (PLC(CS))

5. The learned counsel further pointed out that the officers recruited through promotion from Class‑II were placed in the senior scale from time to time, irrespective of their relative seniority, vis‑a‑vis, the directly recruited officers, because it was a pre‑condition attached to the direct recruits, to render at least five years experience in the Class I service, before being admitted to the senior scale. Whenever a directly recruited officer was ignored for appointment to the senior scale on account of not having completed five years service and a Junior Officer belonging to the promoted category, was appointed to that scale, he invariably regained his seniority over his promoted colleague when after completion of five years, he was admitted to the senior scale. In view of this specific condition of operation of rules of promotion, the seniority once fixed in Class I junior scale was kept intact throughout, irrespective of the dates on which various officers were admitted to senior scale.

6. He also pointed out that the appellant having been appointed substantively to Class I junior scale from an earlier date than the respondent officers could not be made junior to them, in any circumstances.

7. It was also pointed out by the learned counsel for the appellant that the admission of the respondent officers to senior scale was allowed without any authority of rules and regulations, because none of them had completed five years service in Class I. As such, their admission to senior scale was irregular and ultra vires of the rules. Such appointments to senior scale could not, therefore, be considered as regular appointments within the meaning of section 8 of the Civil Servants Act, 1973, even if the question could be brought under the mischief of new rules at any stage. The admission of the senior scale of the respondent officers in super session of the appellant could, at the most, be considered as ad hoc appointments and not regular continuous officiation within the meaning of the above‑quoted rule, so as to justify to count the seniority from the date of that appointment. It was also pointed out that immediately after the issue of new seniority list on 21st April 1976, respondents 3 to 6 were promoted further to grade 19 in May 1976 and respondents 7 to 11 were being promoted shortly. There was no stipulation in any order, rule or instructions of the Government to empower the appointing authority to relax the minimum requirement of 5 years experience in favour of the departmentally promoted officers for admission to the senior scale during the period they were so admitted. Their admission to the senior scale, therefore, was on ad hoc basis and not regular.

8. The learned counsel for the appellant also pointed out that under the rules of recruitment applicable during the relevant period, the depart mentally promoted officers could be appointed against only 25 per cent vacancies in the Class I, junior scale. Some of the departmental officers were appointed to that scale in excess of the quota reserved for them. The obvious condition of their appointment was that they would vacate the post when the directly recruited officers became available in due course. It was, therefore, not correct on the part of the Government to treat these officers as regularly appointed to Class I junior scale and then to admit them to the senior scale subsequently without observing the quota reserved for their category. In the circumstances, to treat them as to be continuously officiating on regular basis with effect from the dates they were holding these posts on ad hoc basis is not covered by any rules. The learned counsel further invited a reference to the instructions issued by the Establishment Division under their a/o No. 1/21/75‑D. II, dated the 9th July 1975. The relevant portion of this letter is quoted below The prescribed minimum length of service is a condition, for eligibility for promotion and does not confer a right to promotion. Where a senior person has not done prescribed service, the junior, as a rule, should not be considered even if he fulfils the prescribed length of service condition. In this particular case, Mr. Muhammad Hafeez should not be promoted over the bead of four of his seniors.

9. The learned counsel for State raised preliminary objection that tile appeal is hit by section 4 (1) (b) of the Service Tribunals Act, because it relates to the determination of fitness to hold a particular post. It was also argued on behalf of the respondents that since the seniority lists issued in 1972 and on 21‑6‑76 were provisional, accordingly no appeal lies to the Service Tribunal against an order of the Government which is not final. Both these preliminary objections have to be discarded. First because the contents of the appeal relate to the restoration of seniority and not determi nation of fitness to hold a seniority list issued with a stipulation that unless objections to the emplacements contained therein are received up to a particular date, no further objections would be entertained. After the expiry of that crucial date, the emplacements have to be treated as final. The order governing this seniority is, therefore, final within the meaning of section 4 (1) of the Service Tribunals Act, 1973.

10. The learned counsel for State argued that it was not correct that the officers belonging to the departmental category were appointed against the posts falling in the quota of direct recruitment. He pointed out that 25 posts were reserved under the orders of the competent authority for the existing incumbents in 1959 on the constitution of the cadre of Customs and Central Excise Service. Any posts which were created substantively were filled on the basis of 75 per cent direct recruitment and 25 per cent. departmental promotions.

11. It was admitted by the learned State counsel that officers belonging to the departmental category were appointed to senior scale posts irrespective of their seniority as Assistant Collectors, which was fixed in 1978 under the applicable rules. It was also admitted that under the old rules, once a superseded officer was appointed subsequently to the senior scale post, he regained his original seniority irrespective of the date of his appointment to senior scale.

12. It was brought to the notice of the Tribunal by the State counsel that during the period these promotions were made accordingly to a convention, four years service m Class I junior scale was necessary both for the direct recruits and the departmental promotees. The appointment of the departmental officers was made to the senior scale after completion of four years in each case. This minimum period of service was increased to five years subsequently, and Mr. Maqsood Ahmad, the appellant, was promoted to grade 18 after completion of five years service in 1974.

