2001 PLP (C (PLC(CS))

NASIM SABIR SYED (MEMBER). ‑‑‑These fourteen Appeals bearing No. 100(L) of 1997 to 113 (L) of 1997 are of identical nature. It is proposed to dispose of all these appeals by this single order. The order is based on the facts of Appeal No. 100(L) of 199'7 filed by Muhammad Ashraf appellant.

2. The relevant facts are the appellants were appointed as Assistant Engineers (B‑16) on the recommendation of FPSC in 1974. Vide order, dated 3‑3‑1976, the appellants were granted B‑17 with effect from 30‑12‑1974. A seniority list was prepared in December, 1985 wherein the position assigned to the appellant at Serial No‑153 was claimed at the right place. No objection to this seniority list was raised in spite of the fact that the contesting private respondents were placed at the appropriate places i.e. junior to the appellants strictly in accordance with section 8 of Civil Servants Act, as such the seniority list of 1985 had attained finality in view a case cited as 1995 SCMR 1229.

2. However, in 1989, after a span of four years, private respondents filed appeal before the Federal Service Tribunal. The appellants submitted their written statement but vide order, dated 10‑5‑1990, the appeal was dismissed as having been withdrawn.

3. The appellant alongwith his colleagues earned B‑18 and B‑19 at appropriate times, but unfortunately, vide order, dated 19‑9‑1996 another seniority list was circulated whereby the appellants were relegated Aggrieved by this departmental appeal was filed but the same was rejected vide order, dated 2‑2‑1997 on merits‑ Consequently this appeal has been filed before this Tribunal when time and the objection of the department has no merit.

4. Explaining the other relevant facts it was brought to our notice that the appellant joined service on the recommendation of FPSC on regular basis in 1974 whereas the contesting respondents joined the department on ad‑hoc basis under the NDVP Programme and their services were regularised much after the appellant's regular, appointment in view of the law laid down by the Honourable Supreme Court of Pakistan in the following cases:‑‑ (i) 1984 SCMR 1023; (ii) 1982 SCMR 408; (iii) PLD 1996 SC 86 and (iv) 1996 SCMR 1163. ?????????? It was further claimed that by taking a wrong plea the private respondent had been favoured .against the spirit of law laid down by the Hon'ble Supreme Court of Pakistan in PLD 1991 SC‑.226 wherein it was held that "Ad hoc service will not be regularized even by the Chief Executive, which prejudice the rights of employees' seniority already working in the Department". It was asserted that in view of the fact of the case and legal pronouncement as referred to before, the appellants should be declared senior to the private respondents as was done in the seniority list prepared in 1985.

5. The respondents on the other hand gave their sides of the picture and stressed that in September, 1974. when answering respondents who were Graduate Engineers and were undergoing the job training in the Telecommunication Staff College, Haripur, the Federal Public Service Commission advertised the post of Assistant Divisional Engineers in the T & T Department. As the answering respondents were already acquainting the job training as Assistant Divisional Engineers, they made representation to the Prime Minister of Pakistan for giving them appointment as Assistant Divisional Engineers in the T & T Department. The Prime Minister of Pakistan as being the competent Authority accepted the request of the answering respondents by his order, dated 17‑9‑1974 and the answering respondents were given appointments as Assistant Divisional Engineers w. e. f. 22‑11‑1974 vide Appointment Letter Nos..10‑4/74, dated 3‑5‑1975. It was argued that from these appointment letters it was clear that answering respondents' appointment was neither ad hoc nor temporary. In 1978, the Government of Pakistan issued Federal Public Service Commission (Functions) Rules, 1978 and according to Rule 4 thereof, the Federal Public Service Commission (hereinafter referred to as the Commission) was directed to test civil servants appointed between 1‑1‑1972 to 30‑6‑1977 whose cases were to be referred to the Commission by the President of Pakistan whether they are fit to hold the post of which they had been appointed between 1‑1‑1972 to 30‑6‑1977. As the answering respondents had been appointed between these dates the Government decided that their cases may be referred to the Commission under the provisions of F.P.S:C. (Functions) Rules, 1978. On the representation of Answering respondents the competent Authority i.e. President of Pakistan, however, decided that the answering respondents may appear before the Commission in the viva voce test and that they may not be subject to written examination as they were undergoing on the job training in the Staff College, Hearipur. The F.P.S.C: on 27‑1‑1982 informed the Establishment Division about the suitability of the answering respondents as Assistant Divisional Engineers in the T & T Department with the observation that the appointment of the answering respondents may be regularized. After processing of the case and in consultation with the Establishment Division, the competent Authority i.e. the President' of Pakistan vide Notification No:S‑10‑11-77, dated 15‑11‑1982 ordered the retention in service of the answering respondents with effect from 22‑11‑1974 i.e. the date on which they were originally appointed as Assistant Divisional Engineers in Grade‑

17. The affected parties submitted a review petition which was rejected on 22‑6‑1983. It was maintained that it is evident from the Notification that the appointment of the answering respondents was neither ad hoc nor temporary and the same was made by the competent Authority on regular basis. A reference was made to a case decided by this Tribunal reported as PLJ 1982 Tr.C. (Service) 1657 (sic). The appointment made by the Prime Minister without consultation of the F,P.S.C. is not illegal. It was maintained that as appointment of the answering respondents w.e.f. 22‑1‑197 had been approved by the Prime Minister vide letter dated 3‑5‑1975 and subsequently confirmed by the President of Pakistan vide Notification dated 15‑11‑1982 after due approval of F.P.S.C. the appointment orders of Prime Minister and President of the Pakistan are not liable to be challenged in law/rules.

