2001 PLP (C (PLC(CS))

12. In their comments filed by respondent No.3 i.e. Bureau of Emigration, it has been stated that the appellant joined the Organization as Assistant on 1-3-1979. He was appointed as Orientation and Briefing Officer on ad hoc basis on 9-1-1984. Subsequently he was recommended by FPSC for appointment as O & B Officer vide letter dated 19-8-1986. The Bureau of Emigration and Overseas Employment initially sent requisition of 3 posts of 0 & B Officers i.e. Sindh (R)-1, N.-W.F.P.-1 and Punjab-1 to the FSPC on 1-11-1984. In consequence of which the Commission recommended the following 3 candidates vide their letter dated 11-11-1985:-- (i) Mr. Ghulam Hussain Talpur Sindh (R) (ii) Mr. Habibur Rehman N.-W. F. P. (He did not join and he was replaced by alternate Mr. Muddassar Ali Shah. (iii) Mr. Muhammad Ilyas. Punjab

13. The appellant appeared for interview alongwith the above named officers, but he was not selected due to low merit assigned by the Commission. Subsequently two posts of O & B Officers were fallen vacant due to the promotion of M/s Muhammad Qasim Bhutta and Rizwan Ahmed to the post of Assistant Director in the year 1986. Therefore, fresh reference was sent to FPSC on 24-7-1986 for recruitment of said two O & B Officers, one against merit and the other against Punjab quota. In response to second requisition, the FPSC recommended the name of the appellant against Punjab quota as fresh selectee vide their memo. dated 19-8-1986. It is quite clear from the nomination letter of FPSC referred to above, that the appellant was selected against fresh vacancy from the panel of 1985 in order to avoid lengthy procedure of fresh advertisement.

14. No doubt the appellant was holding the said post on ad hoc basis from 19-5-1986 to 18-8-1986 prior to fresh selection by FPSC. However, he cannot be given the seniority of his ad hoc period as laid down in sub para.(a) of para. A (iii) of ESTACODE which is reproduced below:-- "(a) If the person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation by the

15. Accordingly the appellant was assigned seniority from the date of his regular appointment by the FPSC, i.e. 20-8-1986.

16. The appellant agitated against his seniority. A committee was constituted to examine the case. It recommended his seniority with the batch of 1985. The case was re-examined in the Bureau and referred to the Manpower Division for soliciting advice from the Establishment Division for reckoning his seniority with the batch of 1985 or 1986. The Establishment Division vide their O.M. dated 28-4-1997, opined as under:-- "The undersigned is directed to refer to the correspondence resting with the Manpower and Overseas Pakistanis Division's O.M. No.8(2)/ 94-Estt/Emig. I, dated the 24th March, 1997 on the above subject and to state that Mr. Rabbani will reckon seniority from the date he joined the post after approval of the competent Authority on the recommendations of FPSC. Promotees of the respective calander year (1986) would rank senior to him."

17. The appellant was accordingly informed of the above decision vide letter dated 24-5-1997, against which the appellant has come in appeal before this Honouable Tribunal.

18. It has been clarified by the respondents department that the above advice of the Establishment Division is quite lawful as laid down under general principle of seniority at page 277 of the ESTACODE 1989, which is reproduced below:-- " 'Departmental promotee vis-a-vis direct recrutee' 'Officers promoted to the higher grade in a continuous arrangements and as a regular measure in a particular year shall as a class to be senior to those appointed by direct recruitment in the same year'."

19. It has been rebutted if there were 5 posts of O & B Officers in the year 1984. It has been clarified that initially there were 3 posts, which were sent to the FPSC for recruitment, as already explained above. Later on, two posts fell vacant due to the promotion of two O & B Officers to the posts of Assistant Director (B-17).

20. The appellant was not selected with the group recommended by FPSC in 1985. Therefore, the stand of the appellant is not correct.

21. It has further been clarified that the appellant was given benefit of his ad hoc service except seniority which was reckoned from the date of joining the post after nomination by FPSC i.e. 20-8-1986.