13. It was admitted by the Government side that the appointment of the respondent officers to the senior scale was on ad hoc basis, and has not so far been regularised. They were, however, assigned seniority under section 8 of the Civil Servants Act treating their appointment to the senior scale as continuous officiation within the meaning of these provisions. It was also admitted that the appellant was originally senior to the respondent officers as Assistant Collectors under the old rules, but this change of seniority could not be helped due to the provisions of Civil Servants Act. The senior scale appointment was treated as appointment on promotion to grade 18 of the national pay scales and the officers so appointed were deemed to have come on to grade 18 with effect from these dates for the purpose of seniority. It was further admitted by the Government side that no formal promotions of these officers to grade 19 has been ordered or notified after the coming into operation of the Civil Servants Act. It was, however, agreed that the appellant was promoted to grade 18 with effect from 1‑11‑1974.

14. It was the view of the Government side that the seniority under old rules was protected only up to 15‑8‑73, but this seniority was subject to be regulated by the provisions of the Civil Servants Act after the operation of the same and no protection was available under, these provisions after 15‑8‑73 even in respect of the seniority emplacements determined under the old rules prior to 15‑8‑73.

15. After hearing both the sides, the following facts emerge regarding the correct interpretation of the rules operative before 15‑8‑73, and after that date.

16. It could not be established that any recruitment of the promoted officers has been made against quota reserved for the direct recruitment. In the absence of any established proof to the contrary, we come to the conclusion that the statement made by the Government in this respect has to be taken as correct. It was, however, ascertained on reference to the dates of appointment to the junior scale and senior scale of the respondent Officers that respondent Mr. Aqil Ahmad Khan was appointed as Assistant Collector with effect from 18‑12‑68 and to the senior scale with effect from 1‑12‑1972. The respondent, Mr. N. M. Alvi was appointed to the junior scale with effect from 3012‑68 and to the senior scale with effect from 1‑12‑

72. It was, therefore, incorrect on the part of the Government to say that none of the respondents was appointed to senior scale before completion of four years length of service prescribed by convention for such promotions. These two officers have been promoted, in fact, before completion of four years length of service in the junior scale. The Government side could not produce any authority under which this relaxation could be made by the Central Board of Revenue or by the Government. In the absence of any such authority, it is tantamount to discrimination between various officers to appoint some of them after completion of four years and others earlier than that period. This view is supported by the contents of the Establishment Division's a/o dated 9th July 1975, quoted earlier, according to which where a senior officer has not done prescribed service, the junior, as a rule, should not be considered even if he fulfils the prescribed length of service condition.

17. A reference is invited to para. 2 of the Establishment Division's letter dated 1‑9‑75, which has been quoted earlier in the judgment. It is clear from the provisions of that para that seniority fixed under the old rules in respect of the officers promoted prior to 15‑8‑73 is protected. It was, therefore, not correct on the part of the Government to argue that seniority so fixed under the old rules was protected up to 15‑8‑73 and subsequently it was subject to refixation under the provisions of the Civil Servants Act. This seniority was protected up to 15‑8‑73 in any case, because new provisions had not yet been enacted. The intention Of the Government instructions referred to above, is clear, therefore; that such seniority would be protected even for future, irrespective of the provisions of section 8 of the Civil Servants Act, 1973. If the interpretation of the Central Board of Revenue is accepted, then the issue of the instructions of the Government as contained in their letter dated 1‑9‑1973, would not only be irrelevant but would look meaningless.

18. It has been admitted by the Government side that the appointment of the respondent officers to the senior scale was on ad hoc basis. We are accordingly not persuaded to hold that seniority in the senior scale based on ad hoc appointments, which is not a regular appointment within the meaning of the provisions of seniority rules or the Civil Servants Act, in any case, should be taken as correct consideration for fixing the seniority in grade 18 on the basis of continuous officiation. Ad hoc appoint ments are only temporary arrangements further subject to regularisation under the prescribed procedure and rules. Unless these appointments are regularised with effect from the dates the original promotions were made, they would not constitute regular officiation within the meaning of section 8 of the Civil Servants Act. Therefore, the seniority regulated in grade 18 with effect from the dates on which ad hoc appointments were made, is not correct.

19. It may be mentioned that prior to the introduction of National Pay Scales, the number of scales was much larger which was considerably reduced in 1972 on the introduction of National Pay Scales, wherein only 23 grades were retained. It is also appreciated that the senior scale prior to March 1972 carried a scale of Rs. 600‑1,150, whereas grade 18 after the National Pay Scales carries a scale of Rs. 1,000‑1,

800. There being considerable over‑lapping and prominent difference between the minimum and maximum of the two scales, it would not be correct, logically to treat grade 18 as a substitute for former senior scale. At the most, these two scales can be identified, if at all necessary, for the purpose of pay fixation and not seniority.

20. It has also been admitted by the Government side that the respon dent officers were not promoted formally to grade 18 after 15‑8‑

73. It is only the appellant who has been promoted to grade 18 with effect from 1‑11‑

74. Since the respondent officers have not been promoted to grade 18, the regulation of seniority under section 8 of the Civil Servants Act, is a misconnect and cannot sustain.

21. In view of the above facts, we accept the appeal of Mr. Maqsood Ahmad, the appellant. It is ordered that the seniority originally enjoyed by him on the basis of the seniority list issued in 1972, be restored, with all the consequential benefits accruing to him for consideration of promotion, etc.

22. Parties be informed.

23. No order as to costs. Appeal accepted,