1994 PLP 1269 (SCMR)

SAAD SAOOD JAN, J.‑‑‑These are two appeals by special leave from the judgment dated 6‑8‑1990 of the Federal Service Tribunal, whereby the appeal preferred by respondent No. 1 was allowed and the name of the appellant in Civil Appeal No. 28 of 1991 was directed to be excluded from the seniority list of audit assistants/senior auditors, serving in the Directorate of Revenue Receipts Audit.

2. In November 1973 the Auditor‑General of Pakistan constituted the Directorate of Revenue Receipts Audit in order to discharge his added responsibilities with regard to the audit of the receipts of the Federal Government under the hands of customs, excise duties, sales tax, etc. For recruiting staff for the new Directorate he invited nominations from, inter alia, the Accountant‑Generals, of persons willing to serve in the new Directorate.

3. Shabbir Hussain Chohan, appellant in Civil Appeal No. 28 of 1991 and hereinafter referred to as the appellant, was a permanent employee in the office of the Accountant‑General, Punjab. On 1‑3‑1971 he was sent on deputation to the office of the Auditor‑General at Lahore. He too applied for appointment in the new Directorate. He was selected and by a letter dated 1‑3‑1974 the Directorate requested the Auditor‑Generai to relieve him. By an order dated 5‑3‑1974 he was relieved and was directed to report for duty in the new Directorate immediately. He remained under training from 5‑3‑1974 to 18‑3‑1974 at the Customs and' Excise Training School, Walton. The record does not indicate that after receiving the training he ever reported for duty in the new Directorate. On the other hand, by an office order issued on 3‑4‑1974 by the Auditor‑General the order by which he was relieved was `cancelled with retrospective effect'. Apparently, he was never treated as member of the establishment of the new Directorate. In a letter dated 11‑10‑1982 addressed to the Auditor‑General the Directorate gave the service history of the appellant so far as the Directorate was concerned. It was stated in the letter: "On the formation of this Directorate in 1974, certain staff was selected from the P.A.D. offices and transferred to the Directorate for permanent absorption. Among them was one Mr. Shabbir Hussain Chohan, Audit and Accounts Assistant, who alongwith M/s. Abdul Rauf Qureshi, SA.S. Accountant and Muhammad Ashraf, Audit and Accounts Assistant, was relieved from your office on 4‑3‑1974 (F.N.) vide your Office Order No. 1935‑Estt./102‑73, dated 3/74 with the directive to report for duty in this Directorate. M/s. Qureshi and Ashraf joined the Directorate on 5‑3‑1974 (F.N.) and 4‑3‑1974 (A.N.) respectively, but any clue regarding the joining of this Directorate by Mr. Shabbir Hussain Chohan. Audit and Accounts Assistant is not forthcoming from the records of this office. From a separate correspondence exchanged with the Customs and Excise Training School, Walton, Lahore, it is learnt that Mr. Chohan did receive training at the school alongwith other staff of this office. during the period from 5‑3‑1974 to 18‑3‑1974. Since then. however, the official has neither been shown on the strength of this Directorate, as all the relevant records are silent on the issue nor are his whereabouts known. In view of the above, the factual position with regard to the services of Mr. Chohan may kindly be looked into and this office advised accordingly." The underlined passages do indicate that after receiving his training in the School at Walton, he did not report for duty in the Directorate till the very order by which he was relieved from the office of the Auditor General to join his new appointment was cancelled `with retrospective effect'.

4. On 6‑7‑1983 a seniority list of the officials of the Directorate was issued. The name of the appellant was not included therein presumably for the reason that he was not considered as member of the establishment of the Directorate. On 31‑8‑1983 the office of the Auditor‑General of Pakistan for the first time took the position that the appellant was serving on deputation in the office of the Auditor‑General of Pakistan from the Directorate. Consequently, the Directorate issued a revised seniority list in which he too was included and shown at Serial No.

10. Respondent No. 1 in these appeals who occupied the position at Serial No. 18 filed a representation against the inclusion of appellant's name in the seniority list on the ground that he was not on the strength of the Directorate. The representation remained unanswered. On 20‑5‑1984 another provisional seniority fist was issued. Here again the appellant was assigned a place in the seniority list. Respondent, No. 1 once more represented against the inclusion of his name in that list. This representation too elicited no response. He then filed an appeal before the Service Tribunal. It was accepted. From the judgment of the learned Tribunal the Auditor‑General as well as the appellant have come in appeal to this Court.

5. The learned Tribunal was of the view that the appellant was not a member of the establishment of the Directorate and for that reason he could not be included in the seniority, list of the officials of the Directorate. It rejected the stand taken by the appellant that he was to be treated as one on deputation from the Directorate to the office of the Auditor‑General. Accordingly, it directed the exclusion of his name from the seniority list of the officials of the Directorate.

6. It is contended on behalf of the appellants that the appeal preferred by respondent No. 1 before the Tribunal was incompetent inasmuch as the seniority list which he challenged was provisional in nature and as no final list had yet been issued no appeal lay before the learned Tribunal. It is to be noticed that the appellant did not press this objection before the Tribunal. In any event, the final list has since been issued in which the name of the appellant has also been included. Apart from that in his appeal before the Tribunal respondent No. 1 was not contesting the position assigned to him in the seniority list vis‑a‑vis the appellant but was objecting to the very inclusion of the appellant's name in the list. In the circumstances when his departmental representation remained unanswered for 90 days he could competently approach the Tribunal in appeal.

7. The main question of consideration before us is if the appellant was a member of the establishment. of the Directorate. It is no doubt true that by a letter dated 1‑3-1974 he was selected for appointment therein; on that day, as already stated, he was working in the office of the Auditor‑General on deputation from the office of the Accountant‑General; he was relieved by the office of the Auditor‑General to join the Directorate on 5‑3‑1974; he received training prior to being given a posting in the Directorate. It is also clear from the letter dated 11‑10‑1982 of the Directorate, referred to above, that after completing his training he did not join the Directorate. In fact, the very order by which he was relieved by the office of the Auditor‑General to join the Directorate was cancelled with retrospective effect. Thus he was not relieved to join his new appointment in the Directorate. A copy of the order of cancellation was endorsed to him also. He does not appear to have ever protested that despite his selection he was not being allowed to join the Directorate. Apparently, he was quite continuing to serve in the office of the Auditor‑General.

8. Admittedly there is no order issued by the Directorate appointing him against any particular post. The order of 1‑3‑1974 by which he was selected did not mention the appointment that he was going to hold in the Directorate. There is also no order of the Directorate confirming him against any post on its establishment. There is also no order by which he was sent on deputation from the Directorate to the office of the Auditor‑General. Thus, the finding of the learned Tribunal that he never held any appointment in the Directorate does not suffer from any infirmity. The‑ question therefore of his going on deputation from the Directorate to the office of the Auditor‑General did not arise.

9. Section 8, Civil Servants Act, 1973, deals with the seniority of civil servants. It is not disputed before us that the establishment of the new Directorate constituted a separate and independent cadre. As the appellant did not hold any post in the said cadre, he could not possibly be included in the seniority list of the members of that cadre. The learned Tribunal was therefore right in holding that his name had been wrongly included in the impugned seniority list and for that reason it should be excluded. These appeals are without any merit and are hereby dismissed with no order as to costs. AA./A‑1109/S Appeal dismissed.