22. With regard to objection of the appellant against promotions appointment, of respondents Nos.5, 6, 7 and 8 it has been clarified that Mr. Masood Ali, respondent No.5, was previously approved in absentiaduring his posting abroad in the office of Community Welfare Attache Office, Riyadh by the DPC held on 25-11-1985 and 28-12-1986 respectively. On joining his duty from abroad, it was decided that respondent No.5 who stood promoted could enjoy pro forma seniority as Superintendent (B-16) w.e.f. 25-11-1985 while temporarily working as Welfare Officer (B-16) as stop gap arrangement.

23. Respondents No.6 and 7 while holding the post of Superintendent were approved for appointment as Admn. Officers by the DPC held on 28-12-1986. Their appointments were made in accordance with the Bureau's recruitment rules of 1984 which remained operative till 19-4-1988. Under the said Rules, 100% vacancies of Admn. Officers (B,-16) could be filled by promotion from amongst the Superintendent Assistant Stenographer and Hostel Superintendent.

24. Respondent No. 8 Syed Mobin Ali, was recommended for promotion to the post of Superintendent by the DPC-11 on 28-12-1986 and it was decided by the DPC that he would be reverted to his original post as and when respondent No.5 joined the Bureau.

25. Respondents Nos.9 to 11 were selected against the first requisition of three O & B Officers whereas appellant could not qualify for the post.

26. It has been clarified that provisional seniority list circulated on 23-5-1992 was formulated on the basis of each cadre. Hence the names of respondents Nos.5 to 8 appeared on the seniority of their own cadre. Since, they were quite eligible for promotion, they were accordingly promoted as Assistant Director (BPS-17) on 28-12-1986. They were, therefore, shown senior to the appellant on the basis of general principle of seniority because promotees rank senior to those appointed by direct recruitment in the same calander year.

27. Federal Public Service have also filed their comments whereby the position as brought out by the respondent No.3 has been confirmed to the effect that initially there were 3 posts referred to the Commission and 3 persons were selected. The appellant was not one of the selectees. Subsequently another requisition was made and the appellant was appointed under Punjab Quota from the waiting list. Therefore, the appellant was rightly given seniority according to his nomination selection by the FPSC made on 19-8-1986, from the date of his joining after approval.

28. The comments of the remaining private respondents mainly focus on the point that the appellant was a fresh appointee and, therefore, according to rules, he could reckon his seniority from the date of his nomination by the FPSC. .

29. With these submissions, it has been prayed to dismiss the appeal.

30. We have listened to the arguments of the parties and examined the record. In our view following points need examination: (i) Whether ad hoc service could be counted for the purpose of seniority? (ii) Whether the departmental promotee stands senior to one .recruited afresh in the same calander year? (iii) Whether the alleged irregularities committed by the department in appointments, if at all can be challenged at this stage?

31. After examination of the above points, we come to the following conclusions:-- (i) We have examined the rule position. We find that we period of ad hoc appointment cannot be counted towards seniority. In this regard, we reproduce below sub-para. (a) of para. A (iii) of General Principles of Seniority. "(a) If the person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation by tire FPSC. " In the light of this, we repel the argument of the appellant -that his ad hoc period be counted towards seniority. (ii) In this regard, we quote para.C of General Principles of Seniority, which reads as under: "Departmental promotee vis-a-vis direct recruits: Officers promoted to the higher grads in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year. " Since the appellant was nominee of 1986 batch, because he was nominated appointed by the FPSC on 19-8-1986, he cannot claim seniority over the respondents who were promoted departmentally in 1986. The private respondents were promotees. The appellant being a fresh appointee, would stand junior to them, as per rules quoted above. (iii) If there was any irregularity, the appellant should have challenged at that time by way of an appeal before this Tribunal. Now, since too much water have flown down the river, irregularity if at all committed in the past cannot be redressed now at this belated stage. Although in our opinion, there was no irregularity committed.

32. For the foregoing reasons, the appeal having no merit is dismissed.

33. No order as to costs. Parties be informed. H.B.T./237/St/F/ Appeal dismissed.