1999 PLP (C (PLC(CS))

MUNAWAR AHMED MIRZA, J.‑‑‑Civil Appeals Nos.57 and 58 of 1998, by leave of the Court, are directed against judgment, dated 4‑8‑1997 passed by Federal Service Tribunal, Islamabad, in Appeal No. 13‑L of 1997. Since both the above matters involve determination of identical points of law and facts, as such they are being disposed of through this common judgment.

2. Brief facts leading to filing of present appeals are that, respondent No. ,l who is M.Sc. in Tourist was appointed as Assistant Chief (B‑18) in the Ministry of Culture and Tourism, Government of Pakistan, Islamabad, following his selection by the Federal Public Service Commission vide Notification No.3(2) of 1982‑A&E, dated 24‑1‑1982. Whereas appellant S.M. Farooq joined his service towards 19‑1‑1970 and was promoted in Grade‑18 with effect from 3‑3‑1988.

3. Record reveals that respondent Yar Muhammad Khan was rendered surplus as a result of recommendation made by Economy Commission and relieved of his duties from Sports and Culture Division. However, subsequently after approval from competent Authority was absorbed as Deputy Controller B‑18 in the Department of Tourist Services, Lahore, vide Office Memorandum No. 13/112/93‑D.2(RW‑III), dated 20th July, 1995, which reads:‑‑ "CABINET SECRETARIAT ESTABLISHMENT DIVISION N0.13/112/93‑D.2(RW‑III). Islamabad, the 20th July,1995 Subject:‑ ABSORPTION OF SURPLUS STAFF. The undersigned is directed to refer to Sports and Tourism Division's O.M. No.2(5)/95‑Reg./DTS, dated 6th June, 1995 on the subject. (2) The competent authority has approved absorption of Mr. Muhammad Yar Khan, surplus Assistant Chief, BS‑18 against the post of Deputy Controller (BS‑18) in the Department of Tourist Services under rule 3(3) of the Civil Servants A.P.T. Rules, 1973. (Sd.) Abdul Majid; Section Officer (RW‑III)."

4. In pursuance of above directive notification was issued by Controller Department of Tourist Services on 8th Aupst,11995, whereafter he (respondent No. l) assumed charge as Deputy Controller (BS‑18) which reads:‑‑ "Government of Pakistan Department of Tourist Services Ministry of Sports and Culture. Block D‑6, Markaz F‑7, Islamabad, the 8th August, 1995. No.DTS‑4(176)/95/. Consequent upon his absorption in the Department of Tourist Services, Mr. Muhammad Yar Khan, a surplus Assistant Chief (BPS‑18), Sports and Tourism Division in hereby absorbed as Deputy Controller (BPS‑18) in the Department of Tourist Services, Lahore with immediate effect and until further order. Sd/‑Attaullah Khan Afridi. Controller"

5. Provisional Seniority List of Grade‑18 Officers 4vas prepared by Department of Tourist Services and circulated to concerned officers vide letter, dated 23rd January, 1996 wherein appellant S.M. Farooq was placed at Serial No.2, whereas respondent No. l at Serial No.4. For convenience details are given below:‑‑ S.No. Names & Designation Date of birth Qualification Date of into Govt. Service. Date of appointment in present scale Date of appointment in present scale in DTS Remarks 1 Mr. M.A. Bangash, Law Officer. 16‑5‑1994 B.A.LLB 05‑6‑1982 5-6-1982 5‑6‑1982 FPSC's Nominee 2 Mr. S.M. Farooq, Dy. Controller 13‑3‑1945 M.Sc. (Scats) 19‑1‑1970 3‑3‑1988 3‑3‑1988 Promotee 3 Mr. Muhammad Mithal Lakho, Dy. Controller 01‑1‑1956 M.Sc. (Scats) 16‑11‑1980 1‑6-1991 2‑1‑1993 FPSC's Nominee 4 Mr. Muhammad Yar Khan, Dy. Controller 12‑4‑1953 M.B.A. M.Sc. (Tourism Planning & Development) 6‑1‑1982 6‑1‑1982 8‑8‑1995 Absorbed (St.) (ZAHIR AHMED SIDDIQUI), Controller. "

