1995 PLP (C (PLC(CS))

7. Mr. Abdul Hamid‑II (R.No. 8) 17‑12‑1976

8. S. Mahmood Ali (R.No. 9) 24‑4‑1979

9. Mr. Muhammad Saleem Ahmed (R.No. 10) 6‑1‑1977

10. Mr. Wazir Muhammad (R.No. 11) 26‑1‑1977

11. Mr. Mushtaq Ahmed‑I (R.No. 12) 17‑2‑1977

12. Mr. Chanzeb Khan (R.No. 13) 4‑3‑1977

13. Mr. Hukam Dad Khan (R.No. 14) 11‑4‑1977

14. Mr. Ijaz Pervez (R.No. 15) 5‑5‑1977

15. Mr. Iftikhar Ahmed Siddiqui (R.No. 16) 28‑1‑1978

16. S.M. Azizuddin (R.No. 17) 13‑8‑1978 From the above data, it is clear that all the respondents were appointed/promoted as Assistant prior to the direct appointment as Assistant of the appellant: My learned brother has mainly based his judgment on the seniority list of Assistants of Economic Affairs Division, circulated on 30‑3‑1983, but he seems to oversight the fact that this seniority list was withdrawn by the respondent's Department vide their Office Order No. 12/84, dated 8‑1‑1984. Again the seniority list of 1982 came under consideration of the Tribunal in Appeal No. 216‑R of 1984 filed by Mr. Shahabuddin Ahmed and the Service Tribunal in its judgment dated 5‑10‑1987 held in para. 5 that: "However, the list should have been prepared by the order of the Secretary, whereas in the present case the Joint Secretary has finalised the list. The list of 1982, in these circumstances, appears to be invalid." In these circumstances, the plea of the appellant that the seniority list of 1982 remained undisputed and undisturbed till 1991 is not based on facts.

9. It also appears from Annexure III i.e. a note portion dated 26‑2‑1991 filed by the respondent's Department with their objections that M/s. S.H. Zaidi, Wazir Muhammad, Chanzeb Khan and M.A. Bari Khan, had been assigned their due seniority with effect from the dates of their regular promotions as Assistants with‑‑effect from 6‑4‑1973, 26‑1‑1977, 14‑3‑1977 and 5‑5‑1977 respectively. Even otherwise, the Establishment Division, in view of the judgment of this Tribunal in S. Shahabuddin Ahmed's case, held the seniority list of 1982 to be invalid. Moreover, if the contention of the appellant that respondents Nos. 2 to 17 were ad hoc, is presumed to be true for the sake of arguments, even then the appointments of all the respondents with the exception of M/s. Mahmood Ali, Iftikhar Ahmed Siddiqi and S.M. Azizuddin, fall within the period from 1‑1‑1972 to 5‑7‑1977 and with their exemption from the purview of section 12‑A of the Civil Servants Act, any irregularity or infirmity involved in their appointments stood condoned in view of a Full Bench judgment of this Tribunal in Appeal No. 296(R) of 1986 of Muhammad Zakria Khan v Secretary, Establishment Division, etc reported in 1990 PLC (C.S.)

45. This judgement was based on the admission of the representative of the Establishment Division that no formal order of regularisation in the case of those appointed between the period from 1-1-1972 to 5-7-1977 was required to be passed. This judgment has been followed by two other Full Bench judgment of this Tribunal reported in 1992 PLC (C.S.) 717and 1993 PLC (C.S.)

220. As such all the respondents except respondents Nos. 9, 16 and 17, would be deemed to be regular from the date of their initial appointment who fall within the period mentioned in section 12-A of the Civil Servant Act, 1973. They having been appointed/promoted prior to the appellant s direct appointment, the later has no claim of seniority against them. As such he cannot be held to be senior to those respondents.

10. As regards respondents Nos. 9, 16 and 17, they were not appointed/promoted between the period from 1‑1‑1972 to 5‑7‑1977, but their stand is that they have been regularised by the Department with effect from the dates of their respective appointments/promotions. From perusal of the record, I found that M/s. Iftikhar Ahmad Siddiqui (respondent No. 16) and S.M. Azimuddin (respondent No. 17) were declared as surplus Assistants in the Ministry of Industries and‑were absorbed in the Economic Affairs Division with effect from 28‑1‑1978 and.13‑8‑1978 respectively vide their absorption orders dated 29‑1‑1978 and 19‑9‑1978. Mr. Mahmood Ali, respondent No. 9, who was a U.D.C. and promoted as temporary Assistant in the Economic Affairs Division with effect from '24‑4‑1979 vide Office Order, dated 5th June, 1978. But there is nothing on the record about their regularisation and neither the department has produced any such document. Mere the mention of their names in the seniority list does not confer any right for their confirmation unless a specific order is passed in this regard. The record is silent whether their appointments were made on regular basis against promotion quota or otherwise. In the absence of any proof about their regularisation as Assistants against their own quota, we are unable to presume them as regular holders of the posts of Assistants.

