1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑All the seven appeals are of identical nature. They have been heard together and are disposed of by this consolidated judgment.

2. All the seven appellants M/s. (Dr.) Sh. Aleem Mahmood, S. Ibrahim Shah, Dr. Abdul Hamid Qureshi, S.M. Badrul Hassan, Miss Shirin Ghory, Akhar Hayat Khan and Abdul Razaq Khan were inducted in the Secretariat Group in the cadre of Deputy Secretaries in the following circumstances. They have preferred these appeals for determination of their seniority in the said cadre.

3. The appellants were serving in different departments/ organisations in Grade‑19 when they were transferred to the Secretariat Group in the year 1982 under the provisions of section 10 of the Civil Servants Act, 1973 and were absorbed there by way of induction from the dates they had entered the Secretariat Group by way of transfer and were allowed seniority from those dates. The orders of their induction were issued in December, 1988. They claimed seniority from the dates they had entered Grade‑19 wherever they were. Their claim was turned down. Therefore, they preferred these appeals.

4. The facts and circumstances which led to the induction of the appellants in the Secretariat Group are concisely stated in the Summaries submitted to the President by the Establishment Secretary. The first summary was submitted under Establishment Division No.10/3/87‑CP.3, dated 1‑6‑1988. Its text and the orders made thereon are reproduced below:‑ "ESTABLISHMENT DIVISION SUMMARY FOR THE PRESIDENT Subject:‑ INDUCTION OF OFFICERS SERVING AS DEPUTY SECRETARY/JOINT SECRETARY UNDER SECTION 10 OF THE CIVIL SERVANTS ACT 1N THE SECRETARIAT: The Secretariat Group comprises posts of Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretariats as are borne on the cadre of All Pakistan Unified Grades in terms of Establishment Division O.M. No. 2/2/75‑ARC, dated 12th April, 1976 (Annexure `I'). According to the existing instructions contained in O.M. dated 12‑4‑1976 ibid, appointments to the post of Deputy Secretary and Joint Secretary can be made in accordance with the following methods:‑ DEPUTY SECRETARY: (i). By promotion of Grade‑18 officers of the Office Management Group and Secretariat Group on the recommendations of the Central Selection Board. (ii) By horizontal movement from the other Occupational groups of Grade‑19 officers who have been recommended by the Ministries/Divisions, Departments or Provincial Governments and have been found fit by the Central Selection Board. (iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc. as may be prescribed. JOINT SECRETARY: (i) By promotion of officers in the grade of Deputy Secretary on the recommendations of the Central Selection Board. (ii) By horizontal movement of such Grade‑20 officers of the various Occupational Groups as are recommended by Ministries/Divisions/ Departments/Provincial Governments etc. and are found fit by the Central Selection Board. (iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualification and experience etc. as may be prescribed.

115. While the methods of direct appointment through FPSC was never used, the horizontal movement of officers from other occupational groups was also stopped in 1977. Thus appointments to the post of Deputy Secretary and Joint Secretary have only taken place through the method of promotion from the Section Officers and Deputy Secretaries. The utilization of only one source for manning the Secretariat resulted in a serious shortage of officers in the Secretariat at the level of Deputy Secretary. The stoppage of induction through horizontal movement as provided under the rules also deprived the Secretariat of officers with rich and varied field experience.

116. As the movement of officers from Occupational Groups to Secretariat has remained suspended during the last ten years, the Government have posted officers to Secretariat under section 10 of the Civil Servants Act, 1973. The Officers so appointed have now worked in Secretariat for a number of years and have been requesting for regular induction in the Secretariat Group.

