1998 PLP 2544 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The appellant was appointed as Income Tax Officer (B-17) on 5-4-1980 after he was selected by the Federal Public Service Commission (FPSC). He was considered for promotion to B-18 by the Departmental Promotion Committee (D.P.C.) on 16-12-1985 alongwith others but he was not cleared for promotion. The minutes of the D.P.C. recorded against his name read as follows:-- "(2) Mr. Abdul Ghani Chaudhrv. Serial No.

10. He has not been cleared for promotion and superseded in view of 3 average A.C.Rs. grading (1981, 1982 and 1983) during the last 5 years." The appellant does not appear to have challenged the decision of D.P.C. dated 16-12-1985.

2. The appellant was again considered for promotion to B-18 by another D.P.C. on 22-6-1986 but superseded. The precise observations of the D.P.C. this time against the appellant, were as under:-- "(2) Mr. Abdul Ghani Chaudhry --Out of 5 reports he earned 1-1/2 good and 3-1/2 average reports. The D.P.C. did not clear him for promotion and superseded him due to indifferent record." The appellant did not challenge his supersession by the D.P.C. this time also. The supersession of appellant by the D.P.C. on both the occasions was approved by the competent Authority as would appear from the hand written endorsement in the margins of the minutes of D.P.C. dated 16-12-1985 and 22-6-1986. The appellant, however, challenged the adverse remarks contained in his A.C.R. for the period 1-1-1983 to 31-12-1983 before the Service Tribunal in Appeal No.36(L) of 1988 which was allowed. The operative part of the order of learned Member and Chairman, Federal Service Tribunal respectively, on the appeal of the appellant reads as follows:-- , Remarks of Member FST "

14. For the reasons mentioned above, the appeal is accepted and the adverse remarks recorded in the performance evaluation report for the period from 1-1-1983 to 31-12-1983 are expunged. There will be no order as to costs. " Remarks of Chairman FST "

2. As regards merits, the immediate boss is the best judge of watching performance of the subordinate officer. The average remarks recorded in the A.C.R. of the appellant for the year 1983 by originating officer reproduced in the judgment of the learned Member depict gloomy picture of the over all caliber and performance of the appellant. At a glance to the markings made on different traits of the appellant as regards his 'Personal quality' in Part-II of the report, 'Attitude' in Part 111, and 'Proficiency in Job' in Part IV bear out that some of his qualities, attitude and some items of his proficiency in job have been evaluated as "Good" and the rest have been rated as of 'Average' or 'poor' column. Comparing the adverse remarks reflected in Part V of the report with the column wise rating on different traits, it appears that the adverse remarks project inconsistency which could not be reconciled and they need to be expunged and are, accordingly, expunged." As a result of the acceptance of the Appeal No.36(L) of 1988 by the Federal Service Tribunal, the Central Board of Revenue issued by the following letter to Regional Commissioner of Income Tax Central Region, Lahore, on 29-9-1991:-- "Sub: APPEAL N0.36(1) of 1988 FILED BY MR. ABDUL GHANI CHAUDHRY FOR EXPUNCTION OF ADVERSE REMARKS In pursuance of Federal Service Tribunal Lahore's Judgment No.D.4138, dated 15-9-1991 passed in the abovementioned appeal, I am directed to say that the competent Authority is pleased to expunged the adverse remarks communicated to Mr. Abdul Ghani Chaudhry, I.T.O. for the period from 1-1-1983 to 31-12-1983. The officer concerned may be informed accordingly. (Sd.) (Ghulam Sarwar), Second Secretary."

3. The appellant feeling encouraged by the acceptance of his Appeal No.36(L) of 1988 by the Tribunal, made a representation to the departmental authority on 5-3-1992 as follows:-- "To The Chairman, Central Board of Revenue, Islamabad. (Secretary, A.I.T. By Name) Sub: REFIXATION OF SENIORITY REPRESENTATION IN GRADE. With reverence and regard I venture to submit as under while soliciting and inviting your kind attention and due action That I had made a representation with regard to refixation of my seniority which was refused vide CBR (24)/80-AIT-1, dated 29-2-1988. The reason innuendo was an adverse entry in my A.C.R. for the period 1-1-1983 to 31-12-1983. That after having availed the departmental appellate forum I went in appeal before Honourable Federal Service Tribunal for the expunction of adverse remarks. In their exhaustive decision, the Federal Service Tribunal has totally exonerated and absolved me of the adverse entry, which had impaired and impeded my promotion to the next Grade (BPS-18). That my batch was upgraded in 1986 whereas I was ignored. I was upgraded two years later, hence smooth march of service events was retarded. That Central Board of Revenue has also expunged the remarks in compliance with the Federal Service Tribunal's orders, vide No.12(23)/88-AIT, dated 29-9-1991. No appeal has been preferred against the abovementioned order. That in view of abovementioned submissions, I beseech your honour to order for the refixation of my seniority in my batch to be effective retrospectively and with all consequential benefits. I once again request your honour Sir, to accord favour of due action in the name of justice and equity. Hoping to be blessed with all kindness. Yours obediently, (ABDUL GHANI CHAUDHRY) Wealth Tax Officer, Circle-1, Multan 20-9-1994." The above representation was rejected by Central Board of Revenue, on 4-5-1992, as under:-- "To The Regional Commissioner, Of Income Tax, Central Region,' Lahore. Subject: RE-FIXATION OF SENIORITY ALONGWITH ORIGINAL BATCH REPRESENTATION REGARDING. I am directed to refer to your Endorsement No. RCIT.PF-G~ 36/5073/Adorn, dated 14-4-1992 on the above subject and to say that according to rules, the superseded government servants lose their inter se seniority. As such Mr. Abdul Ghani Ch. has correctly been given seniority in B-18 with effect from 7-1-1988 as required under the rules. He was also informed accordingly through DOT (IT) Lahore vide Board's letter of even number, dated 29th February, 1988.

