1988 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN).‑‑Appellant Major (Retd) Ahmad Hussain Sheikh, filed this appeal on 1‑2‑1987, against notification dated 12th January, 1987 issued from the Establishment Division in respect of induction of certain officers of the Armed Forces, including the appellant, as Section Officers in the Office Management Group in BPS‑18 from the respective dates mentioned therein. The appeal was originally directed against the Government through Establishment Division. Amended memo of appeal was filed on 6‑4‑1987, wherein names of 136 Section Officers were added as the respondents.

2. The appellant's case, briefly stated, is that he was permanently inducted in the Office Management Group with effect from 31st October, 1979 on selection by High Powered Selection Board vide gazette notification No.9/4/81‑C.III(B), dated 3rd June, 1981. Likewise, some other Army Officers, some of them belonging to his batch, were also inducted in civil posts vide gazette notification No.9/4/81‑C.III(B), dated 26th hay, 1981 as per approval accorded by the President in February, 1981. Rules as to induction/re‑employment of the officers of the Armed Forces of Pakistan in civil posts were published on 10th February, 1980. The rules, inter alia, provided for the inter se seniority of the inducted officers. Rule 15 thereof provided that the inducted officers would count seniority in the grade to which they were inducted from the date of their induction. This rule was explained in the Government letter No.14/5/78.D.I11, dated 14th July, 1981, to the effect that the inductee officers would be deemed to have been inducted into their respective groups with effect from the date they started officiating against the post in the said Group on transfer from the Army and would count their seniority in the relevant group with effect from the respective dates of their induction; and it was further clarified that the same conditions would also apply to those Defence Service Officers inducted in various Groups who had already retired from the Defence Service. The Establishment Division issued a provisional seniority l1st of all the Section Officers (BPS‑18) under No.8/2/86‑OMG‑I of 10th November 1986. The appellant was placed at S.No.134. He filed representation/ appeal dated 18th November, 1986 against the seniority assigned to him and claimed seniority from 31st October, 1979 on the basis of his appointment in the civil service from that date, placing him above the respondents Nos.2 to

137. In the meantime, by gazette notification No.9/4/81‑C.III(B) dated 12th January, 1987 (Annexure 'A'), the date of induction of the appellant was notified as.26‑2‑

81. His representation was rejected vide Office demo. No.8/8/86‑OMG‑I, dated 26th March, 1987 (Annex‑AA). The appellant's prayer in the original appeal is that the impugned order (Annexure 'A') may be set aside and he may be assigned seniority in accordance with the rules framed in 1980‑81 i.e. from the date on which he started officiating against the post of Section Officer (BPS‑18). His prayer in the amended memo. of appeal is that the impugned orders (Annexure A & AA) may be set aside and the date of his induction and the seniority assigned to him be changed strictly in accordance with the rules framed in 1980‑81 i.e. the date on which he assumed the charge of the civil post of Section Officer (B‑18) with all back benefits, particularly consideration for promotion in accordance with the rules.