6. Respondent No. l had filed a departmental appeal on 4‑2‑1996 to Additional Secretary Incharge Sports and Tourism Division, Government of Pakistan praying for counting his seniority from 6‑1‑1982 to 7‑8‑1995 towards his seniority in the Department of Tourist Services. Eventually the representation was rejected by competent Authority vide No.2(6) of 1995 Reg./DTS, dated 18‑12‑1996. Thereafter, he instituted Service Appeal No.13(L)/97 before Federal Service Tribunal on 12‑1‑1997. Appellant and respondents Nos.4 and 5 contested the appeal and apart from opposing the same on merits also objected to its maintainability on the ground of limitation. The Federal Service Tribunal by means of Judgment, dated 4‑8‑1997 accepted the appeal. Operative portion is as under:‑‑ "(7) The second limb of the argument also appears to be devoid of logic. The mere fact that the Establishment Division had not specifically instructed the Ministries/Divisions to ensure that only the junior -most officers were declared surplus cannot be taken to absolve the respondent‑department of its responsibility to ensure that the exercise was carried out judiciously, by application of independent mind, and keeping in view the principles of equity, justice, fair play and good conscience. If the respondents had not decided the issue of surpluses, on the basis of seniority, what other principle had they followed which led them to declare the appellant surplus while retaining his earst‑while juniors? The appellant appears to be a fairly highly qualified person who was selected by the Federal Public Service Commission on, the basis of merit. There is no complaint available on the record as to his performance and conduct, during his tenure as Assistant Chief. At least none has, been brought to our notice. We are, therefore, inclined to hold that the department does not seem to have followed any objective criteria while declaring the appellant surplus. It was in all probability, a mere pick and choose exercise. The universally acknowledge principle of last come first go also appears to have been lost sight of. In our view the absorption of the appellant did not amount to a fresh appointment and he seems to have continued his service without any break, in the same grade and scale of pay. There was, thus, no interruption in service and he should be deemed to have carried his seniority with him from the date of his first appointment into Government Service as Assistant Chief i.e. 6‑1‑1982. Logically, therefore, he should rank senior to respondents Nos.3, 4 and

5. Reliance for this is placed on 1990 PLC (C.S.) 25. (8) For what has been stated above, we accept this appeal set aside the impugned seniority list and direct the department to prepare a fresh seniority list in the light of the observations made in this judgment."

7. Above decision has now been challenged through Civil Petitions for Leave to Appeals Nos. 1133 1997 (S.M. Farooq v. Muhammad Yar Khan and others) and 1228 of 1997 (Federation of Pakistan v. Muhammad Yar Khan and others), wherein leave was granted on 7th January, 1998, to inter alia examine following aspects and accordingly petitions have been converted into Civil Appeals Nos. 57 and 58 of 1998 respectively:‑‑ "(3) In the circumstances, leave to appeal is granted to examine, inter alia.:‑‑ (1) Whether respondent No.l is entitled to claim seniority in the Department of Tourist Services? (2) Whether the Service Tribunal was right in setting aside the seniority list with the direction to grant seniority to respondent No. i on the basis of seniority earned in the Establishment Division? in both the petitions."

8. We have heard the arguments advanced by learned counsel for parties at considerable length. It is an admitted feature of the case that respondent No. l who earlier had been declared surplus was absorbed in the Department of Tourist Services on 8th of August, 1996. Appellant S.M. Farooq and other two respondents were already performing duties as Grade‑18 officers in said department. The question would, therefore, arise whether respondent Muhammad Yar Khan would carry his previous service for regulating seniority and disturbs status of those who prior to his absorption were serving them in the same rank. 9. 1t may be seen that Civil Servants Appointment, Promotion and Transfer Rules; 1973 were amended by means of Notification S.R.0.57(1)/73, dated 25th January, 1993 to regulate procedure concerning absorption of Civil Servant who has been rendered surplus. Sub‑rule (3) of rule 3 of above mites was thus added and it reads:‑‑ "(3) Notwithstanding anything contained in sub‑rule (1) or the method of appointment laid down in the recruitment rules, a person who is rendered surplus as a result of the reorganization of abolition of a Division, department office or permanent post in pursuance of any Government decision or as a measure of economy may be appointed to a post m the basic pay scale to which he belonged, if he possesses the qualifications, and fulfils other conditions, applicable to that post. "