2. As regards his plea that his adverse remarks have already been expunged in pursuance of Federal Service Tribunal's decision, it is stated that the Tribunal have only expunged his adverse remarks and there is no mention for grant of seniority or ante-dated promotion to the appellant nor the officer had appealed for ante-dation promotion/refixation of seniority. Moreover, the officer was not superseded due to adverse remarks (which have. since been expunged) but was superseded twice due to indifferent overall service record.

3. In view of above position, the representation of the officer having no merits cannot be acceded to.

4. The officer concerned may be informed accordingly. (Sd.) (Ghulam Sarwar) Second Secretary." The appellant then preferred' it presentation to the Prime Minister of Pakistan on 23-6-1992 which too was rejected on 13-7-1993.

4. After termination of departmental proceedings as aforesaid, the appellant approached the learned Federal Service Tribunal and filed Service Appeal No.278 (L) of 1993 with the following prayer:-- "It is, therefore, respectfully prayed as follows:- (1) Impugned order dated 17-3-1993 and 13-7-1993 may kindly be set aside. (2) Respondents Nos.1 and 2 may kindly be directed to restore appellant's original seniority vis-a-vis respondent Nos 3 to 39 by showing the appellant above respondent No.3 in Seniority List (Annexure J) of Income-tax Officers (B-18). (3) Appellant may also kindly be awarded such other relief/reliefs to which he is found entitled as a result of acceptance of his Appeal. (4) Costs of Appeal may also kindly be awarded to the Appellant." 5 The appeal was heard by a bench of two learned Members of Federal Service Tribunal, namely, Ch. Hassan Nawaz and Mr. Muhammad Ismail. Mr. Ch. Hassan Nawaz one of the learned Members of the Bench accepted the appeal and after setting aside the orders dated 17-3-1993 and 13-7-1993, directed the competent Authority to reconsider the case of appellant's promotion from the date his juniors were pr9moted Mr. Muhammad Ismail, the other learned Member of the Bench of Federal Service Tribunal, however, came to the conclusion that appeal filed by the appellant had no merit as he was entitled to seniority from date of regular appointment in B-18 and accordingly, dismissed the appeal. The matter was, accordingly, placed before the Chairman. Federal Service Tribunal. who agreed with the opinion of Mr. Muhammad Ismail as, follows:-- "Without getting promotion ante-dated over and above the respondents who were promoted in 1985 and 1986, with due respect, I am of the view that there is nothing wrong in the seniority list which has been prepared under section (4) of the Civil Servants Act, 1973 according to the date of regular promotion to a particular post. As regards the contention of the appellant that is A.C.R, for 1983 having been expunged, he was entitled to get seniority over the respondents, is misconceived, because the Central Board of Revenue vide their letter, dated 4th May, 1992 (reproduced above) in reply to the representation filed by the appellant, had categorically stated that he was not superseded on the basis of 1983 A.C.R. but there were other factors too, e.g. indifferent service record and neither the appellant had applied for ante-dation of his promotion of refixation of his seniority, therefore, we are sorry we cannot reopen the new chapter after lapse of seven or eight years when the appellant has not sought that relief as the prayer clause shows. I fully agree with the findings of my learned brother Mr. Muhammad Ismail, Member that the appeal is barred by limitation to the extent that the promotions of respondents have neither been challenged for more than 7 years nor this point raised -now in the memo. of appeal. With regard to merits, I do not subscribe to the view recorded by learned Member Mr. Ch. Hasan Nawaz because we have to examine the case within the forecorners of law as the jurisdiction of the Tribunal is limited under proviso (b) to section 4(1) of the Service Tribunals Act, 1973 to the extent of eligibility. Mr. Muhammad Ismail, Member has rightly taken the jurisdiction point and competency of this Tribunal in promotion cases.

