P L D 1988 Supreme Court 131 (PLP)

SHAFIUR RAHMAN, J.‑‑ Three appeals under Article 212 (3) of the constitution arising out of two separate judgments, somewhat inconsistent, of the Federal Service Tribunal have come up by leave of the Court for examining the following questions of law arising therein: ‑‑ (i) Whether the appeal arising from the provisional seniority list which had been circulated only for inviting objections was competent, no remedy having been taken against the final list though an appeal under rule 4 of the Civil Servants (Appeal) Rules, 1977, could lie in the Department against it. (ii) Whether the bar as to vested right in section 8 (1) of the Civil Servants Act affected the jurisdiction of the Tribunal to entertain the appeal. (iii)Whether the Tribunal could declare O.M. dated 27‑1‑1975 to be ultra vires of section 8 of the Civil Servants Act and C.S.S. (Class I) Rules, 1965. (iv) Whether the said O.M. is in fact in conflict with the Act and the Rules. (v) Whether the appointment of officers under, para 4 of O.M. of 1975 could be made being in excess of the departmental quota of 80:20 prescribed by 1965 Rules. (vi) Whether the O.M. of 75 and the General Principles of Seniority of 1970 (from pages 148 to 155 of the ESTACODE) are saved by section 25 of the Civil Servants Act and as such there is no conflict when read with section 8 (3) of the Act. (vii) Whether the appointments under para 6 of O.M. of 1975 were not subject to any quota. (viii) Where a separate notification. was necessary for those whose appointments were covered by para 6 of the O.M. of 1975. (ix) Whether the provision of para 7 of O.M of 1975 was prospective and not governing the cases of ad hoc Section Officers. (x) Was the Tribunal justified in awarding benefit even to those who had not been made a party in the appeal? The seniority list of the Section Officers as per rules, 50$ in Grade‑18 and 50$ in Grade‑17 was circulated on 18‑9‑1979. It was stated to be provisional. Fazal‑i‑Qadir, appellant in Civil Appeal No.824 of 1984 felt aggrieved by the seniority allocated to him at S.No.430, he being a direct recruit of the XV batch of direct recruits who were inducted into Grade‑17 on 20‑2‑1976. He filed a representation against this list which was rejected. He thereupon filed an appeal before the Service Tribunal claiming a higher seniority. Walayat Hussain Raja, appellant in Civil Appeal No.399 of 1986 felt aggrieved by the seniority list which was finalised on 16‑11‑1981. He' himself was a direct recruit in Grade‑17 and had taken over on 21‑3‑1977. As no reply was forthcoming to his representation, he approached the Service Tribunal against his being allocated seniority at serial No.611 of the service seniority list and at S.No.208 of the seniority list of officers in Grade‑

17. His grievances with regard to seniority were mainly directed against three principles which had been given effect to and were prejudicial to his interest. The first of these was that the promotees on their regular appointment to any of these grades were to have precedence over the direct recruits the same year. The second was that, as claimed by this appellant, seniority had been allowed to those promotees also who were in excess of their quota. Thirdly, there were certain inductions into Grade‑18 from the army and according to the appellant they could not be given seniority there being no provision for such induction. In the appeal filed by Fazal‑i‑Qadir, appellant in Civil Appeal No.824 of 1984 and respondent No.l in Civil Appeal No.825 of 1984 filed by the Federation of Pakistan, and another appeal filed by the contesting respondents and the appeal filed by Fazal‑i‑Qadir before the Tribunal the judgment of the Service Tribunal under attack is the same, that is, of the 19th of October, 1983. On merits while adjudicating on the claim of Fazal‑i‑Qadir with regard to seniority the Service Tribunal held as follows:‑‑ (i) The Office Memorandum (Serial No.11 page 747 ESTACODE 1983) dated 27‑1‑1975 was held to be of no legal effect as it lacked approval of the competent authority and also was ultra vires section 8 (4) of the Civil Servants Act. (ii) The Central Secretariat Service (Class I Rules 1965) (ESTACODE 1983 Edition p.749) continued to govern the parties in so far as these are not inconsistent with the Civil Servants Act. (iii) Rule of seniority contained in Rule 13 (4) of 1965 Rules was inconsistent with section 8 (4) of the Civil Servants Act and was of no effect. (iv) The governing rule of inter se seniority between the direct recruits and the promotees was one of the date of regular appointment and none else. (v) The quota for the promotees was exhausted in making appointments and those in excess could not at all claim seniority. On these findings, the appellant before the Service Tribunal namely Fazal‑i‑Qadir was allowed seniority over all the officers from Serial No.263 on the merit list and just below No.262. In the service appeal of Walayat Husain Raja, a full Bench of the Service Tribunal by its judgment dated 1‑7‑1985 held as follows‑‑ (i) The provision that promotee officers as a class shall stand senior the direct recruits of the same year was not inconsistent with section 8 of the Civil Servants Act. This finding was recorded on the reasoning which appears