10. However, through Office Memorandum No.13/3/9‑D‑2, dated 10th July, 1993 issued by Cabinet Secretariat, Establishment Division, Government of Pakistan 'Surplus Pool" of employees rendered surplus was created by devising a procedure for their permanent absorption. Thereafter vide Office Memorandum No.13/3/93‑D‑2(Pt), dated 12th September, 1994 instructions for regulating seniority of surplus staff was issued by Cabinet Secretariat, Establishment Division. Same is reproduced below:‑‑ "Government of Pakistan Cabinet Secretariat Establishment Division. No.13/3/93‑D‑2(Pt), Islamabad, the 12th September, 1994 The undersigned is directed to say that references are being received as to how seniority of the surplus staff absorbed/appointed under Rule 3(3) of Civil Servants (Appointment, Transfer and Promotion) Rules, 1973, in new Offices/Departments should be determined. It is clarified that on promulgation of Civil Servants (Seniority) Rules, 1993 vide SKO. 163(1) of 1993, dated 28‑2‑1993, all existing rules, orders and instructions relating to seniority (except those mentioned in Rule 7 ibid) were repealed. The seniority of the surplus staff reappointed to the posts in other Offices/departments or cadres should be determined in terms of Rule 4 (read with Rule 6 where applicable) of Civil Servants (Seniority) Rules, 1993. Rule 4 clarifies that 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. The seniority of surplus staff in new cadres or services, vis‑a‑vis those who are already holding posts in those cadres/services on a regular basis, should be determined under this principle i.e. with reference to the date of regular appointment by transfer in news post/cadre or service. As regards the inter‑se‑seniority of the surplus staff absorbed in one and the same cadre, service or post, the same to be determined in terms of provisos (a) and (b) of Rule 4. (Sd.) Shama Khalid, Deputy Secretary."

11. Before dealing with respective grievances on merits it would be appropriate to mention here that Ministry of Culture and Tourism (Tourism Division) vide Notification S.R.0.652(1)/87, dated 30th July, 1987 had amended the method, qualification and conditions for appointment and promotion etc, in the Department of 'Tourist Services. Portion of said notification relevant for this matter is reproduced here:‑‑ "S.R.O.652(1) of 1987.‑‑‑In pursuance of sub‑rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the following method, qualifications and other conditions are laid down for appointment to the undermentioned posts in the Department of Tourist Services under the Ministry of Culture and Tourism (Tourism Division):‑‑ 1 Controller (BPS‑19) 2 Deputy Controller (BPS‑18) 3 Law Officer (BPS‑18)

4. Assistant Controller (BPS‑17)

5. Inspector (BPS‑16)

6. Legal Assistant (BPS‑16)

2. Appointment to the post shall be made by the following method. S.No. Name of the post with Basic Pay Scale By promotion By initial appointment 1 Controller (BPS‑19) 100% ‑ 2 Deputy Controller (BPS‑18) 50 % 50% 3 Law Officer (BPS‑18) 100 % - 4 Assistant Controller (BPS‑17) 40% 60% 5 Inspector (BPS‑16) - - 6 Legal Assistant (BPS‑16) 50% 50% Provided that if no suitable person is available for promotion then the posts reserved for promotion shall be filled by initial appointment and that by transfer. (3) Promotion to posts in column 1 below shall be made by selection amongst the persons who hold the posts specified in column 2 on a regular basis, and possess the qualifications and experience prescribed in column

