1998 PLP 1166 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This is a petition for special leave to appeal from the judgment of the Federal Service Tribunal dated 25-7-1995 dismissing the appeal of the petitioner wherein he had claimed seniority in the Population Planning Division in the Federal Government.

2. The petitioner started his career as an employee of the Punjab Family Planning Board. On 30-12-1976 the Government of Pakistan decided to federalise the Population Planning Programme under the direct administration of the Federal Government and governmentalised the services of the Population Planning Personnel. The petitioner, like many others, in the Programme was offered appointment in BPS-17 which he had accepted. Consequently, the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (No.XIV of 1981) was promulgated on 11-5-1981 by the Government of Pakistan, whereunder the appointment in BPS-17 was to be regularised only on the recommendations of the Federal Public Service Commission (FPSC) and further that the appointees shall be deemed to be civil servants within the meaning of the Civil Servants Act, 1973. Petitioner, like some other officers, however, could not appear before the F.P.S.C. and; in consequence, his services were terminated under Section 6 of Ordinance No.XIV of 1981. The employees whose services had been terminated first approached the Federal Service Tribunal and then this Court in appeal. All the appeals filed before this Court were disposed of by a consolidated judgment reported as Federation of Pakistan v. Riaz Ahmad Baig (1984 SCMR 759). In pursuance of this judgment, the petitioner and others appeared before the F. P.S.C. and almost all of them were approved for appointment on regular basis. It has been emphasised by the petitioner that this Court had specifically decided that seniority shall be determined as provided for in section 8 of Ordinance No.XIV of 1981.

3. In the meantime, the President on 2-8-1983, promulgated the Transfer of Population Welfare Programme (Field Activities) Ordinance No.XIX of 1983. Under Section 4 of the Ordinance; the field activities of the Population Welfare Programme were once again transferred to the Provincial Governments. The services of the petitioner were accordingly re-transferred to the Province of Punjab. A seniority list was prepared under section 8 of the Civil Servants Act, 1973 read with Section 8 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 According to the petitioner, the principle followed in that seniority list was that the incumbents were placed in seniority list from the date of their appointment under the Board in BPS-17 and older in age were placed senior to the younger where the date of appointment was the same. Meanwhile, another seniority list as a result of appointments made under Ordinance No.XIV of 1981 in BPS-17 was circulated wherein according to the petitioner, the principle of seniority provided for in section 8 of Ordinance No.XIV of 1981 was not adhered to and instead seniority in BPS-16 was also taken into account. The last mentioned list duly circulated on 16-3-1982 was withdrawn by the Population Welfare Division and instead 5 seniority lists, 4 for the Provinces and one for the Division were prepared. At this juncture, a dispute surfaced as to the status of the employees of the Population Welfare. The matter was again brought to this Court in the case of Miss. Sarfaraz Khurshid and another v. The Secretary, Population Welfare Division and others (1993 SCMR 1216) wherein it was settled that notwithstanding the transfer of the activities of the Programme to the Provinces, the employees thereof continued to be the civil servants of the Federal Government. After the decision aforesaid by this Court, the Federal Government circulated on 2-10-1993 seniority list, inter alia, of BPS-17 officers wherein seniority was fixed in accordance with section 8 of Ordinance No.XIV of 1981 and the decision of this Court reported as 1984 SCMR 759 supra furnishing guidelines on the subject was ignored. Obviously it was objected to by the petitioner, nonetheless, it was finalised on 19-9-1994. After departmental representation, the petitioner challenged the impugned seniority list before the Federal Service Tribunal which was dismissed on 25-7-1995. The Tribunal held the view that besides dates of appointment in BPS-17, the dates of appointment made in BPS-16 in the District Boards were also relevant and further that on the basis of general principles governing seniority, the incumbents in BPS-16 on promotion to BPS-17 in the Provincial Boards shall stand senior notwithstanding the fact that date of appointment in BPS-17 was the same-

4. The petitioner who appeared in person had reiterated his stance saying that seniority in BPS-16 had nothing to do with seniority in BPS-17 in Population Welfare Division which, according to him, was violative of the principle laid down in section 8(2) of Ordinance No.XIV of 1981 which provided that the employees appointed in BPS-17 on the same date, shall rank _., senior according to their date of birth.

5. In this factual background, leave to appeal is granted to consider whether seniority in BPS-16 in the Population Welfare Programme was irrelevant for promotion of the incumbents appointed in BPS-17 as Federal Government servants and were entitled to count seniority from the date of their induction in BPS-17 and that in case of their appointment on the same date older in age on the date of appointment in BPS-17 should rank senior to those who were younger in age. A.A./M-105/S Leave granted.