hereunder‑‑ "The appellant also contended that the provisions made in the aforesaid Memo that the promotee officers, as a class, shall stand senior to the direct recruits is not consistent with section 8 of the Civil Servants Act (LXXI of 1973), and, as such, has to be ignored. In this respect, he relied on the decision of a Divisional Bench of this Tribunal made in Appeal No.40(R) of 1981 Fazal‑i‑Qadir v . Secretary Establishment Division and 251 others. Since there was a difference of opinion in the Tribunal on the specific issue, the present case was heard by the Full Bench. The law on the point is now settled in the case of Federation of Pakistan v . Asam Ali and others (1985 SCMR 386), wherein the Supreme Court has held that the General Principles of Seniority which provide for placing the promotee officers of a year over the direct recruits of that year is not inconsistent with the provisions of section 8(4) of the Civil Servants Act (LXXI of 1973). It is pertinent to note that the Supreme Court, while granting leave to appeal in the case of Fazal‑i‑Qadir had suspended the operation of the Tribunal's order." (ii) The quota fixed under the rules was not exhausted in the case of the promotees. This finding was arrived at on the following reasoning‑‑ 'The appellant's stand that these persons were in excess of their quota also does not appear to be correct. The departmental representative and the learned counsel for State have explained to our satisfaction from the record that after the initial formation of the Office Management Group, under paras. 4 and 6 of the aforesaid Memo., there were 344 vacancies left‑over for being filled. In accordance with para 7 of the aforesaid Memo, 2/3rd vacancies were to be given to the direct recruits, while 1/3rd to the promotees. Applying this provision, the department promoted 114 persons from the Ministerial services and appointed 52 persons including the appellant by direct recruitment. Since there were 114 vacancies available for the promotee officers the appointments were made accordingly only 52 direct recruit were available in that year and they too were encadred accordingly.The appellant has not been able to show that the promotions were made in excess of the quota, while filling the left‑over 344 vacancies.' (iii) The right of Wallayat Hussain Raja, a Grade‑17 officer to challenge the induction of army officers in the higher Grade‑18 was not recognised. The learned Deputy Attorney‑General in the appeal preferred by the Federation of Pakistan, sought full protection for the Office Memorandum appearing as serial No.ll at page 747 (ESTACODE 1983) on the strength of what appears at page 723 ibid with regard to the formation of Occupational Groups with the approval of the President. According to the learned Deputy Attorney‑General, the formation of Office Management Group was in no way different from any other. It was competently constituted. He has also contended that no part c:' it is 'inconsistent with the provisions‑ of the Civil Servants Act. Actually, according to the learned Deputy Attorney‑General, the instructions derive their strength from the relevant provision of the Civil Servants Act. Similarly, it is contended that the seniority of Mr. Fazal‑i‑Qadir had been correctly fixed and his representation dealt with in accordance with law. Mr.Abid Hasan Minto, the learned counsel for the appellant, Fazal‑i‑Qadir, has contended that not only the promotees of the same year were not entitled to be placed above the direct recruits of the same year the quota allocation, namely, 80$ for the direct recruits and 20$ for the promotees had to be adhered to as provided in 1965 Rules and only those promoted or adjusted against their quota who can match seniority with the direct recruits all others awaiting adjustment against the quota could not be said to have been regularly appointed and for that reason could not at all be borne on the seniority list. On this reasoning, the learned counsel claims still higher seniority for Fazal‑i‑Qadir. Mr.Fazal Elahi Siddiqui, Advocate, the learned counsel for Wallayat Husain Raja, contended that the entire implementation of the Service Rules was taking place to the great prejudice of the direct recruits. At no time in the history of the service, the quota of the direct recruits reached even approximately the quota prescribed. The vacancies for direct recruits were kept unfilled for long and even when filled the direct recruits were given no advantage of the earlier date of vacancy or of the delay in recruiting them. This according to the learned counsel, became oppressive and inequitable so far as the direct recruits are concerned. In order to adjust their claim to their entitlement, it was necessary that their seniority should be ante‑dated to the date of vacancy or to the date of their taking up the examination and qualifying therein or in any case to the date when they took up the appointments on initial recruitment. He was critical of the principle whereby their seniority was further depressed as against promotees of the same year. He found no law, reason or logic to support such a state of affairs. Mr. Bashir Ahmed Ansari, Advocate, the learned counsel representing large number of officers whose seniority got unsettled on account of the judgment of the Service Tribunal