2018 PLP 332 (SCMR)

EJAZ AFZAL KHAN, J.

These petitions for leave to appeal have arisen out of the judgment dated 20.10.2016 of the Federal Service Tribunal, Islamabad whereby appeals filed by respondents Nos. 3 to 11 were allowed.

2. Learned Senior ASC appearing on behalf of the petitioners in C.Ps. Nos. 3577 to 3583 of 2016 contended that respondents Nos. 3 to 11 cannot rank senior to the petitioners whether they were appointed in the Ministry of Religious Affairs by transfer or on deputation and that their seniority would continue to be regulated by Rule 4 of the Civil Servants (Seniority) Rules, 1993.

3. Learned Standing Council appearing on behalf of Federation in C.Ps. Nos. 3889 to 3895 of 2016 also reiterated the arguments addressed by the learned Sr. ASC for the petitioners in Civil Petitions Nos. 3577 to 3583 of 2016.

4. Two of the respondents appearing in person defended the impugned judgment by contending that their case is fully covered by SL. No. 33(6) of the Esta Code Vol. I; that their transfer to the Ministry of Religious Affairs could not be considered as appointment by transfer or appointment on deputation and that the impugned judgment being free from any legal infirmity is not open to any interference.

5. We have gone through the record carefully and considered the submissions of the learned Sr. ASC for the petitioners, the learned Standing Council for the Federation as well as the respondents appearing in person.

6. Before we discuss the rules cited above, let us see whether case of the respondents is covered by Rule 4, Rule 4-A of the Civil Servants (Seniority) Rules, 1993, or Sl. No. 33(6) of Estacode, Vol-I, Edition 2007, a reference to the said rules would thus be necessary which read as under:- "

4. Seniority on appointment by transfer.- Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post: Provided that - (a) persons belonging to the same service, cadre or post selected for appointment by transfer to a service cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and (b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior." 4A. In the event of merger of Ministries, Divisions, Attached Departments or Subordinate Offices, the inter se seniority of civil servants, other than those belonging to regularly constituted Occupational Groups and Services, shall be determined in accordance with the date of regular appointment to a cadre or post". "SI. 33(6). Seniority on transfer from one office to another.- (i) The instructions in the foregoing paragraphs regulate the position of a deputationist in his parent office. As regards his seniority in the office to which he is transferred, it should be determined in the following manner:- a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office; b) When a person is compulsorily transferred to another office as a result of conscription, or along with the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office. It may be pointed out that separate seniority lists should be prepared in respect of (i) persons appointed on a permanent or a quasi permanent basis; and (ii) persons appointed on a purely temporary basis, and the person obtained by transfer from another office should be assigned his appropriate place, in accordance with the above instructions, in the list of the persons to which category he belongs." A look at the rules reproduced above would reveal that one deals with determination of seniority on appointment by transfer and the other deals with the determination of seniority on merger. A bare reading of the Rule 4 reveals that the case of the respondents is not of appointment by transfer or appointment on deputation. It is not even a case of absorption by any attribute. The case of the respondents precisely is that many Ministries were abolished and reorganized in the wake of the Constitution (18th) Amendment) Act, 2010 and that they being the employees of the Ministry abolished were transferred to the Ministry reorganized. Transfer of the respondents to the Ministry reorganized cannot be seen through the prism of Rule 4 of the Rules mentioned above. Their case is fully covered by serial No. 33(6) of Estacode, Vol-I, Edition 2007. In this context, their case would be more akin to Rule 4A rather than Rule 4 of the Rules. No canons of interpretation would scratch or strike off their past service when they on abolition of the Ministry, were compulsorily transferred to the Ministry of Religious Affairs and Interfaith Harmony. Their past service has to be respected and recognized for determining their seniority, It would, thus, be unfair and unjust to treat the respondents junior to the junior most civil servants in the Ministry for none of their faults. The view taken by the Service Tribunal is, therefore, not amenable to any change or modification.

7. For the reasons discussed above, these petitions being without merit are dismissed and the leave asked for is refused. MWA/T-8/SC Petitions dismissed.