117. It may be pointed out that the proposed reorganisation of the Secretariat Group in the wider context of Administrative Reforms also contains recommendation for induction of officers serving as Deputy Secretary/Joint Secretary under section 10 of the Civil Servants Act. As the matter is still under consideration of the Government and may take considerable time to finalise, the officers working in the Secretariat, both as Deputy Secretary and Joint Secretary under section 10 of the Civil Servants Act, are greatly concerned about their future prospects. The absence of these officers for a number of years, from their present Groups/Departments has adversely affected their career prospects. It would be only just and equitable if the fate of these officers is decided by inducting these officers in Secretariat Group through the Central Selection Board

11. This would ensure their continued availability to the Secretariat and also relieve them of their present state of uncertainty on this account.

118. The existing instructions permit manning of the post of Deputy Secretary and Joint Secretary in the Secretariat Group by officer belonging to various Occupational Groups through horizontal movement. Therefore, the officers who are working in the Secretariat under section 10 of the Civil Servants Act for the last 3 years or more. deserve to be appointed, subject to approval of the Central Selection Board‑II to the Secretariat Group on a regular basis.

119. In addition to the officers of Occupational Groups discussed in the preceding paras, there is another category of officers (six in number who were posted to the Secretariat in response to a D.O. letter dated 29th May, 1980 (Annexure II) of the then Establishment Secretary. It was stated in the D.O. Letter which was addressed to all Federal Secretaries, that some posts of Deputy Secretaries in the Secretariat Group were to be filled through horizontal movement and the officers selected would be considered for selection as Deputy Secretaries through the Central Selection Board. In response some Ministries/Divisions recommended officers for appointment as Deputy Secretary. There are six such officers for appointment as Deputy Secretary. There are six such officers who are still serving as Deputy Secretary in the Secretariat and have not so far been inducted in the Secretariat Group. Their cases should m all fairness have been placed before the Central Selection Board to determine their suitability for induction in the Secretariat Group in view of the commitment made by the Establishment Secretary in the letter of 29th May, 1980.

120. In view of the position explained in the preceding paragraphs the following proposals are submitted for the kind approval of the President: (i) The officers belonging to regularly constituted Occupational Groups and presently serving as Deputy Secretary/Joint Secretary under section 10 of the Civil Servants Act, 1973 for the last three years or more may be inducted in the Secretariat Group subject to the recommendations of the Central Selection Board. There are five such officers working as Deputy Secretary and seven officers as Joint Secretary (Annexure III). (ii) The six officers (Annexure `1V') appointed as Deputy Secretary under section 10 of the Civil Servants Act in pursuance of the D.O. letter of the Establishment Secretary may also be inducted as Deputy Secretary in the Secretariat Group subject to the recommendations of the Central Selection Board,

121. The proposal contained in para. 8(i) above does not require any change in the existing rules/instructions governing constitution of the Secretariat Group. The proposal in para. 8(ii) however has been recommended in relaxation of the existing instructions.

122. The approval of the President is solicited to the proposals at para. 8 above. (Sd.) K.U. FARUQUI, Establishment Secretary. Estt. Divn. No. 10/3/87‑CP 3, dated 1‑6‑1988. THE PRESIDENT

123. Please discuss. (Sd.) President. 29‑7.

124. The President may like to see the proposal before discussing. (Sd.) Estab. Secretary. 28‑

8. COS TO PRESIDENT: Estab. Divn. No. 10/3/87‑CP3, dated 29‑8‑1988

125. The President has been pleased to direct as‑under:‑ "A consolidated case covering officers both in para. 8(i) and para. 8(ii) plus that of the engineering s working in the Secretariat Group may be prepared for induction in the Secretariat Group subject to recommendations of the Central Selection Board". (Sd.) BRIG. ZULFIQAR AHMAD KHAN, Director‑General (Coord.) 27‑9. (Sd.) Estab. Secretary 27‑

