1996 PLP (C (PLC(CS))

S P 40

2. Dr. Muhammad Arif 78 78 D P 20

3. Ch. Mueen Afzal 80 87 D P 22

4. Mr. Shakeel Ahmed 81 75 D S 60

5. Dr. Muhammad Amjad 85 76 D P 24 6.Mr. Muhammad Zubair Kidwai 87 70 S P 25 S = D = P = Supersession Deferment Promotion

5. The rule position is that an officer who is deferred by the C.S.B. for one or the other reason, does not lose his seniority when he is subsequently promoted. Upon promotion, he regains his inter se seniority with his batch-mates and ranks senior to those promoted officers who were junior to him in the lower rank. When an officer is however, superseded, he loses his seniority vis-a-vis his batch-mates and is accorded a new seniority according to his seniority position amongst officers being promoted with him. Viewed in this perspective it will be seep that Mr. Moizuddin Ahmed and Mr. Muhammad Zubair Kidwai who were superseded in 1988, were to lose their seniority vis-a-vis their colleagues. But, Messrs Dr. Muhammad Arif, Ch. Mueen Afzal and Dr. Muhammad Amjad who were deferred in 1988 but approved for promotion in 1990, regained their seniority vis-a-vis their juniors when promoted in 1990. Mr. Shakeel Ahmed though deferred in 1988, was superseded in 1990. He was finally approved in 1991, and has thus been ranked alongside other, promoted with him. He continues to be junior to Mr. Muizudin Ahmed. (6) It will be seen from the Table in para. 3 ante that Mr. Muizuddin Ahmed and Mr. Muhammad Zubair Kidwai who were recommended for supersession by C.S.B-I in 1988; had A.C.Rs. quantification of 72 and 70, respectively. Being less than the prescribed threshold of