3. The appeal has been res1st ed by the respondent Government. It has been stated in the written objections that the President was pleased to approve induction of the appellant as Section Officer in grade 18 vide order on Summary dated 5‑6‑1979; but since the Federal Public Service Commission Ordinance 1977, Federal Public Service Commission (Functions) Rules, 1978 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 did not provide for appointment of Army Officers to the civil posts by the President without reference to the Federal Public Service Commission, the President was pleased to approve appointment of the appellant and some other Army Officers on contract basis for a period of two years, and the appellant was appointed accordingly on contract basis with effect from 31‑10‑1979 on the terms and conditions of contract accepted by him. It is further stated that the induction policy for appointment of Army, Officers to civil posts was issued on 10‑2‑1980 and the Federal Public Service Commission (Functions) Rules, 1978 were amended on 11‑6‑1982 as to provide for appointment of Army Officers to equivalent civil posts and the Federal Public Service Commission Ordinance, 1977 was amended on 1‑10‑1980 as to take out the appointments of the Army Officers to the civil posts out of the purview of the Federal Public Service Commission and the President was pleased to accord approval to the induction into civil service of the Army Officers who were appointed on contract basis, and, accordingly, the appellant was notified to have been permanently inducted as Section Officer with effect from 31‑10‑1979. It is further stated that the name of the appellant was mentioned at S.No.330 of the seniority list circulated on 16‑11‑1980 showing his date of appointment to grade 18 as 31‑10‑1979. It is also stated that the respondent Mr. Nazir Ahmad, who was allowed BPS‑18 with effect from i3‑10‑1980 made representation against the fixation of seniority of inducted Army Officers and it was noticed on considering his representation that the notification dated 3‑6‑1981 in respect of induction of the appellant and some other Army Officers as Section Officers was not in accordance with the decision of the competent authority, nor could such induction order be issued as to retrospectively change the contractual service of the inductees into regular appointment and, therefore, the notification dated 1‑6‑1981 was revised by notification dated 12‑9‑1987, whereby the date of induction of the appellant was shown as 26‑2‑1981. Certain legal pleas also have been raised that the appeal is barred by limitation as regards the question of seniority arising out from the seniority list issued on 16‑11‑1981; and that it is premature on the basis of representation dated 18‑11‑1986 against notification dated 12‑1‑1987, and it is also barred by proviso (a) to subsection (1) of Section 4 of the Service Tribunals Act, 1973. It has also been contended that the appeal is bad for non-joinder of necessary parties. From amongst the respondents Nos.2 to 137, the respondents No.4 (Riaz‑ur‑Rehman), No.5 (Bashir Ahmad Chauhan), No.95 (Muhammad Hussain Shah), No.57 (Hashmat Ali), No‑126 (Nazir Ahmed) and No.134 (Fazal Karim) have filed written objections, contending that the appellant could not claim seniority over and above them. The rest of the respondents seem to have preferred to remain ex parte.

4. The learned counsel for the appellant has contended that the notification dated 3‑6‑1981, whereunder the date of induction of the appellant into the civil service was mentioned as 31‑10‑1979, was issued under the orders of the President and it remained operative till 12‑1‑1987 and the seniority of the appellant was fixed accordingly and substantive rights had so accrued to the appellant and the said notification dated 3‑6‑1981 could not be revised by notification dated 12‑1‑1987. Reliance has been placed on the cases reported in 1984 PLC (C.S.) 402; 1988 P L C (C.S.) 99; 1983 P L C (C.S.) 995; and 1985 P L C (C.S,)

753. It has further been contended that the revised seniority l1st could not be issued without the orders of the President and reference has been made to the cases reported in PLD 1969 S.C. 407; 1984 P L C (C.S.) 64; and 1985 P L C (C.S.)

133. Reference has also been made to the judgments of this Tribunal in Appeal No.76 (R)/83 (Bahadur Shah's case) and Appeal No.89 (R)/83 (Walayat Hussain Raja's case), and a case reported in 1983‑ P L C (C.S.)

995. It has also been contended that the seniority l1st is said to have been revised on representation made by the respondent, Mr. Nazir Ahmad, but the appellant had no notice thereof.

5. The appellant was a Major in the Armed Forces. After his, retirement from the service there, he was re‑employed as Section Officer in the Health and Social Welfare Division (Office Management Group) for a period of two years on the terms and conditions laid down in the Establishment Division's letter No.14/4/78-S.III(A), dated 11th October, 1979. Following notification dated 3rd June, 1981, bearing No.9/4/81‑C.III(B) was issued by the Establishment Division as regards' the permanent induction of the appellant in the Office Management Group:‑ "Having been approved by the competent authority for permanent induction, Major (Retd) Ahmad Hussain Sheikh stands inducted in the Office Management Group w.e.f. (F.N.) 31st October, 1979. "' Some other retired officers of the Armed Forces were also permanently inducted in the Office Management Group from different dates in the year 1979 vide Establishment Division's notification No.9/4/81‑C.III (B), dated 26th May, 1981. Both the notifications were cancelled by the Establishment Division's notification No.9/4/81 C.III(B), dated 12th January, 1987 and revised dates of their permanent induction as Section Officers in the Office Management Group in B‑18 were notified therein. The date of induction of the appellant herein was mentioned as 26th February, 1981. The appellant has called in question, in this appeal, the notification of 12th January, 1987.