9. In pursuance of the direction of the President as per the concluding paragraph of the aforesaid Summary, 'the case was further examined and another Summary was submitted to the President under Establishment Division No.10/3/87‑CP.3, dated 27‑10‑1988. The entire text of the Summary and the order of the President recorded thereon by the Principal Secretary to the President, are reproduced below: "ESTABLISHMENT DIVISION SUMMARY FOR THE PRESIDENT Subject;‑ INDUCTION OF OFFICERS AS JOINT SECRETARY DEPUTY SECRETARY IN THE SECRETARIAT GROUP. On the summary regarding induction of officers, presently serving as Joint Secretary/Deputy Secretary under section 10 of the Civil Servants Act, 1973 or on deputation from other Occupational Groups/Cadres, in the Secretariat Group submitted to the President vide U.O.No.10/3/87‑CP.3, dated 1st June, 1988 (Annexure I) he was pleased to approve as under:‑ (a) The officers belonging to regularly constituted Occupational Groups and presently serving as Deputy Secretary/Joint Secretary under section 10 of the Civil Servants Act, 1973 for the last 3 years or more may be inducted in the Secretariat Group subject to the recommendations of the Central Selection Board. (b) The 6 officers not belonging to any regularly constituted group and the engineers serving for a period of 3 years or more as Deputy Secretary under section 10 of the Civil Servants Act, 1973 or on deputation may also be inducted in the Secretariat Group, in relaxation of the existing instructions, subject to the recommendations of the Board.

2. Consequently the cases of officers, listed in Annex. II, were placed before the Central Selection Board for determination of their suitability for induction as Joint Secretary/Deputy Secretary in the Secretariat Group. The Central Selection Board examined the record of the officers on the panel and recommended (minutes at Annex‑III) as under:‑‑ (a) The following officers may be inducted as Joint Secretary in the Secretariat Group:‑‑ . (1) Mr. Fakhuruddin Mallick. (2) Mr. Ghazanfrullah Khan. (3) Mr. Manzoor Hussain. (4) Mr. Shaukat Hussain. (5) Mr. Farhat Hussain. (6) Mirza Hamid Hasan. (7) Mr. Muhammad Younis Khan. (b) The following officers belonging to regularly constituted occupational groups may be inducted as Deputy Secretaries:‑ (1) Mr. Zaheeruddin Babar. (2) Mr. Muhammad Iqbal Malik. (3) Mr. Pervez Ejaz Sheikh. (4) Mr. Ahmad Waqar. (51) Mr. Abdul Hafeez Mirza. (c) The following officers belonging to Cadres other than regularly constituted occupational groups may be inducted as Deputy Secretary in relaxation of the existing instructions:‑ (1) Sheikh Pervez Nusrat. (2) Mr. Ajmal Mahmood Qureshi. (3) Dr. Shaikh Aleem Mahmood. (4) Mr. Akbar Hayat Khan Gandapur. (5) Mr. S. Ibrahim Shah. (6) Miss Shireen Ghauri. (d) The following engineers may be inducted as Deputy Secretary in relaxation of the existing instructions:‑ (1) Mr. Abdul Razak Khan. (2) Mr. Zafar Ahmed. (3) Mr. Badrul Hasan. (e) Since the record of the following officers was not complete, the Board recommended deferment of their cases and directed the Establishment Division to put up their cases in the next meeting after completing their record: (1) Dr. Abdul Hamid Qureshi. (2) Mr. Idrees Muhammad. (f) The performance of Mr. Muhammad Aslam Farouk was not found satisfactory as such it was recommended that he may not be inducted as a Deputy Secretary in the Secretariat Group. (g) The following engineers had not completed 3 years service as Deputy Secretary as such the Board recommended that their case may be resubmitted to the Board on completion of 3 years period:‑ (1) Mr. Muhammad Hashim Leghari. (2) Mr. Jehangir Shaikh. (3) Mr. Sher Akbar.