11. The net result of the above discussions is that the appeal of the appellant is dismissed against all the respondents except respondents Nos. 9, 16 and .17 i.e. M/s. S. Mahmood Ali, Iftikhar Ahmed Siddiqi and S.M. Azimuddin. Since the record is silent about their regular appointment as Assistant, therefore, in the interest of justice, we leave it to the Department to refix their seniority vis‑a‑vis the appellant on the basis of the record available with the Department. The appeal otherwise, stands dismissed with no order for costs. ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑Appellant and all the private respondents herein are working as Assistants in the Economic Affairs Division. Appellant Muhammad Saeed filed this appeal wherein he challenged the seniority list issued on 21‑3‑1994 relegating his position in the seniority list at S. No. 57, vis‑a‑vis his colleagues. The appeal was heard by a Bench of the Tribunal consisting of Mr. M. llyas Lodhi and Mr. Noor Muhammad Magsi, Members. Mr. M. Ilyas Lodhi, Member initiated the judgment and allowed the appeal holding that the seniority list issued in 1982 could not be revised in 1994, and the appellant be given seniority as per 1982 list. The other Member, Mr. Noor Muhammad Magsi has dismissed the appeal on various grounds, inter alia, that all the private respondents were appointed/promoted as Assistants on different dates earlier than the appellant, and they had rightly been given seniority from the date of their regular appointments. There being difference of opinion between the two learned' Members, the matter has come up before me in terms of clause (b) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973. Notices were issued to the parties for 31‑5‑1995 and I. heard the appellant as well as his Advocate, as also the departmental representative and the private respondents named above.

2. The contention of the learned counsel for the appellant is that since 1982 the appellant enjoyed seniority and it would be unfair to change the seniority position after 12 years. It is argued that this change has been made in 1994 on the representations of the respondents, therefore, this seniority cannot be maintained.

3. Mr. M. Abdul Majeed, Section Officer, E.A.D. argued that seniority list of 1982 was challenged before this Tribunal in Appeal No. 216(R) of 1984 and the Tribunal by its judgment dated 5‑1‑1987 held the seniority list of 1982 as invalid. He submitted that the respondent Department took up the matter with the Establishment Division and in 1993 issued a provisional seniority list and after inviting objections, a final seniority list was issued in 1994. It is stated that all the private respondents were appointed as Assistants much earlier than the appellant, when even he was not in service and injustice was done to the respondents and this entire process was made on the representations filed by them. Private respondent Wazir Muhammad submitted that when the seniority list of 1982 was issued, he made representation and it cannot be said that none objected to it, and since the matter was pending for adjudication before the Tribunal up to 1987, the department could not finalise the seniority list, and the seniority list of 1994 was issued after inviting objections. Respondent No. 3, S.H. Zaidi, submitted that the objection of the appellant with regard to observance of quota for determining seniority is irrelevant as quota is observed only for the purposes of making appointments.

4. As the record bears out that all the respondents were appointed as Assistant prior to the appellant, and their appointments as such stood regularised as held by this Tribunal in the case of Khan reported in 199() PLC (C Sue, and the appellant never challenged the regularisation of the respondents, therefore, they were deemed to be regular promotees, and under the rules, they were rightly shown senior to the appellant. It may also be observed that under section 8 of the Civil Servants Act, 1973, seniority not being a vested right of a civil servant, the department in the circumstances of the case, from time to time, has to prepare and revise seniority lists and this exercise is done after inviting and settling objections of the aggrieved persons. It is also a fact that the disputed seniority list of 1982 had been the subject matter of adjudication by this Tribunal which was finally decided in 1987, and the department had reviewed the entire situation after consultation with the Establishment Division, and issued a provisional seniority list in 1993 whereon objections were invited from the appellant. Therefore, it cannot be said that he was condemned unheard and without notice the seniority position was changed. The learned Member Mr. Noor Muhammad Magsi has rightly held that the appointments of the respondents were regular and they were to regain seniority over the appellant from the date of their regular appointment as Assistants, and I am in full agreement with the findings and the reasonings recorded in his judgment. I would, therefore, also dismiss the appeal. In terms of clause (b) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973, the order of the Tribunal be expressed in the opinion of the Chairman. H.B.T./1066/Sr.F Appeal dismissed.