1993 PLP (C (PLC(CS))

5. It was submitted that the recruitment of Section Officers on the basis of above formula continued till 1980 when direct recruitment was discontinued on the recommendations of Civil Service Commission. However, in 1981 it was decided by the Government to fill 100 vacancies of Section Officers through promotional examination and during the years 1981, 1982, 1984, 1985 and 1987, every year 100 Section Officers were recruited. Meanwhile in November, 1985, the O.M. constituting the Office Management Group was amended according to which the provision of appointment of Section Officers on acting charge basis was made. This amendment was given retrospective effect and so all Section Officers recruited during the years 1981, 1982 and 1984 were also placed on acting charge basis. It was strongly contended by the appellant in person that the O.M., dated 4‑11‑1985 amending the Establishment Division's O.M., dated 27‑1‑1975 constituting the Office Management Group was not lawful as it did not have the approval of the competent authority i.e. Prime Minister/President of Pakistan. In the meanwhile, however, the regularisation of Section Officers appointed on acting charge basis also continued and about 230 Section Officers out of 500 appointed over the years were regularised. This situation, however, changed because in the year 1979, it was decided to recruit Section Officers directly through Civil Service Commission examination and as a result 60 Section Officers joined Secretariat Training Institute on 18‑11‑1989. Since 500 Section Officers had been recruited by the Establishment Division during the years 1981, 1982, 1984, 1985 and 1987 through the promotional examination conducted by the Federal Public Service Commission, 1/3rd of the reported vacancies i.e. 100 vacancies every year should have been regularised strictly according to the merit i.e. those who were placed from serial Nos. 1 to 33 on the merit list drawn by the Federal Public Service Commission. According to the constitution of Office Management Group, dated 27‑1‑1975, the first 33 Section Officers of 1987 batch who were appointed on acting charge basis ought to have been regularised with effect from 1‑3‑1988 when they joined the Secretariat Training Institute. Therefore, by not placing these i.e. the first 33 Officers of 1987 batch on regular footing, it has caused great disadvantage to them. They having been appointed on acting charge basis have become junior to the direct appointees through Civil Service Commission Examination who have joined the Secretariat Training Institute on 18th November, 1989.

6. It was contended that at the time of Section Officers' promotional Examination held in 1967, 107 vacancies of Section Officers were available. According to the ratio for the promotees i.e. 20% prevalent at that time, 21 vacancies were filled in by the successful candidates on regular basis and the remaining on purely temporary basis. Similar condition prevailed in the year 1969 when 96 vacancies were available out of which 24 successful candidates at the ratio of 25% were appointed as Section Officers on regular basis. It was submitted that it was apparent that 24 promotional quota vacancies of 1969 examination were not given to the appointees of 1967 batch though they were already appointed on ad hoc basis before holding the 1969 examination. In fact, the remaining Section Officers of 1967 batch i.e. 86 in number, and 72 ad hoc Section Officers of 1969 batch were placed on regular footing in the year 1975. This happened as a result of the judgment in Appeal No. 120(R) of 1982 to reallocate 24 vacancies to the appointees of 1969 batch. This decision of this Honourable Tribunal was upheld by the Honourable Supreme Court of Pakistan. It was, therefore, submitted that while regularising the Section officers appointed as a result of the examinations held during 1981, 1982, 1984, 1985 and 1987 the principle laid down in the judgment in Appeal No. 120(R) of 1982 ought to have been followed to fill the regular vacancies. It was, therefore, prayed that the regularisation of the appellant alongwith 33 officers (who secured the first 33 positions as a result of the promotional examination held in 1987) may be ordered from the day they joined the Secretariat Training Institute i.e. the 1st of March, 1988, and they also be declared senior to those regularised earlier out of the 500 Section Officers appointed on acting charge basis.