3. Another important issue related with the induction of these officers is the determination of their seniority on induction in the Secretariat Group. With the' amendment in Civil Servants Act, 1973 through Ordinance No. III of 1984, appointments, whether by direct recruitment or promotion, are now made to the post in a Service/Cadre and not in a grade. In the light of this amendment, seniority in a post in a service or Cadre, to which a civil servant is appointed takes effect from the date of regular and continuous appointment to that post. To stay within this framework it is proposed that the officers to be inducted in the Secretariat Group may be appointed on a regular basis as Deputy Secretary/Joint Secretary from the date they joined such posts in the Secretariat. The notifications to be issued would take care of this aspect. Accordingly it is proposed that the inducted officers may be allowed seniority from the date they started officiating in the Secretariat Group Cadre to the posts of Joint Secretary/Deputy Secretary, in the Federal Secretariat, either under section 10 of the Civil Servants Act, 1973 or on deputation. This would also ensure that the seniority assigned to the inducted officers is not such as would adversely effect the interest of the existing members of the Secretariat Group.

4. Before notifying the induction of the officers in the Secretariat Group, they will be given an offer of appointment in the light of the seniority principle proposed above. (S d.) K.U. FARUQU1, Establishment Secretary. COS TO THE PRESIDENT: No. 10/3/87‑CP, dated 27‑10‑1988. Establishment Division No. 10/3/87‑CP. 3, dated 27‑10‑1988.

6. The President has been pleased to approve the proposals in paras and 3 above.

7. The President has also been pleased to direct that the Establishment Division must fix a percentage of vacancies both in BPS‑20 and BPS‑19 against which such induction can be made in future, which will be essential to: (a) ensure off and on/haphazard inductions. (b) Safeguard the interest of existing officers in the Secretariat Group. (Sd.) VA. JAFAREY, Principal Secretary to the President 29‑11‑1988. ESTABLISHMENT SECRETARY:

148. Issue notifications. (Sd.) K.U. FARUQUI, Establishment Secretary. 1/12." The appellant except Dr. Abdul Hameed Qureshi (Appeal No. 271(R)/89) were informed accordingly under Office Memo. No.59‑23/88‑E.2, dated 6‑12‑1988 and they were called upon to communicate within 15 days if they would accept the offer unconditionally. They accepted the offer of their induction in the Secretariat Group in the cadre of Deputy Secretary but they did not accept the condition of their reckoning seniority from the date of their regular officiation in the Secretariat Group and claimed seniority from the date they had entered Grade‑19 in their parent departments in accordance with the provisions of Rule 8 of para. 3(2) of the Establishment Division Office Memorandum No. 2/2/75‑ARC, dated 12‑4‑1976. However, orders of their induction in the Secretariat Group with effect from the respective dates of their entry in the Secretariat Group were issued on 24‑12‑1988 and no decision on their claim for determination of their seniority with retrospective effect was communicated to them. It is in the context of the above facts that the appellants have filed these appeals for determination of their seniority after the rejection of their departmental representations/appeals.

5. The subtle question for determination is the date from which the appellants are entitled to reckon their seniority in the cadre of Deputy Secretary in the Secretariat Group. It would be worthwhile to reproduce here in below the relevant paragraphs of Establishment Division O.M. No.2/2/75‑ARC, dated 12‑4‑1976 (as corrected until its publication in ESTACODE 1983 edition), where under the Secretariat Group was constituted: Secretariat Group: Sl. No. 18: In continuation of the Establishment Division Office Memorandum No. 1/2/75‑ARC, dated the 27th January, 1975, it has been decided to constitute another occupational group to be called the "Secretariat Group". The group will comprise posts of Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretariats as are borne on the cadre of All‑Pakistan Unified Grades.

2. The Secretariat Group will be under the administrative control of the Establishment Division and will function in accordance with the rules and procedure outlined below.