6. Induction/re‑employment of the retired Armed Forces Officers in the Civil Service of Pakistan is regulated by the instructions contained in Office Memorandum No.14/5/78‑D. III, dated 10th February, 1980, the relevant paragraphs whereof are reproduced below: OFFICE MEMORANDUM Subject: INDUCTION/RE‑EMPLOYMENT OF OFFICERS OF ARMEDFORCES OF PAKISTAN IN CIVIL POSTS: The undersigned is directed to state that the question of institutionalising the induction and re‑employment of officers of the Armed Forces of Pakistan in civil posts has been under consideration for some time past. The President has now been pleased to decide that induction of officers of the Armed Forces of Pakistan and their re‑employment, as the case may be, shall be regulated by the following instructions:‑ PART I

2. Induction of young officers of Armed Forces of Pakistan upto 8 years commissioned service in civil posts shall be made in accordance with Part II.

3. Induction of officers of the rank of Major or equivalent who may retire or may have retired on completion of the prescribed age or service limit shall be made in accordance with Part III

4. Re‑employment of officers of the rank of Major or equivalent who may retire or may have retired before completion of the prescribed age or service limit and of retired officers of the rank of Lieutenant Colonel and above and equivalent shall be made in accordance with Part IV. PART II xx xx xx xx xx xx xx xx xx xx xx xx xx xx PART III

12. The officers of the rank of Major and equivalent who may retire or may have retired on completion of the prescribed age or service limit will be eligible for induction in grade 18 on regular basis upto 10$ of the annual vacancies in the various groups and cadres in that grade, as may be specified.

13. Induction will be made through the High Powered Selection Board in accordance with the procedure laid down in para 6.

14. In selecting officers for induction, provincial quotas will be kept in view.

15. The inducted officers will count seniority in the grade in which they are inducted from the date of their induction.

16. The pay of inducted officers will be fixed in the civil grade on the basis of their pay of the substantive rank or temporary rank, if held for one year.

17. The inducted officers will continue to draw their military pension but it shall be deducted from the civil pay. In addition to the military pension, the officers will be entitled to a civil pension on their retirement from civil employment if they have completed the prescribed qualifying service (i.e. 10 years of minimum service). They will be entitled to receive gratuity if they have rendered more than 5 years and less than 10 years of service in the civil post. PART IV

18. Officers of the rank of Major/ equivalent who retire or may have retired before completion of the prescribed age or service limit and officers of the rank of Leiutenant Colonel and above and equivalent .who may retire or may have retired either after completion of prescribed service or age limit or before such completion will be eligible for re‑employment on contract for 3 to 5 years, renewable upto the age of 60, upto the maximum of 10% of annual vacancies in various groups and cadres, as may be specified, on the terms and conditions mentioned hereinafter.

19. Re‑employment will be made in grades equivalent to their substantive rank, or temporary rank, if held for one year, in accordance with the Army rank‑civil grade equivalence formula already approved by the President. However the officers will be eligible for being considered for a subsequent contract in higher grade.

20. Re‑employment on contract basis will be made through the High Powered Selection Board which will also determine the group or cadre in which re‑employment is to be made. The procedure for selection will be the same as prescribed in para 6.