7. The learned counsel for the State alongwrith the departmental representative raised the preliminary objection that the present appeal filed on 17‑6‑1990 is heavily time‑barred and liable to be rejected on the basis of non?-joinder of necessary parties. It was submitted that the fact of the matter is that the appellant was appointed as Section Officer on acting charge basis with effect from 1‑3‑1988 as a result of the Section Officers' promotional examination held by the Federal Public Service Commission in the year 1987 in which he secured 18th position in the merit list. The appellant preferred no appeal against his appointment on acting charge basis. His first representation was received by the Establishment Division on 2‑11‑1989. This departmental representation was clearly beyond the stipulated period of 30 days and, therefore, the appeal is liable to be rejected as time‑barred. The appellant, however, submitted another appeal dated 3‑2‑1990 to the Prime Minister of Pakistan and later preferred an appeal before this Tribunal on the basis of not having received any reply within 90 days. This appeal was dismissed in limine by this Honourable Tribunal as there was no final order, vide judgment dated 24‑5‑1990. The appellant then submitted his third departmental representation on the basis of this judgment of the Tribunal. He was given a reply vide Establishment Division's letter dated 14‑6‑1990 which is reproduced below: Subject: REGULARISATION OF ACTING CHARGE SECTION ?OFFICERS Reference Cabinet Division's U.O. No. PF (1851) / Admn.II, dated 28‑5‑1990 on the above subject.

2. Para. 7 of O.M. No. 1/2/7.5‑ARC, dated 27‑1‑1975 constituting Office Management Group deals with future recruitment and provides as follows: (a) 2/3rd of the vacancies of Section Officers in BPS‑17 may be filled by direct recruitment through Federal Public Service Commission. (b) 1/3rd of the vacancies shall be filled by promotion of departmental eligible candidates through a promotional examination.

3. Para. 5 of the said O.M. also provides that .10% of Duty posts i.e. 75 out of 750 of Section Officers will be reserved for appointment on deputation on tenure basis or by transfer of officers in BPS‑17 and 18 from other Occupational Groups/Cadres and Provincial Civil Servants.

4. Due to discontinuance of direct recruitment in Office Management Group, Shortage of Section Officers was faced. In order to meet the shortage, appointments of Section Officers were made on acting charge basis through promotional examinations in excess of promotion quota. Mr. Riaz Hussain will be considered for regular appointment on his turn on availability of vacancies in promotion quota."

8. It was submitted by the learned counsel for the State that the contents of the above quoted letter, which are based on para. 7 of O.M. dated 27‑1‑1975 constituting Office Management Group are self‑explanatory. The appellant has been given the assurance that his name would be considered on his turn for regular appointment on availability of vacancies in the promotional quota. There was no cause of grievance, which could accrue to the appellant to agitate the matter for his regularisation as Section Officer and also no one junior to him was ever made regular till then.

9. As regards the non‑joinder of necessary parties, it was submitted that it was evident that the appellant had not impleaded any of the direct recruitees who were inducted through Civil Service Commission's Examination held in 1988. It was contended that only 41 Officers reported for training and not 60 Officers as stated by the appellant in his appeal. The mere fact that the appellant is still on acting charge basis, the question of fixation of his seniority in the Office Management Group does not arise. It is only after he is given a regular appointment in the Office Management Group that he could agitate this matter. There is no assurance on the part of the Government in his appointment letter, dated 12‑5‑1988 that those being appointed on acting charge basis would be regularised after a specified period. Therefore, the fixation of his seniority in Office Management Group is out of question at the moment. He, therefore, had no cause for making first representation on 2‑11‑1989 or for that matter his two other departmental representations, dated 3‑2‑1990 and 28‑5‑1990. Under section 22 of the Civil Servants Act, 1973 only one representation is allowed and his repeated representations are, therefore, incompetent. It is, therefore, strongly contended that the present appeal was liable to be dismissed as incompetent on the grounds of being time-?barred, non‑joinder of necessary parties and also hit by section 22 of the Civil Servants Act, 1973.

10. It was further contended by the learned counsel for the State that pending reorganisation of the Office Management Group, the recruitment of Section Officers through Civil Service Commission's Examination was stopped with the approval of the President of Islamic Republic of Pakistan as a stop?gap measure vide U.O. Note, dated 2‑1‑1986. The Government, therefore, resorted to recruitment of Section Officers through promotional examination to be conducted by the F.P.S.C. Accordingly such promotional examinations by F.P.S.C. were conducted in the years 1981, 1982, 1984 and 1985. The appellant did not possess minimum service of 8 years in B‑11 at the time of these promotional examinations having been appointed as Assistant with effect from 2‑6‑1977. It was, therefore, irrelevant for the appellant to claim regular appointment against posts which have been filled in prior to his appointment on acting charge basis. The appellant appeared in the promotional examination 1987, and he was offered the post of Section Officer on acting charge basis vide letter, dated 12‑5‑1988 without guarantee for regular appointment. The appellant accepted the offer and did not agitate the matter at the appropriate time and so cannot seek redress as a consequence of his lapse against those Section Officers who have been regularised against the available vacancies. Furthermore, O.M., dated 4‑11‑1985 was issued prior to acting charge appointment of the appellant in the year 1988. Para. 1(i)(a) of the said O.M. provides that vacancies of Section Officers in Pay Scale 17 reserved for initial appointment could be filled on acting charge basis if the appointing authority was satisfied that the initial appointment would take sufficient time. All Section Officers serving on acting charge basis could be appointed on regular basis to the post, held by them, depending on their merit position in the promotional examination, service record and availability of vacancies in the promotion quota on the recommendation of the DPC. It was also provided that Section Officers appointed according to para. 12(d) of the abovementioned memorandum would be assigned seniority according to merit position obtained by them in the promotional examination and those appointed on the basis of earlier promotional examination as batch would rank senior to one appointed on the basis of subsequent promotional examination. Therefore, those appointed on acting charge basis against direct quota cannot claim the seniority over the Section Officers already appointed on regular basis as a result of the promotional examinations held in years 1981, 1982, 1984 and 1985.