3. Deputy Secretary.‑‑‑Appointments to the post of Deputy Secretary will be made in accordance with the following methods:‑ (i) By promotion of Grade‑18 officers of the Office Management Group and the Secretariat Group on the recommendations of the Central Selection Board. (ii). By horizontal movement from other Occupational Group of Grade‑19 Officers who have been recommended by the Ministries/Divisions, Departments or Provincial Governments and have been found fit by the Central Selection Board. (iii) By direct appointment an the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc. as may be prescribed. 4. xx xx xx 5. xx xx xx 6. xx xx xx 7. xx xx xx Seniority

8. Deputy Secretary.‑‑‑Seniority would be determined from the date of continuous regular officiation as Deputy Secretary, or in a post in Grade‑19, whichever is earlier. 9. xx xx xx 10. xx xx xx 11. xx xx xx 12. xx xx xx 13. xx xx xx

14. The terms and conditions of Government servants belonging to this Group will be governed, as in the case of other Government servants, by the‑provisions of the Civil Servants Act, 1973, and rules and orders issued thereunder from time to time.

15. This supersedes Establishment Division O.M. No. 2/2/75‑ARC, dated the 21st February, 1975."

6. The appellants Dr. Sh. Aleem Mahmood, Mr. S.M. Badrul Hassan and Mr. Abdul Razak Khan argued the appeals themselves; while the appellants Mr. S. Ibrahim Shah, Dr. Abdul Hameed Qureshi and Miss Shirin Ghory were represented by their respective Advocates Mr. Gulfam Akhtar Awan, Mr. Tanvir Bashir Ansari and Mr. Saleem Zulfiqar. The appellant Dr. Sh. Aleem Mahmood took the lead and argued the appeal extensively. His arguments were by and large adopted by or on behalf of the other appellants ` with few additions here and there. The appeals are directed against a large number of respondents besides the Federal Government through the : ' Establishment Secretary. There are 144 respondents in Appeal No. 262(R)/89; 125 in Appeal No. 268(R)/89; 64 in Appeal No. 271(R)/89; 160 in Appeal No.272(R)/89;19 in Appeal No. 290(R)/89; 147 in Appeal No. 293(R)/89 and 17 in Appeal No. 386(R)/89. All the appeals have been resisted by the Federal Government which has filed written objections and was represented at the hearing by the Standing Counsel Sardar Muhammad Amir Akbar Khan. From amongst the private respondents, a few of them have filed written objections but none of them appeared at the hearing of the appeals. Only respondents, 56, 78, 87, 95, 100, 118 and 131 have filed objections in Appeal No. 262(R)/89. In Appeal No. 268(R)/89, only respondents 34, 59, 81, 97 and 101 have filed written objections. None of the private respondents in Appeal No. 271(R)/89 has filed written objections. Only respondents No. 77 and 99 have filed written objections in Appeal No. 272(R)/89. None of the private respondents has filed written objections in Appeal No. 290(R)/89. Only one respondent No. 78 has filed written statement in Appeal No. 293(R)/89 that he had already retired from service and the matter will be attended to by the Establishment Division and others. None of the private respondents has filed objections in Appeal No.386(R)/89.

7. The main thrust of the arguments of the appellants was that on their induction in the Secretariat Group, in whatever manner, they are entitled to ' reckon their seniority as laid down in paragraph 8 of the O.M. dated 12‑4‑19'76, i.e. from the date of their continuous regular officiation as Deputy Secretary or from the date they held a post in Grade‑19, whichever was earlier. The appellant Dr. Sh. Aleem Mahmood cited some authorities in support of his submissions. He also urged emphatically that they were initially transferred to the service in the Secretariat with the purpose of their induction in the Secretariat Group and he made pointed reference to the D.O. letter of the Establishment Secretary dated 26th/29th May, 1980 which was circulated amongst the Secretaries of the Federal Government. It would be worthwhile to reproduce the D.O. letter in extenso: "SYED IJLAL HAIDER ZAIDI ‑ ESTABLISHMENT SECRETARY TEL. 67651 ESTABLISHMENT DIVISION RAWALPINDI 26th/29th May. 1980. My dear Secretary, Some posts of Deputy Secretary in the Secretariat Group are available which are proposed to be filled through horizontal movement of Grade‑19 officers of other Occupational Groups and Cadres. Officers appointed as Deputy Secretaries in this manner are inducted in the Secretariat Group and sever their connection with the parent groups.