3. Sr. No. Name of post. Persons eligible. Condition of eligibility 1 Controller (BPS‑19) (i)Deputy Controller (BPS‑18) (ii) Law Officer(BPS‑18) 12 years service in the relevant field in (BPS-17) and above or 7 years service in the relevant in (BPS-18) in case direct recruits in (BPS-18). Provided that 5 years service must be in the Department of Tourist Services. 2 Deputy Controller. (BPS‑18) Assistant Controller (BPS‑17) 5 years service in the relevant field as Assistant Controller in the Department of Tourist Services. 3 Law Officer. (BPS‑18) Legal Assistant (BPS‑16) 10 years service in the relevant field as Legal Assistant in (BPS-16) and must possess Law Degree. 4 Assistant Controller (BPS‑17) Inspector(BPS‑16) 3 years service in the relevant field as Inspector (BPS-16) in the Department of Tourist Service. 5 Legal Assistant Assistant. (BPS‑16) 5 years service in the relevant field in (BPS-11) and above in the Department of Tourist Services. Must possess Law Degree.

12. In the background of legal and factual aspects and adverting to real controversy it may be seen that Notification, dated 8th August, 1995 unambiguously discloses status of respondent Yar Muhammad Khan being surplus and his consequential absorption as Deputy Controller (BPS‑18) in the Department of Tourist Services. Obviously in pursuance of above notification said respondent had assumed duty without any protest. Therefore, his seniority was properly fixed keeping in view provisions of rule 3(3) of Civil Servants (Appointment, Promotion and Transfer) Rules, 19 7 3 as amended and instruction issued by the Establishment Division regarding absorption of surplus employees. Besides Rule 4 of Civil Servants Seniority Rules, 1993 promulgated by Notification S.R.O. (1)/93, dated 28th February. 1993 lays down that seniority in service, cadre or post by transfer shall take effect from the date of regular appointment of civil servant to said service, cadre, or post. Therefore. necessary corollary would be that such civil servant on his appointment by transfer would rank junior to those who were already serving in permanent capacity in the same grade. This is in consonance with principle of justice and fair play because service rights of employee; in the absence of any rules cannot be normally affected by outside introduction. The respondent No. l Muhammad Yar Khan till date of his absorption continued to be member of his parent service or cadre. Therefore, unless transferred and absorbed on account of conscription; the seniority of above respondent in Tourist Services Department had to be reckoned from the date of his regular appointment against permanent post. It may be mentioned here that respondent No.1 had option to refuse and in such eventuality, he would be entitled to seniority reckoned in the parent department.

13. During the course of arguments Hafiz Tariq Nasim, learned counsel for respondent when confronted with about situation factually conceded to the seniority of appellant S.M. Farooq but emphatically canvassed that respondent M.A. Bangash being Law Officer occupies distinct post therefore, can be deemed senior to him. Suffice it to observe that relevant departmental rules expressly recognizes similarity of cadre and common channel of promotion to higher grade therefore, objection in that behalf has no substance.

14. Thus on the careful analysis of all aspects we feel inclined to hold that learned Federal Service Tribunal in allowing the appeal filed by respondent has completely misconstrued the legal position and overlooked the relevant service rules therefore, conclusions drawn in the impugned judgment suffer from material defects. Additionally, the Tribunal while deciding the appeal has based findings on presumptive suppositions and perceptions extraneous to record, which is not permissible. Therefore, impugned judgment deserves to be struck down.

15. For the foregoing reasons both these appeals are accepted. As a result judgment, dated 4‑8‑1997 passed by Federal Service Tribunal in Appeal No.13‑L of 1997 is set aside, therefore, service appeal filed by respondent No. 1 Yar Muhammad Khan stands dismissed. He shall, however, be entitled to exercise option within reasonable time for his return/restoration to parent Department and avail the benefit of previous service rights as admissible under the rules.

16. The appeals are disposed of in the above terms. Parties are, however, left to bear their own costs. H. B. T./S‑117/S Appeal accepted.