11. It was further contended that the judgment of the Federal Service Tribunal in Appeal No. 120(R) of 1982 is not relevant in this case. That was a clear case of seniority of a regular appointee of 1969 Examination. In the present case no one who qualified the promotional examinations held in 1981, 1982, 1984, 1985 and 1987 was appointed on ad hoc basis. Therefore, the appellant has no cause to claim seniority over those Section Officers who have already been appointed on regular basis and assigned seniority accordingly in their batches. It was, therefore, strongly contended that the present appeal was liable to be rejected as incompetent and, therefore, be dismissed accordingly.

12. We have heard the arguments from both the sides and perused the record presented to us carefully. In our view it is established beyond any doubt that direct recruitment of Section Officers was stopped vide U.O. Note, dated 2‑1‑1986 with the express sanction of the President of Islamic Republic of Pakistan as a stop‑gap measure due to the reorganisation of the Office Management Group, however, to meet the recruitment, the temporary recruitment of Section Officers was resorted to by holding promotion examinations through F.P.S.C. amongst the direct quota of Section Officers. During this period i.e. from 1981 to 1987 Establishment Division at no stage informed F.P.S.C. regarding the availability of one hundred vacancies of Section Officers every year as claimed by the appellant. Also, it is established that the appellant for the first time appeared in 1987 when he became eligible to appear in the promotional examination after having completed his 8 years' service as Assistant. Therefore, all those Section Officers who were appointed as a result of the promotional examination held during the years 1981, 1982, 1984 and 1985 were undoubtedly senior to the appellant. He is not in any way entitled to claim seniority being ineligible even to appear in the promotional examinations held earlier. We have the firm view that the cause of action accrued to the appellant only when he was appointed as Section Officer on acting charge basis vide letter, dated 12‑5‑1988. The appellant should have agitated the matter within the stipulated period of 30 days. His first departmental representation, dated 12‑11‑1989 is, therefore, clearly time?-barred. His other two representations, dated 3‑2‑1990 and 28‑5‑1990 are not maintainable under the law as only one representation is permitted under section 22 of the Civil Servants Act, 1973.

13. We also feel strongly that the appellant had failed to implead the necessary parties as respondents. He has impliedly claimed seniority over 41 Section Officers who were recruited against direct quota through the Civil Service Commission's Examination held in the year 1989. None of them is impleaded as respondent and so non‑joinder of necessary parties renders the present appeal liable to be dismissed.

14. As a result, the present appeal, in our view, is hopelessly time‑barred and not maintainable under the law due to non‑joinder of necessary parties. This is our considered opinion that the appellant is not entitled to claim seniority over his seniors who were appointed and later confirmed as Section officers through promotional examinations during the years 1981, 1982, 1984 and 1985 when he never was qualified even to appear in promotional examination held during those years. The reliance placed by the appellant on the judgment of the Federal Service Tribunal in Appeal No. 120(R) of 1982 is also misplaced because the facts and law involved in that appeal are not applicable in his case: The Section Officers appointed during the year 1969 were on ad hoc basis and their seniority was disputed with those Section officers who were appointed against the direct quota of the year 1969 through Civil Service Commission Examination.

15. The upshot of the above discussion is that the present appeal before us fails and is, therefore, dismissed accordingly on the grounds indicated above.

16. No order as to costs.

17. Parties be informed. A.A./665/Sr.F? Appeal dismissed.