2. You are requested to please recommend suitable and competent Grade‑19 officers of the occupational groups/cadres under the administrative control of your Division/Provincial Government who volunteer to serve in the Secretariat Group. Their cases will be submitted to the Central Selection Board for selection as Deputy Secretaries to the Federal Government.

3. I shall be grateful if the names and CR dossiers of officers, recommended by you, are furnished to this Division, at the latest by the 30th June, 1980. Ten copies each of their service particulars may be supplied in the enclosed pro forma. With regards. (Sd.) SPED IJLAL HAIDER ZAIDI." The appellant Dr. Sh. Aleem Mahmoood next urged, that by virtue, or their induction in the Secretariat Group, they became entitled to the terms and conditions laid down under the aforesaid O.M. of 12‑4‑1976, where under the Secretariat Group has been constituted. He refuted the contention of the respondent Government that on account of their induction in the Secretariat Group by relaxation of the rules, they were to be governed by the order of the President in respect of their seniority in the Secretariat Group as per order on the Summary. He contended that they did not give option for reckoning their seniority from the dates of their entry in the service in the Secretariat and yet orders of their induction in the Secretariat Group were issued and it was understood that their contention that their seniority would be reckoned in accordance with the provisions of the O.M. dated 12‑4‑1976 was accepted. He even challenged the action of the Government in having considered the case of their induction outside the scope of O.M. dated 12‑4‑1976, arguing that they were eligible for their induction in the Secretariat Group in pursuance of Establishment Secretary's B.O. letter No. 25/4/73‑AV, dated 6‑2‑1975, published in ESTACODE (1989 edition) at pages 1098 and 1099. He also made grievance that they were transferred to the Secretariat service on the understanding that they would be inducted in the Secretariat Group and they remained under suspense for a number of years and the case of their induction was decided only in the year 1988 and that too by placing them in disadvantageous position in the line of seniority, as aforesaid. He argued with considerable emphasis that they were entitled to reckon their seniority from the date they had entered Grade‑

19. In his own case, he urged that the private respondents in his appeal constitute five groups, one of those belonging to the former CSP officers, whose case of seniority was decided by this Tribunal and was sub judice before the Supreme Court and he would await the verdict of the Supreme Court; and the second and the third groups consist of those who had entered the Secretariat Group as lateral entrants; and the fourth group of the Deputy Secretaries who were appointed in the Secretariat Group after the dates of their (the appellants') entry in Grade‑19, and fifth group of those persons who were inducted along with him but were junior to him in the length of service. The other appellants adopted almost the same arguments advanced by the appellant Dr. Sh: Aleem Mahmood and mentioned certain facts which had led to their transfer to the Secretariat Group and ultimate induction therein with the embargo on their seniority.

