2006 PLP 832 (SCMR)

KARAMAT NAZIR BHANDARI, J.

By a short order dictated in open Court today, we refused leave and dismissed Civil Petitions Nos.1153, 1154, 1460, 1496, 1498, 1501, 1532 to 1534, 1571 to 1578 and 1742 of 2004. The following are the reasons for the short order.

2. Relevant facts of these petitions are that petitioners were initially serving in various Departments/Divisions as a result of their selection by Federal Public Service Commission (hereinafter referred to as FPSC). Around the years 1988-89, they were appointed as Section Officers by transfer on deputation where they remained as such until their appointments as Section Officers in the Office Management Group (hereinafter referred to as O.M.G.) in their own pay and scales with immediate effect, vide notification No.6/6/ 1.997-OMG-II, dated 17-11-1999 (page 95 of the paper book of C.P. 1153 of 2004). The petitioners filed representations within the department claiming that their induction into O.M.G. should be deemed to have taken effect from the initial respective dates of deputation, approximately from the year 1989 and their seniority be determined accordingly. The representation made by the petitioner Hamidul Hussain is at page 76 of the paper book. Seemingly getting no response and after the lapse of prescribed time the petitioners filed appeals in the Federal Service Tribunal, Islamabad which appeals were initially accepted on 9-2-2001. This order, however, was set aside by this Court on appeal and the cases were remanded to the Tribunal with a direction "to take fresh decision after hearing the selectees deputationist/transferees in accordance with law". After remand, the appeals were reheard in presence of all the interested parties and dismissed vide judgment, dated 24-4-2004 against which decision the petitioners seek leave to appeal from this Court through these petitions.

3. In support of these petitions Mr. Muhammad Akram Shaikh, learned Senior Advocate Supreme Court has contended that the Tribunal has wrongly applied Rule 4 of the Civil Servants (Seniority) Rules, 1993 (enforced on 28-2-1993) (hereinafter referred to as Seniority Rules, 1993) since the case of the petitioners was required to be decided under the earlier dispensation. According to him applying Seniority Rules, 1993 to the cases of the petitioners would amount to giving retrospective effect to the Rules which is not permissible and this principle has been so declared by this Court in judgments referred to by him. he has further vehemently urged that the petitioners' case ought to have been decided in accordance with the decision taken by the Prime Minister on the summary sent by the Establishment Division, copy of which appears at pages 99-104 of the paper book. The decision seems to be in the handwriting of the Principal Secretary to the Prime Minister and appears at page 99-104 of the paper book. As the petitioners primarily base their case on this decision, the same is reproduced for the sake of convenience:-- "The prime Minister has been pleased to approve the proposals in paragraphs 2 and 3 above subject to the modification that the quota for induction by transfer may be raised from 10% to 20% and that for direct recruitment be reduced from 60% to 50%. The quota for promotion should remain 30%."

4. He submits that even though the decision of the Prime Minister has not been formally notified by issuing the office memorandum or otherwise, the decision became applicable and respondents officials were bound to implement the same. In this context he also urged that the petitioners on their own could not have approached the F.P.S.C. for examining them and it was for the respondents-officials to send requisition to the F.P.S.C. He has emphasized that the petitioners cannot be allowed to suffer for inaction of the respondents-officials. He has also argued that as against the maximum period of deputation of 5 years laid down in various paragraphs of the ESTACODE, the petitioners have served on deputation for about a decade or so and they are not in a position to go back to their parent departments. He has elaborated that the case of the petitioners is that of gross injustice. Reliance has been placed on Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771; Mrs. Fakhera T. Abbasi, S.O. Finance Division, Islamabad and 2 others v. The Secretary, Establishment Division, Islamabad and 63 others 1998 SCMR 432; Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185; Muhammad Zafar Khan v. Secretary, Establishment Division, Islamabad and 155 others 1995 SCMR 1840 to urge that the point involved already stands settled in these judgments. He has finally urged that some of the Section Officers similarly placed were induced into O.M.G. in the years 1989/90 (numbering about 7) and no reason has been shown as to why the petitioners have been denied this treatment. According to him this discrimination is forbidden by Article 25 of the Constitution.

5. Mr. Nasir Saeed Shaikh, learned D.A.G. in defence of the petitions has replied that the whole scenario changed with the enforcement of Seniority Rules, 1993 with effect from 28-2-1993. Rule 4 lays down that the seniority in such a situation shall be reckoned from the date of absorption/regular appointment and not from the date of initial deputation. He has objected, to reliance/reference to the summary submitted to the Prime Minister and decision taken thereon on the ground that the said summary is a secret document and petitioner cannot lawfully refer to the same. In any case according to him the approval by the Prime Minister of the proposal mentioned in paras.2 and 3 of the summary with the modification contained in the order cannot improve the case of the petitioners since candidates laid down in paras.2 and 3 were still required to be fulfilled and it is wrong to assume that Prime Minister ordered automatic induction of the petitioners. He has explained that the matter was required to be processed in terms of paras.2-3 whereafter the F.P.S.C. was required to examine the candidates for absorption in the O.M.G. He has explained that while this process was underway Seniority Rules of 1993 came into field and stalled that exercise. He has further contended that the case of the petitioners is governed by Seniority Rules, 1993 and it is wrong, to contend that decision by these rules will amount to retrospective application of Rules. He has fortified this argument by referring to Rule 7 of the Seniority Rules, 1993 which repeals all the previous instructions, office memorandums and orders on the subject. He has further argued that the cases relied upon by Mr. Akram Shaikh, are distinguishable and these were decided in accordance with the legal dispensation prevailing before the enforcement of Seniority Rules, 1993. He has replied to the argument of discrimination by pointing out that 4 of the persons appointed as Section Officers in the year 1989 were so appointed because their parent departments were being wound up and their cases stood on a different footing.

