1984 PLP (C (PLC(CS))

ABDUR RASHID (MIMBER).‑In this contest of seniority between the appellant on the one hand and respondents Nos. 4 (Muhammad Ashraf Safeer) and 5 (Muhammad Hanif), on the other, the facts, briefly, are that the appellant was selected as Assistant Director, National Savings through the F. P. S. C. and appointed as such with effect from 11th December, 1972 vide Central Directorate of National Savings, Islamabad Notifications dated 25th January, 1973. The post of Assistant Director was equal to Grade‑16 of post 1st March, 1972 era. Again, the appellant was selected through the F. P. S. C. and appointed as Assistant Director (Grade‑17) with effect from 22nd September, 1975. The post of Assistant Directors, it may be mentioned, had been upgraded sometime in the year 1974.

2. Respondents Nos. 4 and 5 joined the National Savings Organisa tion on 17th June, 1965 and 1st May, 1969 respectively. Respondent No. 4 was promoted as Assistant Director (equivalent of Grade‑16) on 1st January, 1971 and respondent No. 5 on 1st May, 1971.

3. A Departmental Promotion Committee Meeting was held on 6th December, 1974. Respondents Nos. 4 and 5 were approved for promotion as Assistant Directors with effect from 1st January, 1975. In an undated summary, the case was sent for approval of the Establishment Minister through the Establishment Secretary.

4. The approval to the above case was awaited when another D. P. C. Meeting was held on 3rd September, 1975 and since by that time the approval of the Establishment Minister to the D. P. C. Meeting of 6th December, 1974 referred to in para. 3 above, had not been received, the D. P. C. Minutes of 3rd September, 1975 somehow, made a reference to the Minutes of 6th December, 1974 and said "(1)

(2) Muhammad Ashraf Safeer. (3) Muhammad Hanif (4)

(5)

(6)

The three first named were found fit in the meeting of 6th December, 1974 and the rest in the meeting of 3rd September, 1975. Finance Secretary has seen and approved. Approval of the Establishment Minister is solicited to the promotion of Assistant Director, National Savings Grade‑17 of‑ (i) the three officers named at serial number 1‑3 in para. 1 above with effect from 1st January, 1975 and (ii) the others named in para. 1 above with effect from the date of orders." The above summary was approved on 19th July, 1976.

5. Vide Gazette notification, dated 7th August, 1976 respondents Nos. 4 and 5 promoted to Grade‑17 with retrospective effect from 1st January, 1975. Without cancelling the said Gazette notification the department concerned issued Gazette notification, dated 28th July, 1976 which read "The following Assistant Directors

Grade‑16 are promoted to Grade‑17 with effect from the dates they assume charge of the post and until further orders: (1)

(2) Mr. Muhammad Ashraf Safeer (3) Mr. Muhammad Hanif... (2) They will be on probation for a period of one year (3) Their promotion is subject to passing a departmental test before the period of probation is over." 6, (n: the seniority list dated 13th October, 1979, respondents Nos. 4 and 5 were shown senior to the appellant. The appellant preferred a departmental appeal on the ground that since he had been appointed to Grade‑17 on 22nd September, 1975 which was from a date earlier than the Gazette notification, dated 28th July, 1976, appointing the respondents to Grade‑17, he should, therefore, be placed above them. His depart mental appeal vas rejected vide letter, dated 3rd January, 1981 on the ground that since respondents Nos. 4 and 5 had been approved by the competent authority for appointment to Grade‑17 with effect from 1st January 1975, his claim of seniority could not be acceded to. Thereafter, the appellant came up in, appeal before the Federal Service Tribunal.

7. We heard the learned counsel from both sides. We also heard respondent No. 4 as well as perused the relevant record.

8. The learned counsel for the appellant, in his arguments before us, raised two pleas. First: that the appellant was appointed to Grade‑17 with effect from 22nd September, 1975 on regular basis. As such and in accordance with section 8 (4) of the Civil Servants Act, 1973, his seniority reckoned with effect from the said date. On the other hand respondents Nos. 4 and 5 had been appointed to Grade‑17 with effect from 28th July, 1976. Obviously, therefore, the appellant should rank senior and further that the appointments of the said respondents could not be given retrospective effect from 1st January, 1975, While repelling the argument of the learned counsel, we brought' home to him that the summary in respect of the respondent had been categorical and had recommended their promotion with effect from 1st January, 1975. It was no fault of the respondents that it took more than 18 months for the summary to be approved. Furthermore, the competent authority had approved the summary as per recommendation meaning thereby that the promotion of respondents Nos. 4 and 5 received approval with effect from 1st January, 1975. The respondent No. 4 stated at the bar that he had, actually, been holding the charge of Grade‑17 post w. e. f. 1st January, 1975 for which he had drawn full emoluments. The departmental representative confirmed this position in respect of both the respondents. Second: that respondent No. 4 had not cleared his departmental examination within the period of his probation which expired on 28th August, 1977 and as such he would be deemed to be an ad hoc appointee and since an ad hoc appoint ment did not confer any advantage of seniority, the appellant would rank senior to respondent No.

4. Respondent No. 4 stated at the bar that he had been deputed abroad (West Germany) for training from February, 1977 to June, 1978. Before that, he had to undergo a five months German language course at the Institute of Modern Languages, Islamabad. It was, therefore, not possible for him to clear the departmental examination within his period of probation. He did, however, clear the said examination in August, 1978 shortly after his return from West Germany. We find this to be a plausible explanation. Also, the law allows relaxation in cases, as in the present one, in that if a thing cannot be done in a given time‑span then the time would be deemed to have been extended.

9. We have given this case a good deal of consideration and have come to the conclusion that the present appeal is devoid of merit which we accordingly dismiss with no order as to costs. We hold respondents Nos. 4 and 5 senior to the appellant. A. E. Appeal dismissed.