2001 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER).

The appellant was employed in Pakistan Railways in various capacities but in the Litigation Branch he was appointed as Assistant Litigation Inspector in 1982 on ad hoc basis which is said to have been regularized by the order, dated 20-3-1988 w.e.f. 9-12-1982. This post of Assistant Litigation Inspector was redesignated as Litigation Assistant and further line of promotion of the Litigation Assistant was as Senior Litigation Assistant (BPS-13). The appellant was given the ad hoc: appointment of Senior Litigation Assistant on 20-9-1988 and allegedly after clearance by the DPC and approval of the competent authority his promotion was regularised w.e.f. 8-5-1991 by order, dated 22-5-1.991. Accordingly a provisional seniority list was circulated pertaining to the Senior Litigation Assistant and others on 28-2-1994 and a final seniority list was issued on 20-11-1994 and in both these lists the appellant appeared at S.No.2. However, the appellant was aggrieved by order, dated 3-9-1997 whereby, the private respondent No.4 has been placed at seniority position No. I-A, in the seniority list. After seeking departmental remedy ineffectively the present appeal has been filed.

2. The respondents department as well as the private respondent No.4 have filed their written comments separately. We have listened to 'the arguments and perused the record.

3. The respondent had raised a preliminary legal objection stating that the cause of action pertains to the Railways Headquarters at Lahore and therefore, the case should have been filed at Lahore Office of this Tribunal. This objection has no force because there is no specified territorial jurisdiction of various offices of this Tribunal. Appeals of civil servants are heard at various places within the country as convenient to the parties without any restriction about territorial delimitation. Hence had there been a question of convenience of a party for the hearing of case at Lahore the request should have been made which could be considered on merits. But there is no restriction in the filing of appeal anywhere in Pakistan as the main case is against the Federal Government and the Federal Government exists on every inch of the territories falling within the country.

4. The main stress of the learned counsel for the respondents was on the ground that practically the post of Litigation Assistant was not a post of pr6motion. Therefore, previous service could not be counted. He was of the opinion that the post of Litigation Assistant was the selection post and the selection of 9 persons was finalised and notified vide order, dated 7-5-1988 wherein the private respondent No.4 appeared at Serial Number 2 on the basis of merit and the appellant appeared at serial number 4 thereof, and since this was the basic document determining the interest seniority of Litigation Assistants (B-11), therefore, this document shall have to be considered as a basic document for the purpose of promotion and determination of seniority. It was further added that vide an order, dated 13-6-1991 the said merit list was notified to various offices and the same was notified in the official gazette of June, 1991. Learned counsel further added that in 1993 some Litigation Assistants were considered for promotion but the private respondent No.4 was deferred due to non-availability of certain record. He was later on promoted w.e.f. 27-2-1997 on regular basis and thus he filed an application for the determination of seniority and on the basis of merit position notified vide order, dated 7-5-1988, the impugned order, dated 3-9-1997 was passed. The learned counsel as well as the private respondent No.4 argued that the post of Litigation Assistant was a selection post as per Pakistan Railways Personnel Manual and the appointment was to be made of the qualified people in accordance with the requirement at S1.No.15, and that the seniority was to be determined on the basis of initial appointment as a result of selection by the competent selection board and according to orders of merit. It was argued that the deferred candidate reckoned his position in the seniority list on getting promotion at a later stage, and that the earlier appointment cannot be counted towards length of service for a selection post. .

5. The examination of record shows that the appellant joined the Litigation Department in 1982 whereas the private respondent No.4 joined the same in 1985, both on ad hoc basis. The appellant's ad hoc appointment was regularized from the original date as per orders, dated 20-3-1988, whereas respondent No.4 was regularized vide order, dated 7-5-1988. However, the appellant was promoted on ad hoc basis to B-13 in 1988 but he got regular promotion in 1991 by clearance from the DPC, whereas the private respondent No.4 was cleared in 1997. Hence prima facie the appellant was regularized earlier than the private respondent No.4 and he was promoted 6 years prior to the respondent No.4 and in such a situation the placement of private respondent No.4 over and above the appellant was not justified.