75. C.S.B-Is., recommendations for supersession of both officers were approved by the Prime Minister. Logically as well as per the dictates of the rules, both Mr. Muizuddin Ahmed and Mr. Muhammad Zubair Kidwai should have lost their seniority vis-a-vis their aforesaid colleagues in BS-20. However, an anomaly crept in due to an appeal of Mr. Muhammad Zubair Kidwai as outlined in para. 7 below. (7) As stated above, Mr. Muhammad Zubair Kidwai had an A.C.R. quantification 70 in 1988, and was thus, superseded. He, however, represented to the Prime Minister in 1991, against the supersession on the ground that his quantification had been worked out by harsh application of the computation formula which distorted his score. Tb: Establishment Division who were asked for comments, explained (Annexure IV) that the quantification of Mr. Muhammad Zubair Kidwai had been computed fairly and in accordance with the prescribed format. In fact the procedure has been applied in all earlier cases and continues to be applied in subsequent cases uniformly. It was further submitted to the Prime Minister's Secretariat that even if Mr. Muhammad Zubair Kidwai's plea is accepted, his score for the quality and Output would work out to be 74 which was still below the minimum threshold. Considering that the quantification had been worked out according to the prescribed norms and there was no harshness, the Establishment Division opposed any change in the C.S.B-I's. recommendations. However, the then Prime Minister converted (Annexure V) the supersession into deferment, and therefore, Mr. Kidwai got his seniority with effect from 1988. He is thus ranked as No.25 in the BS-21 seniority list as compared to that of Mr. Muizuddin Ahmed at No.40. (8) Mr. Muizuddin Ahmed is not contesting the decision of the C.S.B-I in superseding him in 1988. All that he is requesting for is that those officers who were junior to him in .BS-20 and were not promoted like him in 1988 particularly when their A.C.Rs. score was also less than the threshold, may not be declared senior to him. As detailed in paras. 4-5 above, the case of Messrs Dr. Muhammad Arid Ch. Mueen Afzal and Dr. Muhammad Amjad is that they were deferred in 1988 because of either being abroad or had recently returned from abroad and were required to earn one A.C.R. to become eligible for consideration: On being reconsidered in 1990, they were approved and thus regained their seniority. Mr. Shakeel Ahmed, as explained in para. 5 above, was superseded in 1990 and is thus junior to Mr. Muizuddin Ahmed. The only remaining officer who should be junior to Mr. Muizuddin Ahmed is Mr. Muhammad Zubair Kidwai because he was superseded on account of his A.C.Rs. score being less than the threshold. In fact, his score was even less than that of Mr. Muizuddin Ahmed. The acceptance of Mr. Muizuddin Ahmed's request would therefore, imply that once Mr. Muhammad Zubair Kidwai is declared junior to him, his grievance would be met. (9) No other officer with a score of less than 75 was approved for promotion to BS-21 in 1988. By deviating from the prescribed criteria in converting supersession into deferment in the case of Mr. Kidwai has also caused a grievance to many officers including Mr. Muizuddin Ahmed. All those who had a score of 70 and above but were not selected, would have ample grounds to seek similar dispensation. (10) To prevent distortion of the prescribed criteria and to meet the ends of justice in this case, it is recommended that the earlier decision of conversion of supersession of Mr. Muhammad Zubair Kidwai into deferment may be annulled This will meet Mr. Muizuddin Ahmed's grievance that no one with lesser score got promoted and declared senior to him. (11) Approval of the Prime Minister to the proposal contained in para. 10 is solicited." The case was submitted to Principal Secretary to the Prime Minister, who recorded the following note:-- (12) The Prime Minister has been pleased to approve the proposal at para. 10 of the summary." (Sd.) Ahmed Sadik, Principal Secretary to the Prime Minister 10-10-1994." Consequently, pursuant to the approval of the Prime Minister, the Office Memorandum, dated 8th November, 1994 was issued by the Establishment Division whereby the deferment of the appellant was annulled by the Prime Minister, and the representation made by Mr. Moizuddin Ahmed was accepted, with the result that the' appellant was relegated to his original position in the seniority position. The relevant paragraphs 4, 5 and 6 are I reproduced below:-- (4) As regard Mr. Muhammad Zubair Kidwai who was also superseded alongwith Mr. Muizuddin Ahmed by the C.S.D.B-1 in its meeting held on 27-2-1988 due to A.C.Rs. quantified score lesser than the prescribed minimum. threshold but approved by the Board in its meeting of 11-10-1990, regained his seniority due to acceptance of conversion of his supersession in 1988 into deferment. The matter was brought to the notice of the competent Authority highlighting the circumstances in which the 1988 supersession of Mr. Muhammad Zubair Kidwai was converted into deferment and resultantly he got seniority over his substantive senior that is, Mr. Muizuddin Ahmed. The competent Authority has now been pleased to annul the earlier decision of conversion of Mr. Muhammad Zubair Kidwai's 1988 supersession into deferment. Therefore, the seniority at S.'No.25 in the gradation list of BS-21 officers of the Secretariat Group as on 1-7-1994 assigned to him on the basis of his above-stated conversion, will now be placed at S. No.43-A and will thus maintain his inter se seniority with the batch of the officers superseded by the C.S.B-I on 27-2-1988 and subsequently promoted by the C.S.B-1 in its meeting held on 11-10-1990. (5) The position of seniority of Mr. Muizuddin Ahmed will remain at S. No.40 in the gradation list ibid as he was given seniority in the gradation list of BS-21 officers of the Secretariat Group on the basis of his supersession by the C.S.B-I meeting held on 27-2-1988 and promotion by the Board in its meeting held on 11-10-1990. His two juniors in BS-20, that is, Mr. Shakeel Ahmed and Mr. Muhammad Zubair Kidwai who were superseded continue to be junior to him in BS-21. (6) Mr. Muizuddin Ahmed's representation is thus accepted to the extent indicated above." From the abovementioned facts, it is clear that the Central Selection Board in its meeting held on 27-2-1988 had not cleared the appellant for promotion to B-21 as he had not achieved the requisite threshold of 75 and the Board recommended his supersession, alongwith other 52 officers, who had even higher score than the appellant and his supersession had been approved by the Prime Minister on 27-4-1988. In case the contention of the appellant with regard to wrong quantification is accepted, then the proper course was to place his case again before the Central Selection Board, alongwith full facts, for reconsideration of the case on the basis of quantified formula; or at least this course should have been suggested to the Prime Minister. There was no proper summary for the Prime Minister but the correspondence was being exchanged between the Prime Minister's Secretariat and the Establishment Division at the level of Deputy Secretary and Joint Secretary and finally the Additional Secretary (HA), Prime Minister's Secretariat vide his note dared 19-1-1993, reproduced above, directed that the Prime Minister had approved the conversion of supersession into deferment of the appellant. We are of the view that competent authority was not apprised of full facts about the threshold and quantification of the appellant, before passing order of conversion of supersession into deferment, because if the contentions were to be accepted, even then he could not achieve the requisite quantified score which was mandatory and could not be relaxed as there were host of officers who had achieved higher score but were superseded but the case of the appellant was singled out for considering his deferment, for which neither proper procedure was adopted nor full facts were placed before the Prime Minister. In the second round, it was on the representation of Mr. Moizuddin Ahmed that all facts and papers were submitted to the Prime Minister through a summary prepared by-the Establishment Secretary, and the deferment was converted into supersession, and this decision was conveyed by the Principal Secretary to the Prime Minister. Therefore, the contention of the appellant that once an order had been passed in his favour could not be recalled is devoid of merit. Had there been any merit in the case of the appellant then he was right that proper order passed by the competent Authority could not be recalled, but, as discussed above, the earlier order passed by the Prime Minister was without sound reasoning, and that order was recalled not suo motu but on the representation of an aggrieved person, namely Mr. Moizuddin Ahmed. The appellant has also referred to a decision of this Tribunal in Appeal No.47(K) of 1994 filed by Mr. Firozuddin Ahmed, in which the appellant was private respondent, and that appeal was dismissed and the position of the appellant was upheld, which cannot be now changed. We are sorry, we do not subscribe to this view. We have gone through the R&P of Appeal No.47(K) of 1994 and we find that Mr. Moizuddin Ahmed was not a party in that appeal, and therefore, the decision in the aforesaid appeal is not binding on him and that decision cannot affect the efficacy or judgment in the instant case. As regards the power of review, it is a settled law that power of review could only be exercised if it is specifically conferred and on this we rely on PLD 1970 SC 1 and PLD 1981 SC