21. In selecting officers for re‑employment provincial quotas will be kept in view.

22. Re‑employment on contract in various grades shall be made by the authorities competent to make appointment to these grades in accordance with rule 6 of the Civil Servants (Appointment Promotion and Transfer) Rules, 1973.

23. The re‑employed officers will be eligible for such training as is given to their civilian counterparts.

24. Re‑employed officers will not have any" seniority and will not be placed on the regular gradation list. 25. to 27. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

28. In case no orders are received by the date on which contractual period is due to expire, the contract shall be deemed to have been extended until further orders. 29. to 35. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

36. The existing officers of the category mentioned in this part who have already been appointed on contract in civil posts shall be eligible to elect terms and conditions specified in this part. They shall be required to give their option either to elect their existing conditions of appointment or to elect the terms and conditions laid down in this part for the remaining period of their contract. The option shall be given within two months of the date of issue of this O.M. They will be brought effect from 23rd December, 1979, the date on which the President was pleased to approve the scheme. Those who fail to submit their option by the prescribed date shall be deemed to have elected their existing terms and conditions. Option shall be final. PART V

37. Any major difficulties in implementing these decisions will be resolved by reference to a Committee comprising Establishment Secretary, Finance Secretary and Law Secretary. The reference will be made through the Establishment Division who will initially examine it and in case they are unable to remove the difficulty, the matter will be placed before i pie Committee.

38. This Office Memorandum issued with the concurrence of the Ministry of Finance.

7. Part III of the Office Memo. dated 10‑2‑1980, reproduced above, was partially modified by O.M. No.l/19/80‑I.C.I., dated 4th December, 1980 as under: (Reference‑SI.No.110 ESTACODE, 1983 edition, page 115): "SL.No.110‑ In partial modification of Part III of the Estt. Division's O.M. No.14/5/78‑D.III, dated 10th February, 1980 on the above subject, it has been decided that: (a) The officers of the rank of Major and equivalent, who may retire or may have retired on completion of the prescribed age or service limit, will be eligible only for induction in grade 18 on regular basis in civil posts under the Federal Government and Provincial Governments upto 10% of the annual vacancies in the various groups/cadres, as may be specified. (b) The officers of the rank of Major and equivalent who may retire, or may have retired on completion of the prescribed age or service limit will be eligible also for induction on regular basis as well as re‑employment on contract in grade‑18 or equivalent posts in corporations and autonomous/semi-autonomous bodies under the Federal and Provincial Governments upto 10% of the annual vacancies. Both the regular induction and re‑employment on contract will be made on recommendations of the High Powered Selection Board. (c) If selected for appointment to posts in corporations or autonomous/semi‑autonomous bodies, the officers will be asked to exercise an option whether they want to be re‑employed on contract or permanently inducted on regular basis upto the age of superannuation. Option once exercised shall be final. (d) Such officers as are re‑employed on contract will be governed by the terms and conditions mentioned in Part IV of the Establishment Division O.M. referred to above. (Authority. ‑O.M.No.1/19/80‑IC‑I, dated the 4th December, 1980)."

8. The appellant seeks determination of his seniority under paragraph 15 of the O. M. dated 10‑2‑1980 which provides that the inducted officers would count seniority in the grade in which they are inducted from the date of their induction. This paragraph forms a part of Part III of the said Office Memo. The O. M., reproduced above, places the beneficiary officers of Armed Forces in three categories as classified in paragraphs 2,3 &

4. The officers mentioned in paragraphs 2 and 3 are eligible for induction in the civil post, while the officers mentioned in paragraph 4, are eligible for re‑employment in civil posts. The appellant is an officer of the rank of a major having retired from service. He does not come in the category of the officers mentioned in paragraph