8. On the other hand, the learned Standing Counsel made reference to the facts stated in the Summaries submitted to the President and the orders of the President thereon, reproduced above. He contended that the appellants belonged to service in non‑occupational groups and were not eligible to have been inducted in the Secretariat Group under the provisions of the O.M. dated 12‑4‑1976; and it was in that context that their cases were considered as a special case and relaxation was made for their induction in the Secretariat Group in view of their service in that Group by way of their transfer and they were allowed seniority from the date of their entry into the Secretariat Group on transfer., He urged that the order of the induction and seniority of the appellants as made by the President in exercise of his plenary powers under the Civil Servants Act, 1973. He placed reliance on a recent decision of the Supreme Court in the case of Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan, reported in PLD 1990 SC 1013. 9‑ The claim of the appellants for seniority in the Secretariat Group is entirely based on the provisions of paragraph 8 of the O.M. dated 12‑4‑1976, reproduced above, which provides that seniority in the cadre of Deputy Secretaries would be determined from the date of continuous regular officiation as Deputy Secretary or in a post in Grade‑19, whichever is earlier. The appellants claim seniority from the dates they had entered Grade‑19 wherever they were and those dates were earlier than the dates of their induction as Deputy Secretary in the Secretariat Group. The contention of the Government is that since the appellants were not eligible for induction as Deputy Secretaries in the Secretariat Group and their induction was made in relaxation of the rules; their seniority was to be determined in the manner as laid down by the competent authority. The appellant Dr. Sh. Aleem Mahmood (Appeal No. 262(R)/89) attempted to refute the stand of the Government that he or even other appellants were not eligible for their. induction in the Secretariat Group by horizontal movement as provided in clause (ii) of paragraph 3 of O.M. dated 12‑4‑1976, by making reference to Establishment Secretary's D. O. letter No. 25/4/73‑AV, dated 6‑2‑1975, published at Sl. No. 20 at page 1098 of ESTACODE (1989 Edition). Of course, the said D.O. letter does provide that it had been decided with the approval of the Prime Minister that Government servants in Grade‑19 or even in Grade‑18 but with twelve years service in Grade‑17 and above, were eligible for appointment to the posts of Deputy Secretaries in the Secretariat Group; but that decision was taken before the Secretariat Group was constituted and that decision stood superseded by the O.M. dated 12‑4‑1976, where under the Secretariat Group was constituted and appointment to the post of Deputy Secretary by horizontal movement was restricted to only Grade‑19 officers of other Occupational Groups. Thus, there is no force in the argument put forth by the appellants that they were eligible for induction in the Secretariat by horizontal movement although they did not belong to any Occupational Group. Their induction was made by relaxation of rules by order of the President in recognition of their service in the Secretariat Group by way of their transfer to the Group. Herein arises the question whether the appellants became entitled to the benefit of seniority envisaged under paragraph 8 of the O.M. dated 12‑4‑1976 by virtue of their induction even by relaxation of rules or order for determination of heir seniority had to be made as was done in other cases. The reasons for determination of their seniority in the Secretariat Group are stated in paragraph 3 of the Summary dated 27‑10‑1988 submitted to the President and reproduced above at pages 9 to

11. The main argument advanced in the Summary was that with the amendment in the Civil Servants Act, 1973 through Ordinance No. III of 1984, appointments whether by direct recruitment or promotion, were to be made to 'a post in a service/cadre and not to a grade and, therefore, seniority in a post in a service or cadre, to which a civil servant is appointed, takes effect from the date of regular and continuous appointment to that post. The contention of the appellants is three‑fold: firstly, that the amendment referred to in the Summary extends to only appointments by direct recruitment or promotion but not to those made by way of induction: and secondly that the order of their respective induction is from the dates which were prior to the promulgation of Ordinance No. III of 1984; and thirdly, that there is no corresponding amendment in paragraph 8 of the O.M. dated 12‑4‑1976. The second and third contentions of the appellants do have substance but not the first one, as entry by induction is also an appointment as envisaged in paragraph 3 of the said O.M. Besides, the plenary power of the President in dealing with the case as may appear to him just and equitable is provided under section 23 of the Civil Servants Act, 1973. It was in exercise of that power that the appellants were allowed induction in the Secretariat Group in relaxation of the rule and it would have been more just and equitable if they had been allowed the benefit of seniority as envisaged under paragraph 8 of the O.M. dated 12‑4‑1976 for the reason that the appellants had not themselves sought their transfer to the Secretariat Group but it was on the consideration of their service in the equivalent grade that they were transferred to the Secretariat Group and they had rendered satisfactory service there for about five years and they were approved for their induction in the Secretariat Group. By mere relaxation of rules for their induction in the Secretariat Group without giving them the benefit of seniority did not give them just and equitable relief as the service they had rendered in Grade‑19 (BPS‑19) earlier went waste. Another factor deserving consideration in this context is that the appellants were given option of accepting induction on the terms and conditions that they would reckon seniority from the respective dates of their entry into the Secretariat Group by transfer and they had indicated in unequivocal terms that the terms and conditions for induction were acceptable to them, provided they were given seniority in accordance with the provisions of paragraph 3 of the O.M. dated 12‑4‑1976 and yet orders of their induction were issued. The order of their induction was unqualified and it follows that their plea for reckoning their seniority in accordance with the provisions of the O.M. dated 12‑4‑1976 was impliedly accepted. They are, therefore, entitled to reckon their seniority from the respective dates of their entry into Grade‑19 wherever they were. However, the case of appellant Dr. Abdul Hameed Qureshi (Appeal No.271(R)/89) would need to be re‑examined in the Establishment Division as consideration of his induction in the Secretariat Group was deferred by the Central Selection Board at its meeting held on 29‑9‑1988 and yet the notification of his induction was issued on 29‑12‑1988 and no evidence has been placed before us to indicate that his induction was cleared by the Central Selection Board.