94. In the instant case, the impugned notification was not the result of suo motu review but it was on the representation made by Mr. Moizuddin Ahmed which was examined in detail and impugned order was passed by the competent Authority which is just and does not call for interference.

7. As regards the contention of the learned counsel for the appellant that once the order had been passed by the Prime Minister and acted upon, that order could not be recalled by the Prime Minister under the principle of locus poenitentiae, there is force in this argument, but in the instant case, the Prime Minister on the recommendations of the Central Selection Board ordered supersession of the appellant and it remained in field till the appellant was again promoted. If we accept the argument of the appellant, then the competent Authority was not competent to have converted his supersession into deferment, as his supersession remained in field for three years, acted upon and continued till his promotion and he did not challenge it by way of regular appeal either departmentally or before the Tribunal. If we come to the conclusion on the basis of the arguments that the order of supersession converted into deferment is legal, then the first order whereby he was superseded and reached to finality, could also be said to be illegal and then the appellant has no case to challenge the order whereby his supersession was converted into deferment, but looking to the circumstances of the case and taking care of the interest of the civil servants, we have gone in detail. From the record, it appears that first supersession of the appellant was approved by the Prime Minister made on the recommendations of the Central Selection Board after due process of rules and in a regular manner. The situation changed. He did not challenge that order before the Tribunal and remained silent till he was promoted. After being promoted to B-21, the appellant took up his matter with the Prime Minister and correspondence exchanged between the joint Secretary, Prime Minister's Secretariat and the Establishment Division, and that Division throughout opposed the matter of conversion of supersession into deferment of the appellant on the basis of quantification which was less than the requisite threshold, and many of his seniors having higher score, were also superseded. However, afterwards on the representations made by the aggrieved civil servants, the matter was again probed and the Establishment Secretary floated a summary for the Prime Minister, giving full fads of the case, and the Prime Minister in his discretion, again converted deferment into supersession of the appellant and brought him to original position of supersession on the basis of the recommendations of the Central Selection Board. As regards the service appeal filed by Mr. Ferozuddin Ahmed (Appeal No.47(K) of 1994), wherein the appellant was a private respondent, although the said appeal was dismissed by the Tribunal and it was altogether a different matter of seniority which the appellant had regained on conversion of his supersession into deferment, but here the point for determination by the Tribunal is whether the conversion of supersession into deferment is legal or not, and the judgment of the Tribunal in the said appeal is not attracted in this case. He now wants seniority on the basis of conversion of supersession into deferment which was not a point in issue of earlier appeal, and in this appeal the appellant has impugned the order, dated 8-11-1994.

8. For the foregoing reasons, the appeal has no merits and is accordingly dismissed with costs. H.B.T./1093/Sr.F Appeal dismissed.