2. It is to be determined whether his case falls under the purview of paragraph 3 or paragraph

4. He has not disclosed whether he had retired on completion of the prescribed age or service limit or he had retired before completion of the prescribed age or service limit. He has also not disclosed in what manner he entered the civil service and he has straight‑away based his case on gazettee notification No.9/4/81‑C.III (B), dated 3 June, 1981, whereunder it was notified that the appellant stood inducted in the O.M.G. w.e.f. (FN) of 31‑10‑1979. Somehow or the other, a photostat copy of the letter of appointment of the appellant dated 11‑10‑1979. has come on record. Its operative part reads as under: No. 140) /78‑C. III(A) Cabinet Secretariat Establishment Division Government of Pakistan Rawalpindi Dated, the 11th October, 1979. To To Major (Retd.) Ahmad Hussain Sheikh, C/o MS Branch, (GHQ), Rawalpindi. Sir, Sir, I am directed to convey the sanction of the President to your re‑employment as Section Officer in the Health and Social Welfare Division for a period of two years with effect from the date you will assume charge of the post of Section Officer on the following terms: xx xx xx xx xx. xx xx xx xx xx It is obvious from the appellant's initial appointment order that hi; entry into the civil service was by way of re‑employment on contract and his case would in that situation fall under Part IV of the O.M, dated 10‑2‑1980 and the provisions contained therein would regulate his employment. Of course, the appellant's initial appointment was made earlier than issuance of the O.M. dated 10‑2‑1980, but such an eventuality has been taken care of under paragraph 36 of the O.M. reproduced above. The appellant's case as regards seniority would therefore, be regulated by paragraph 24 which lays down that re‑employed officers will not have any seniority and will not be placed on the regular gradation list. The provisions of seniority contained in paragraph 15 would not in that case be available to them but there is another aspect of the case. Assuming that the appellant had retired from the rank of Major on having completed the prescribed age or the service limit, his case fell under Part III of the Office Memo dated 10‑2‑1980, reproduced above, and he was eligible for induction in grade 18 in 'the civil service on regular basis and the provisions of seniority contained in paragraph 15 thereof could be pressed in aid in his favour. It appears from the record made available by the Establishment Division that appointment of Army Forces officers into civil service started after promulgation of Martial Law on 5th July, 1977, by way of permanent induction or secondment or on contract. However, there were certain limitations on such appointments by virtue of Federal Public Service Commission Ordinance, 1977 (hereinafter referred to as the Ordinance), promulgated on 17th December, 1977, and the Federal Public Service Commission (Functions) Rules, 1978 (hereinafter referred to as the Rules), framed thereunder. The Rules were amended on 25th June, 1980 and the Ordinance was amended on 1st October, 1980 and the hurdle in the way of induction or re‑employment of Armed Forces Officers into civil service stood removed. The instructions contained in the J.M. dated 10‑2‑1980 (reproduced above), to regulate induction/re‑employment of the officers of the Armed Forces were issued. In June, 1979, the President‑had approved appointment of 9 serving officers and 18 retired officers of the Armed Forces as Section Officers in the Office Management Group on the recommendation of the Defence Service Officers Selection Board but before the orders were implemented, it was observed that the appointments so approved would be hit by the provisions of the Federal Public Service Commission Ordinance and the Rules, and the President was pleased to approve, on 29‑9‑1979, appointment of 9 serving officers as Section Officers on secondment and that of 18 retired Army Officers on re‑employment on contract basis for a period of two years. The appellant was one of those 18 retired Army officers. He was, accordingly, appointed by appointment letter dated 11‑10‑1979, reproduced above. After amendment in the Ordinance and the Rules, further orders of the President were sought for permanent induction into civil service of the officers inducted/re‑appointed on contract in the earlier order dated 29‑9‑1979 on a Summary submitted on 20‑12‑1980. The President was pleased to accord his approval on 1‑2‑1981. Consequently, necessary orders for permanent induction of those officers were issued. The order for permanent induction of the appellant into civil service was issued on 26‑2‑1981 and the date of his induction mentioned therein was 31‑10‑1979.The date of his induction was challenged by the respondent, Mr. Nazir Ahmad, mainly on the ground that the order of induction passed in February 1980 could not be given retrospective effect to change the contractual' appointment into appointment by induction. Mr. Nazir Ahmad's representation was accepted and the date of induction of the appellant was revised from 31‑10‑1979 to that 26‑2‑1981 and the impugned revised notification dated 12th January 1987 was issued. There was no specific order of the President that the appellant was to stand inducted in the civil service with effect from 31‑10‑1979, but there was only approval for appellant's induction in the civil service in accordance with the rules. Of course, the order of induction of the appellant with effect from 31‑10‑1979 was issued on 3‑6‑1981 but it was not an irreversible order so far as the date of his induction in the civil service was concerned. At the most, the rule of locus poenitentiae enunciated in the cases relied upon by the learned counsel for the appellant would be attracted to the extent that the induction of the appellant into the civil service having been effected and acted upon could not be dislodged and that was not done. The question is of, the date from which the induction of the appellant into civil service had become operative since he was already in employment although on contract basis. As mentioned above, the President had given approval to induction in civil service of certain officers of the Armed Forces and the appointments were to be regulated in accordance with the policy laid down for such appointments, as aforesaid, and other standing orders/rules. The President had given approval to the induction of certain officers of the Armed Forces including the appellant on 1‑2‑1981, and that date would be the relevant date for the regular induction in service of the officers of the Armed Forces who were already in service on contract basis, if qualified otherwise, and the approval of the President did not have express retrospective operation. The claim of the appellant that he was deemed to have been inducted into the civil service on 31‑10‑1979 when he had joined the service on contract basis is untenable.