6. The appellants who were appointed by the Commission on 30‑12‑1974 i.e. after appointment of the answering respondents cannot claim seniority above them. The affected parties who felt aggrieved by the President's order dated 15‑11‑1982, filed a joint Appeal No.76‑R of 1983 before this Tribunal. After lengthy arguments, the appeal was heard on 17‑3‑1985 and vide judgment dated 27‑3‑1985, the Tribunal rejected all the arguments of the appellants and dismissed their appeal. Against the judgment dated 27‑3‑1985, the affected persons filed 4 Civil Petition for Special Leave in No. 314‑R of 1985 before the Honourable Supreme Court of Pakistan. The Honourable Supreme Court after hearing the case at length, on 24‑11‑1986 dismissed the petition for leave to appeal vide order dated 26‑11‑1986. It was further argued that as far as the impugned seniority list issued in December 1985 is concerned, it was claimed that the same had been prepared in contravention of seniority assigned to the answering respondents vis‑a‑vis the appellants in the light of decision by the Federal Service Tribunal vide judgment dated 27‑3‑1985 in appellants' Appeal No.76(R) of 1983 and the decision of the Honourable Supreme Court. The answering respondents, however, filed departmental appeal against this seniority list, which was rejected, and so an appeal was filed before this Tribunal No.8(R) of 1989. Before the next date of hearing viz. 10‑5‑1990 on behalf of respondent No. 1, it was submitted before the Tribunal vide objections dated 21‑1‑1990 that seniority of the answering respondents had been further revised and re-fixed my B‑17 from the date of their appointment i.e. 22?11‑1974 as prayed in Appeal No:8(R) of 1989 and placed a copy of revised seniority list before the Tribunal. As this appeal had fructified the same was dismissed as withdrawn. It was vehemently argued that once this fructification had been made in the seniority list and the appellants had not gone into appeal against that the present appeals filed by the appellants ceases to be of any legal merit.

7. Having considered the arguments of both the‑ sides, most specially the one taken by the appellants that they were not a party before the Supreme Court whereas appeal before the Tribunal was withdrawn the contention of the learned counsel for the appellants that vide Supreme Court's decision cited before even the President of Pakistan cannot pass orders prejudicial to those existing rights. According to the learned counsel for the appellants it was a new legal development in that what they call the Judge‑made law. No doubt quite often brilliant expositions are made in legal interpretations by talented members of judiciary but the laws so evolved cannot be applied retrospectively more particularly so in already settled issues. Their assertion that the preparation of new seniority list gave them the tight of appeal against this is rather illogical and not convincing. A list prepared already on decided issues does not create a new right of appeal. Another important fact is whether or not any person appointed under the NDVP Scheme could be treated as having been working against an existing seat because as far as that scheme is concerned, the incumbents were allowed to join as volunteers of NDVP Scheme and before their absorption they could not be said to have been working regularly against an existing post. The issue involved here is, not about appointment regularly made against a post. Actually section 12(A) of the Civil Servants Act was basically introduced to remove all irregularities and the President was specially empowered to do the same. Section 12(A) of Civil Servants Act, 1973 is reproduced hereunder for ready reference: "12‑A, Certain persons to be liable to removal, etc. ‑‑Notwithstanding anything contained in this Act or in the terms and conditions of a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977, the President or a person authorised by him in this behalf may‑‑ . (a) without notice, remove such a civil servant from service or revert him to his lower post as the case may be, on such date as the President or, as the case may be, the person so authorised may, in the public interest, direct; or (b) in a case where the appointment or promotion of such a civil servant is found by the President or, as the case may, be, the person so authorised to suffer from a deficiency in the minimum length of service prescribed for promotion or appointment to .the higher grade, direct, without notice, that seniority in such case shall count from the date the civil servant complexes the minimum length of service in such appointment or promotion, as the case may be. From all this, we deduce that the answering respondents could be taken as appointed with effect from 22‑11‑1974. One of the arguments of the appellants was that nobody could be confirmed or regularised retrospectively which resulted in injury to the right of those who were already holding regular posts most particularly after the approval of the F.P.S.C. is also normally a forceful argument but it was section 12‑A of Civil Servants Act which could be called a special legislative measure to remove some of the legal infirmities in case of persons who were appointed between 1‑1‑1972 to 30‑6‑1977 which is not covered by such arguments. Finally the citation of the case decided by Honourable Supreme Court that even President cannot pass orders jeopardizing the right of those who are already holding regular posts is not relevant when action was taken under section 12‑A of the Civil Servants Act 1973.

8. As a result all the appeals stand dismissed.

9. No order as to costs. Parties be informed. H.B.T./207/St/F????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.