1991 PLP 1632 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted under Article 212(3) of the Constitution in these three appeals arising out of a consolidated judgment of the Federal Service Tribunal dated 14‑2‑1984 to examine whether the Tribunal had ignored the provisions of the General Principles of Seniority and the Office Memorandum of the Government/Establishment Division on the subject [Sl. No.44 (c) Volum II of the O & M Establishment Manual at page 315].

2. The recruitment to the posts of Instructors in the Federal College of Education, Islamabad in Grade‑17 took place through the Public Service Commission. The Commission selected the following in order of merit assigning them the seniority as hereunder:‑‑ (1) Mr. Abdul Ghani Qamar (2) Mr. Fateh Muhammad Nasim (3) Mrs. Naurin Saeed (4) Mr. Zia‑ul‑Haq Zia (5) Ch. Muhammad Altaf. Their date of actual joining the post is shown against their names as hereunder:‑‑ (1) Mr. Abdul Ghani Qamar 8‑4‑1978 (2) Mr. Fateh Muhammad Nasim 16‑10‑1978 (3) Mrs. Naurin Saeed 29‑3‑1978 (4) Mr. Zia‑ul‑Haq Zia 26‑3‑1978 (5) Ch. Muhammad Altaf 1‑4‑1978

3. In the seniority list that was issued by the Department their seniority inter se was fixed as was determined by the Public Service Commission at the time of their being selected for the appointment. Mr. Ziaul Haq (appellant in C.A. No. 96 of 1985) and respondent No.1 in C.A. No.98 of 1985) who was the first to joint and Ch. Muhammad Altaf (respondent No.1 in C.A. No.97 of 1985) who was the next felt that they deserved higher seniority, not on account of the merit assigned by the Commission but on account of their joining the post earlier in response to the letter of appointment. They made representations against the Provisional Seniority List that was circulated. The Department consulted the Establishment Division with regard to the dispute and communicated them the view of the Establishment Division that the seniority assigned by the Public Service Commission to them was to hold good. They represented again to the Department and then filed separate appeals before the Service Tribunal. The substance of the claim was based on three documents. The first is the letter of appointment which issued for each candidate so selected on 22nd of March. 1978 containing the following direction:‑‑ "He should report for duty immediately but not later than 15 days from the date of issue of this letter." The second is an order dated 27th of April, 1978 granting Mr. Fateh Muhammad Nasim an extension up to 5th May, 1978 for joining the post. The third is a similar letter dated 8th of September, 1978 permitting on compassionate grounds Mr. Fateh Muhammad Nasim to join immediately in the said College. The claim of the two appellants in service appeals before the Tribunal was that as they had failed to observe the time schedule initially fixed by the Department for joining the post and the reasons for not joining earlier were not beyond their control, their appointment stood cancelled and they lost in seniority assigned to them by the Public Service Commission.

4. The Tribunal, after examining the facts of the case, held in respect of Mr. Abdul Ghani Qamar as hereunder:‑‑ "It is an admitted position that respondent No.2 (Abdul Ghani Qamar) had been relieved of his previous appointment vide Government High School, Makhdoomali, Multan letter No.39/MA dated 5‑4‑1978. He reached Islamabad late on 6‑4‑1978 and 7th April being a Friday, he joined his new appointment on 8‑4‑1978. We are, therefore, satisfied that it was beyond his control to join at Islamabad on 5‑4‑1978 which he did. Such being the circumstances, we reject appellant's claim of seniority over respondent No.2." As regards Fateh Muhammad Nasim, the Tribunal held as hereunder:‑‑ "We have, therefore, no doubt in our mind that respondent No.3 has utterly failed to convince us of any compassionate ground which prevented him from joining in time. We cannot, also, lose sight of the fact that the offer of appointment to the respondent had been cancelled. He was subsequently appointed purely on humanitarian grounds as a result of his appeal to the CMLA. His appointment would, therefore, be treated as an appointment without the privilege on merit assigned by the FPSC which was valid up to a given time and NOT up to infinity. Those who have allowed respondent No.3 his FPSC merit position on 6‑1/2 months after his joining, without genuine reasons, have failed to appreciate that if the respondent had rights, which he had actually lost by not joining up to 5‑5‑1978, the appellant, too, had acquired rights which had accrued to him by joining well within time and that these rights were older and more established than those of the respondent (Fateh Muhammad Nasim)." Hence, the claim of Ch. Muhammad Altaf and Ziaul Haq was allowed against Fateh Muhammad Nasim but not against Abdul Ghani Qamar. Hence, these three appeals; two by the Government challenging the order of the Tribunal in both the cases and one by Ziaul Haq in so far as relief was not granted to him against Ch. Muhammad Altaf.

5. The basic defect in the reasoning of the Service Tribunal and the inconsistency therein is that it failed to note that the Public Service Commission while selecting them and assigning them the seniority had not fixed any time limit for their joining. If any one failed to join, another reference had to be made to the Public Service Commission to substitute him. No such reference was made by the Department. The Department, no doubt, gave the dates for joining the appointment but those dates were only directory and did not entail by itself the cancellation of either the selection or the seniority. If the basis of the ^' appointment whenever it took place was the selection made by the Public Service Commission, then the seniority assigned by the Public Service Commission could not be avoided. The Department or the Government had no right except by overruling the Public Service Commission and reporting to it so to deviate from the recommendations of the Public Service Commission, both with regard to selection and the merit of the selectee. There could be no exercise of pick and choose from the recommendations of the Public Service Commission. On this principle, the order appealed against suffers from an inherent inconsistency and is devoid of any legal basis.

6. In treating the seniority as a vested right, the Tribunal has omitted to note the positive provisions of section 8 of the Civil Servants Act which deny any vested right in seniority. Nevertheless, the seniority has to be determined by the Rules and the Rules on the subject clearly show that it is for the Department to permit/extend, whether on compassionate grounds or on a ground beyond the control of the individual or otherwise in the exegencies of the service, the joining time of the civil servant. What is more, the letter of appointment which was handed down to each of the candidates contained also the following two terms/conditions:‑‑ "(xi) In case he is a. permanent employee of the Federal Government or `` Provincial Government he will be entitled to joining time and T.A./D.A. as admissible under the rules for joining the post offered to him by this Ministry. (xii) His seniority vis‑a‑vis other selectees would be determined by the order of merit assigned by the Commission." It is not disputed that the respondents in contest were also Government servants holding permanent appointments and they continued to serve during the intervening period their respective departments. Apart from these, the General Principles of Seniority and the established departmental practice as evidenced by the instructions in O & M Manual fully bear out the fact that the seniority assigned by the Public Service Commission is. unalterable at the hands of the Department unless the very recommendation itself is not honoured.

7. The learned Deputy Attorney‑General has taken a number of technical objections. It is contended that the seniority list was provisional and the objections to it had been invited and had yet to be considered and disposed of and another list was to be substituted before the matter could be brought before the Service Tribunal. It is also contended that the time prescribed by law was not observed in bringing the dispute to the Service Tribunal and the representations filed by then were not in accord with the law on the subject. We do not, however, propose to deal with these technical objections because none of them has been taken note of or dealt with by the Tribunal.

8. The two appeals filed by the Government i.e. Civil Appeals Nos.97 of 1985 and 98 of 1985 are accepted and that of the civil servant Ziaul Haq (Civil Appeal No.96 of 1985) is dismissed. The judgment of the Service Tribunal is set aside and the two appeals filed and disposed of by the impugned judgment are dismissed. No order is made as to costs. A.A./Z‑129/S Order accordingly.