9. The date of induction of the appellant into the civil service as 26‑2‑1981, mentioned in the notification dated 12th January 1987 also is not correct in the circumstances that the appellant was already serving in the civil service although on contract basis and the President's order of approval of the induction of the officers of the Armed Forces into the civil service became operative in the cases of already serving officers from the date it was accorded. The cases relied upon by the learned counsel for the appellant in support of his contention that the date of the induction of the appellant could not be revised by any authority other than the President himself are not attracted, particularly in the circumstances that the President had not specified the date of the induction of the appellant and other officers of his class.

10. There is an objection by respondents Nazir Ahmad (S.No.126) and Fazal Karim (S.No.134) that the appellant could not be inducted in the Office Management Group in the light of the decision of the Government contained in O.M. No.l/22/80‑Imp. Cell, dated 29‑11‑

80. Their objection does get support from the aforesaid notification which is published at S.No. 109, at page 114 of the ESTACODE, 1983 edition. However, this issue cannot be resolved in this appeal filed by the appellant, and it could be agitated in any independent proceedings.

11. As regards the legal objection of limitation and maintainability of the appeal, the question of limitation does not arise as the appellant has assailed the orders dated12‑1‑1987 (Annexure A) and the other dated 26‑3‑1987 (Annexure AA), and the appeal was filed on 1‑2‑1987. The appeal is, of course, hit by the provision of subsection (1) of Section 4 of the Service Tribunals Act, 1973, as it was preferred without filing of the departmental representation/appeal. No doubt, attempt was made to escape this lacuna by placing on record an amended memo. of appeal on the basis of the appellate order dated 26‑3‑1987 without permission of the Tribunal, but the appeal was initially filed at the stage when it could not be filed and subsequent development does not save the appeal from the legal lacuna it suffered from at the time it was filed.

12. For the reasons recorded above, the appeal is liable to be dismissed and is accordingly dismissed with no order as to costs.

13. Before parting with the appeal, it may be observed that the Establishment Division may consider desirability of amending its notification dated 12‑1‑1987 so as to indicate the date of induction of the appellant as 1‑2‑1981 when the President was pleased to accord his approval to the induction of the appellant and some other Army officers into civil service. S.Q./405/Sr.T Appeal dismissed.