6. For the reasons recorded above, I agree with the findings of Mr. Muhammad Ismail, Member, and I also dismiss the appeal on merits as well as on the point of limitation.

6. Leave was granted against the judgment of learned Service Tribunal to consider the following legal contention:-- "Leave to appeal is granted to consider as to whether the petitioner could have been denied his promotion and seniority on the grounds stated in the impugned order, more particularly when the adverse remarks had already been expunged."

7. Mr. Bashir Ahmed Ansari, the learned counsel for the appellant contended before us that the adverse remarks recorded in the A.C.Rs. of appellant having been expunged, the basis of supersession of appellant by the D.P.C. on two occasions became non-existence, and therefore, the appellant was entitled to restoration of his original seniority. The learned Deputy Attorney General. on the other hand supported the judgment of Federal Service Tribunal.

8. Section 8 of the Civil Servants Act, 1973 which deals with the seniority of civil servants, reads as follows:- "

8. Seniority.--(I) For proper administrarior) of et service, cadre of post, the appointing authority shall cause a seniority- list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be. (2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service of cadre whether serving in ,the same department or office or not, as may be prescribed. (3) Seniority on initial appointment to a service,, cadre or post shall be determined as may be prescribed. (4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that the civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post." The rule relating to determination of seniority of the departmental promotees inter se is stated at page 226 of the ESTACODE (1989 Edition) as follows:- "B. Departmental Promotions.--(1) Officers who are approved by the Selection Board/D.P.C. for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that: - (a) an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch; (b) when in a single reference, the Selection Board/D.P.C. are asked to recommend more than one person and the recommendation of the Section Board/D.P.C. is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons conferred, the recommendation of the Selection Board/D.P.C in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made; (ii) Officers approved by the competent Authority, on regular basis, for promotion to higher posts in the same batch shall retain the same seniority on promotion as they were enjoying in the lower grade. In case the date of continuous appointment of two or more officers in the lower grade is the same, and there is no specific rule whereby their inter se seniority in the lower grade can be determined, the officer older in age shall be treated senior; (iii) The seniority of departmental promotees to the higher grade shall count from the date of their regular promotion to the higher grade. The word regular implies: (a) that the promotions to higher grades were made in vacancies reserved for departmental promotion in accordance with the prescribed roster; (b) that the promotions to higher grades were made in accordance with the prescribed Recruitment Rules i.e. on the recommendation of the Departmental Promotion Committee or the Selection Board (and in consultation with the F. P. S. C . where such consultation was necessary under the Consultation Regulations) and with the approval of the authority competent to make these appointments; and (c) the promotions to higher grades were kept within the maximum quota prescribed in the Recruitment Rules for Departmental Promotion. In the event of the prescribed Departmental Promotion quota being exceeded in any particular case or cases, the seniority of the person or persons promoted in excess for the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would have been made, if the quota had been properly followed. "

9. Therefore, the general rule for seniority is, that a civil servant when promoted to a higher grade takes his seniority in that grade from the date of his regular promotion in the grade. However, while fixing the seniority of departmental promotions inter se the following considerations are kept in view:-- (a) The departmental candidates promoted to higher grade in one batch retained their seniority which they enjoyed in the lower grade; (b) A civil servant, senior in the lower grade, inadvertently omitted from consideration by the Departmental Promotion Committee or his case is deferred by the D.P.C. on account of incomplete record or for any other reason for promotion to higher post or grade, on subsequent promotion takes his original seniority from the date his juniors are promoted to the higher grade. Therefore, a civil servant consciously superseded after considering his service record by the D.P.C. cannot regain his original seniority on subsequent promotion so long the order of D.P.C. superseding him stands. The supersession of the civil servant in such a case is neither inadvertent nor it falls in the category of deferment, so as to entitle the civil servant on subsequent promotion to regain his original seniority.

10. In the case before us, the appellant was superseded by the D.P.C. on 16-12-1985 and 22-6-1986 respectively, after assigning specific reasons and there is nothing on record to show that these orders of D.P.C. were challenged by the appellant or were reversed by the competent Authority. 1n these circumstances, so long the two orders of D.P.C. passed on 16-12-1985 and 22-6-1986 are not set aside or reversed, the appellant cannot regain his original seniority and will be entitled to the seniority from the date of his regular appointment in the higher Grade (B-18). No case for interference with the judgment of learned Tribunal is made out. The appeal is, accordingly, dismissed but we will mike no order as to costs in the circumstances of the case. M.B.A./A-101/S Appeal dismissed.