6. The principles of natural justice are to be read as part and parcel of every statute as held by the Honourable Supreme Court in various cases. If an order was intended to be passed against the interest of the person he deserves a right to explain his view-point. In addition the Personnel Manual of the Pakistan Railways, provides at serial number 610 as follows:-- "

610. In every case in which it is found necessary to alter the position of ran individual on the seniority list, to his disadvantage, a show-cause notice must be served on him and his explanation obtained before final orders are-passed." The seniority list is proposed to be provisional and circulated to all concerned officials so that any one having objection thereto should file the same and the other should have the opportunity to watch the process during a particular period and to defend the position. If the provisional seniority list is not challenged and final seniority list is issued then every person aggrieved by his position in the seniority list has the right to seek redressal of his grievance through judicial forum. The Department had finalized seniority list in 1994 and it could not alter the seniority position of a civil servant 3 years thereafter in 1997 and that too without issuing show-cause notice to the appellant to present his view point. With the circulation of a final seniority list the right to maintain his position in the seniority list was vested in the appellant and same could not have been withdrawn without providing him opportunity of being heard. In this view of the mater the impugned order suffered from a very gross irregularity and the same cannot be upheld.

7. The learned counsel for the respondent department tried to draw a line on demarcation between the process of selection and the regularization of an ad hoc appointment. He took pains to explain that the order notified on 20-3-1988 for the regularization of the appellant w.e.f., 9-12-1982 was for official purpose and the appellant will be deemed to have been selected for appointment in accordance with the merit determined in the order, date 7-5-1988. However, the perusal of both the orders shows that the order, dated 20-3-1988 has the same effect as the other one because the process of selection was said to have completed and the competent authority has approved the regularization of ad hoc service. We cannot agree with the proposition that the regularization of ad hoc service is only for extending financial benefits. An ad hoc employee is otherwise entitled to the emoluments of the post and therefore, regularization is not restricted to financial benefits only but regularization means commencing of regular service with effect from a particular date. Hence the regularization of ad hoc service has the same effect for filling up of a selection post as an appointment by selection because a regularization is also processed through same panel by Selection Board or DPC. Hence we have to hold that the appellant was declared by the respondent department to be a regular Litigation Assistant w.e.f. 9-12-1982 vide order. dated 20-3-1988, whereas the private respondent No.4 was' appointed on regular basis w.e.f. 7-5-1988, and therefore. he cannot claim seniority over the appellant.

8. The learned counsel for the respondent Department laid considerable stress on the point that the senior person in tile merits list retains his original seniority position as in the lower cadre if his promotion to the higher post has been deferred earlier due to deficiency in the documents. There is no doubt that this principle is applied in all the promotion cases subject to the only condition that the senior person is restored to the seniority position over and above his juniors with whom he had been considered and deferred but since the appellant was promoted on ad hoc basis on 20-9-1988 and on regular basis after clearance and approval of the competent authority on 8-9-1991 as Litigation Assistant whereas the private respondent No.4, was neither considered for promotion in 1991 nor was held deferred. After the promotion of the appellant in 1991 on regular basis, another process of promotion was conducted in 1993 and in that list the private respondent No.4 was considered and deferred. Thereafter, the third round of consideration took place in 1997 and he was promoted to B-13.. In such a manner he can reckon his seniority vis-a-vis those with whom he was considered and deferred but not within those who were cleared earlier. Thus, even if the merit list, dated 7-5-1988 of Litigation Assistants (B-11) is taken as the only documents determining the merit, the promotion of the appellant to the next higher grade was made in 1991 whereas the respondent No.4, was neither promoted nor deferred which only means that if he was senior he stood superseded. That was the proper time when he could challenge his supersession if any. He has not -Wised any objection with regard to the appointment of the appellant or. 20-3-1988, his ad hoc promotion on 20-9-1988 nor his regular promotion on 8-1-1991. He had also not challenged the provisional seniors list by representation or final seniority list by service appeal. Hence all these notifications had attained finality. It was not all justified for the respondent department to have issued the impugned order without even affording an opportunity to the appellant of show-cause notice to explain his view point. Hence the impugned order cannot be upheld.

9. Consequently we accept this appeal and set aside the impugned order dated 3-9-1997. No order as to costs, Parties be informed. H.B.T./275-ST/F Appeal accepted.