in Fazal‑i‑Qadir's appeal sought protection and efficacy for the formation of Office Management Group on the conditions incorporated therein particularly by reference to Para 6 and amended Para 12 clause (b) sub‑clause (ii). The Service Tribunal has declared the Office Memorandum to be not competently framed on the ground that unlike a rule it was described as merely an Office Memorandum. Besides, according to the Tribunal, there was nothing on the record to show that it had been framed by a competent authority. This specific question of the competence of the authority framing or approving the Office Memorandum was neither the subject‑matter of representation by Mr.Fazal‑i‑Qadir nor was it specifically pleaded. The relevant, instructions appearing on page 723 of the ESTACODE and already referred to clearly indicate that as a process of Administrative Reform initiated and approved by the President, in sum and substance, number of Occupational Groups were formed all adhering to the same pattern, the difference wherever existing being capable of and explanation by reference to the groups that were clubbed together. for the formation of the Occupational Group. The contents of the Office Memorandum are general in character and contain all the necessary details for giving them the form and efficacy of a Service Rule. They appear in a printed volume of the Establishment Code A governing the terms and conditions and the discipline in service. Merely because they did not bear the appellation of Rules is not sufficient to reduce their legal status. There is abundant authority of decisions of this Court to treat such instructions as rules and fully capable of setting aside or modifying the rule. Besides, the Full Bench of the Service Tribunal has not found any such invalidity, in the Office Memorandum. As regards the contents of the Office Memorandum the Tribunal has somewhat been influenced by subsection (4) section 8 of the Civil Servants Act to the exclusion of the other provisions of the same section. A look at the whole of section 8 makes it clear that subsection (4) deals with the seniority of the promotees inter se. If that principle were to prevail over all others then subsections (2) and (3) become redundant. In fact, it is subsection (2) which governs the inter se seniority of direct recruits and the promotees and for that room has been left for the rule‑making authority to make provision. B As a Principle of General Policy by various Office Memoranda and at times by framing express rule, it has in almost all the cases provided) that promotees of the same year shall take precedence in the matter of seniority over those joining on initial recruitment in the same year irrespective of their date of promotion or joining. The rule on which the Service Tribunal has relied, namely, of 1965 also made a similar provision and it happens to be the past as well as the present practice incorporated in the rules to recognize such a deserved advantage for the promotees of the same year. There is no conflict with any statutory provision. On the other hand, this principle derives its strength and efficacy from subsection (2) of section 8 of the Civil Servants Act. On the question of fact as to whether the promotees had exhausted the departmental quota or not we are pct in a position to record a finding but would accept the one recorded by the Full Bench of the Service Tribunal that it was not exhausted. In view of our having examined the merits of the claim and the vires of the Office Memorandum, we come to the conclusion that the Office Memorandum, dated 27th of January, 1975 is not ultra vire section 8 of the Civil Servants Act, that it is not in conflict with the Act and the rules framed thereunder that there was no excess in the quota fixed for the promotees and that being consistent the Office Memorandum and general principles of seniority are saved under section 25 of the civil Servants Act. As a new Occupational Group was being constituted the quotas could be redetermined as under Para 6 of the Office Memorandum and the appointments take effect when competently made without waiting for the notification in the Gazette, the incumbent getting rights and obligations only on joining the post and not on mere notification. Para 7 of the Office Memorandum takes effect from 17‑1‑1975 controlling and governing neither the past recruitment nor the constitution of the Occupational Groups itself. In view of our decision on the merits of the case we do not intend examining at any length the preliminary objections taken before the Tribunal and noted in the Leave Granting Order with regard to the very competence of the Service Appeals before the Tribunal. The result of the above discussion and findings is that the appeals filed .by Fazal‑i‑Qadir (Civil Appeal No.824 of 1984) and by Walayat Hussain Raja (Civil Appeal No.399 of 1986) fail and are hereby dismissed. The other two appeals filed by Federation of Pakistan (Civil Appeal No.825 of 1984) and the other by Jamil Ahmad Karimi and others (Civil Appeal No.826 of 1984) are allowed and the judgment of the Service Tribunal dated the 19th of October, 1983 is set aside and the Service Appeal filed by Fazal‑i‑Qadir before the Tribunal stands dismissed. No order is made as to costs. M . B.A. /31/ F‑S Order accordingly