1993 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑Appellant Mr. Sher Bahadar Arbab and respondents 1 and 2 M/s. Muhammad Usman Rajput and Fayyaz Ahmed appeared in CSS examination of 1985 `14th batch'. They were declared successful. The appellant was given merit position as 169 while the respondents 1 and 2 as 170 and 172 respectively. They were allocated to Accounts Group, and were deputed for training in the Civil Services Academy and they retained their seniority according to their original position. The Federal Public Service Commission (hereinafter referred to as the Commission) notified the meritwise seniority of the Accounts Group and the appellant was shown above respondents 1 and

2. They all were promoted to BPS‑18 in the same Group but their seniority was disturbed in the seniority list issued in the year 1992, wherein appellant was shown junior to respondents 1 and

2. The appellant made a departmental representation against his seniority but the same was rejected by the Auditor‑General of Pakistan vide letter dated 11‑5‑1992.

2. The appellant argued his case himself and subsequently his Advocate Mr. Qazi Muhammad Anwar also joined. The contention of the appellant is that he had been given seniority by the Commission and this seniority could not be disturbed by any other authority. He further argued that his seniority was to be regulated under paragraph A (ii) of the General Principles of Seniority which provides that if two or more persons are recommended in open advertisement by the FPSC, their inter se seniority would be determined in the order of merit assigned by the Commission.

3. The contention of the learned Standing Counsel Mr. Sheikh Riazul Haq is that the appellant and the respondents 1 and 2 secured equal marks and the department while considering this factor determined their seniority on the basis of older in age. It was also argued that in the Academy, the appellant secured less marks and, therefore, his rights have not been infringed while fixing his seniority below the respondents who got higher marks. To this, the appellant stated that this formula will start from the 10th Batch and is not applicable to his case.

4. The appellant and the respondents 1 and 2 secured equal marks while qualifying the CSS Examination and the Commission was not, perhaps, pointed out this fact. Therefore, the Commission formulated the seniority and placed the appellant at S. No.

1. They joined the Accounts Group and it was found that position is otherwise. Therefore, the case was examined by the Auditor General of Pakistan and this irregularity was rectified by the department and F seniority list was issued in 1992 wherein the appellant has been shown as junior to respondents 1 and

2. Even if the contention of the appellant is accepted that his seniority is to be determined under Paragraph A (ii) of the General Principles of Seniority on the basis of merit assigned by the FPSC, but the fact cannot be denied that the appellant secured less marks than the respondents 1 and 2 at the Final Passing Out after joining the Academy and the marks so obtained were as under: Appellant, 1129 Respondent No. 1 Muhammad Usman Rajput 1298 Respondent No. 2 Fayyaz Ahmed. 1297 and in no circumstance he can get the seniority over and above the respondents 1 and

2. On the other hand, the respondent department has relied on the provisions of Paragraph B (ii) of the General Principles of Seniority and determined the seniority of the appellant vis‑a‑vis the respondents in accordance with the provisions contained therein and while rejecting the departmental representation of the appellant. The Auditor‑General of Pakistan sent the following reply, and the same is reproduced below: "The undersigned is directed to refer to your Office Memo No. Admn. Audit/Rep/B‑18/91‑92/327, dated 8‑4‑1992, on the above subject, and to inform that M/s. Sher Bahadar Arbab, Muhammad Usman Rajput and Fiaz Ahmed had obtained equal marks in the Competitive Examination 1985 i.e. 739 marks. Their inter se seniority has been determined keeping in view their dates of birth which are as under:‑ (i) M/s. Muhammad Usman Rajput. 30‑5‑1953 (ii) Fayyaz Ahmed. 19‑7‑1956 (iii) Sher Bahadar Arbab 18‑2‑1958 (2) In view of the above position, the seniority of Mr. Sher Bahadar Arbab has correctly been determined in accordance with Para B(ii) of General Principles of Seniority (Page 226 of ESTACODE 1989 Edition). (3) The officer concerned may be informed accordingly. (Sd.) Abdur Rahim Siddiqi, Accounts Officer/IDC‑II.

5. Pakistan Finance Services (Probation, Training and Seniority) Rules, 1972 regulate the seniority of the officers selected for Audit and Accounts Service. Rule 9 (1) lays down: "The probationers appointed on the results of the same Central Superior Services Examination shall rank in seniority inter se in accordance with the sum of:‑ (i) the marks obtained in the Central Superior Services Examination; (ii) the marks obtained in the examination referred to in sub‑rule (1) of rule 5; (iii) the marks obtained from the Director for conduct and general performance; and (iv) the marks obtained in the examination referred to in sub‑rule (1) of rule 6: Provided that where two or more Probationers obtain equal marks in the aggregate, the one who gets more marks in the examination referred to in sub‑rule (1) of rule 6 shall be senior, and when the marks obtained in that examination are also the same the older in age shall rank senior to the younger. " Under proviso to sub‑rule (1) of Rule 9 of the Pakistan Finance Services (Probation, Training and Seniority) Rules, 1972 read with Paragraph B (ii) of the General Principles of Seniority, the seniority of the appellant vis‑a‑vis the respondents 1 and 2 has rightly been determined and is unexceptionable. Furthermore, the appeal fails on the legal point of non‑joinder of necessary party as the appellant has not impleaded. The Federal Public Service Commission as party on the basis of which he claims seniority which is fatal.

6. The upshot of the above discussions is that the appeal fails both on facts and law, and is accordingly dismissed, with no order as to costs. A.A./853/Sr.F Appeal dismissed