6. Mr. Aitzaz Ahsan, learned Advocate Supreme Court appearing for some of the private respondents has by and large adopter' the line of arguments of the learned D.A.G. He has submitted that petitioners in fact have been seeking seniority and absorption/induction in O.M.G. is altogether a different claim. According to him the petitioners by failing to agitate for induction/absorption, after completion of the terms of deputation, accepted the state of affairs in which they found themselves. He explained that from 1992 to 1999 they did not protest or lodge a claim for absorption/induction otherwise than in accordance with Rule 4 of the Seniority Rules, 1993. He has drawn our attention to the consent given by Mr. Hamidul Hussain, petitioner which is unconditional in which he clearly states that '"I hereby give my consent for induction in the Office Management Group in terms of para.4 of Civil Servants (Seniority) Rules, 1993 with reference to the Establishment Division's O.M. No.6/697-OMG-II, dated 14-4-1999". He has argued that the consent given by the petitioners in 1992, became redundant in view of promulgation of Seniority Rules, 1993. He has also urged that most of the private respondents, if not all, have been appointed as Section Officers in a transparent manner after clearance by the F.P.S.C. He has relied on the case of Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185, to draw support for the proposition that it is the Seniority Rules, 1993, which will govern the cases in hand. He has also referred to Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 and Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771 to show that once an unconditional consent has been given the civil servant cannot go behind it. He has further explained that application of the Seniority Rules, 1993 to the cases of the petitioners will not amount to giving retrospective effect to the same as these rules came into force while the cases of the petitioners were yet to be finalized as per the previous legal dispensation.

7. Let us first examine the position as if Seniority Rules, 1993 were not in the field. The petitioners completed their 3 years tenure as deputationist in May/June, 1992. This period could have been extended by a further period of 2 years at the most although nothing has been placed on record to show that this was done. It is also reasonably established that the petitioners never protested against the induction of some of the deputationists in the O.M.G. way back in 1989. There is nothing on record to show that the petitioners ever urged their claim during the period 1992 to 1999. In fact they seem to have given unconditional consent for induction in the O.M.G. in terms of Rule 4 of the Seniority Rules, 1993. We find force in the submission of Mr. Aitzaz Ahsan that the petitioners' silence/inaction for 7/8 years has disentitled them to claim induction/absorption either with effect from 1992 when they completed 3 years period as deputationist or from the year 1989 the date of initial deputation.

8. However, the Seniority Rules, 1993 cannot be overlooked. They were enforced with effect from 28-2-1993 when the case of the petitioners had not been finalized in terms of the decision dated 19-11-1992 of the Prime Minister on the summary initiated by the Establishment Division, on which much emphasis has been placed by Mr. Akram. Whether inaction on the Prime Minister's decision was motivated and deliberate as claimed by Mr. Akram Shaikh or it was not immediately acted upon for good reasons as asserted by the learned D.A.-G., fact remains that the Seniority Rules, 1993, came into force and changed the entire scenario. These had to be applied to the case of the petitioners and we repel the contention that its application would amount to enforcing them retrospectively. Rule 4 of the Seniority Rules, 1993 is relevant and is reproduced: "Seniority on appointment by transfer.

Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post: Provided that (a) persons belonging to the same service, cadre or posts selected for appointment by transfer to a service cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and (b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior." Rule 7 is relevant to the situation inasmuch as it repeals the General Principles of seniority circulated vide Establishment Divisions O.M.No.1/16/69-D.II, dated the 31st December, 1970 and all other existing rules, orders and instructions relating to seniority. There are 3 exceptions to this repeal, none of which is relevant to the present situation.

9. Rule 4 in so many words lays down that seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre, or post. Undisputedly the petitioners were appointed on regular basis vide notification dated 17-11-1999 and they are not correct in claiming their seniority from any earlier date on the ground that they ought to have been absorbed or inducted into O.M.G. in the year 1992 or before that. The fact is that their induction did not take place earlier and the further fact is that until 2000 the petitioners did not agitate against the inaction to absorb them in O.M.G. Besides and further, the petitioners cannot be permitted to wriggle out of unconditional consent given in 1999, for seeking induction in accordance with Rule 4 of the Seniority Rules, 1993. Mr. Aitzaz is correct in saying that earlier consent given in 1992 was relevant to the exercise being undertaken as per the previous legal dispensation and since the exercise did not fructify, the consent of 1992 became irrelevant.

10. The argument of discrimination again does not help the petitioners. The alleged discrimination took place way back in 1989 and no grievance was made on this account by the petitioners until 1999/2000. Clearly this argument cannot be accepted after the lapse of about a decade. Besides at least 4 of the deputationists were regularized/ inducted into O.M.G. for sufficient reasons viz. abolition of their parent departments. Their case is clearly distinguishable.

11. The argument of gross injustice having been done to the petitioners is again difficult to accept because of the conduct/inaction of the petitioners for years, which amounts to acquiescence. If the petitioners have suffered injustice they themselves have to take the responsibility, at least partially if not wholly. Mr. Aitzaz Ahsan may be right in explaining that the petitioners' inaction was deliberate inasmuch as they wanted to remain in the Secretariat at all cost and under any terms as the stay in the Secretariat is advantageous. We need not evaluate this argument, further as it has no bearing to the outcome of the petitions. Even in case of gross injustice, law cannot be thrown overboard.

12. For the above reasons leave in these cases is refused and these petitions are dismissed. S.A.K./H-5/SC??????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.