10. The appellants have sought determination of their seniority vis‑a‑vis the private respondents named in the appeals filed by them. The appellant Dr. Sh. Aleem Mahmood (Appeal No. 262(R)/89) pointed out that the respondents in his appeal belonged to five groups viz. those belonging to former CSP cadre, lateral entrants, those appointed as Deputy Secretaries on or after 18‑3‑1977 and those who were inducted along-with him but were junior to him. He did not press the appeal in respect of those who belonged to former CSP class as the question of their seniority in the Secretariat Group was sub judice before the Supreme Court. He offered arguments in respect of his seniority vis‑a‑vis other batches. Since it has been held above that the seniority of the appellants shall be determined on the basis of the provisions of Office Memorandum No. 2/2/75‑ARC, dated 12‑4‑1976, the exercise of re-determination of the seniority will have, therefore, to be made in the Establishment Division and the aggrieved persons will be at liberty to have recourse to the legal remedy as may be admissible to them.

11. For the reasons recorded above, the appeals are allowed to the extent that the seniority of the appellants shall be determined in accordance with the provisions of Office Memorandum No. 2/2/75‑ARC, dated 12‑4‑1976; subject to the re‑examination of the order of the induction of the appellant Dr. Abdul Hameed Qureshi in Appeal No. 271(R)/89. No order is made for costs. RASHEED‑UD‑DIN ARSHAD (MEMBER).‑‑‑

12. I have had the benefit of going through the judgment written by the learned Chairman. While I agree with the relief granted to the appellants, I would like to add that in the decision of Federal Service Tribunal m the appeal of Syed Ali Muktada Wahidi v. Establishment Division and others (1984 PLC (C.S.) 546) relief was granted to the appellant vis‑a‑vis the lateral entrants whose appointments as Deputy Secretary were considered irregular and who were reverted/ removed from service as a result of exercise under section 12‑A of Civil Servants Act, 1973 and were asked to appear before the Federal Public Service Commission for determining their suitability for appointment as Deputy Secretary on regular basis. In the order of the Tribunal it was directed that such Officers would take their seniority from the dates they were re‑appointed. The Establishment Division appealed against the order of the Tribunal before the Supreme Court of Pakistan (Civil Appeal No. 670 of 1984 ‑‑ Establishment Secretary v. S.A.M. Wahidi but the appeal of Establishment Division was dismissed. The concluding sentence of the judgment of Supreme Court is: "The judgment of the Tribunal is unexceptionable and the appeal is dismissed with costs."

13. The appellant has sought the same relief in the appeal under consideration. In my view, this relief should also be allowed to him following the decision of the Supreme Court. ORDER OF THE TRIBUNAL In pursuance of proviso (c) to subsection (2) of section 3‑A of the Service Tribunals Act, 1973, the order of the Tribunal is that the seniority of the appellants shall be determined in accordance with the provisions of Office Memorandum No. 2/2/75‑ARC, dated 12‑4‑1976; subject to the re examination of the order of the induction of the appellant Dr. Abdul Hameed Qureshi in Appeal No. 271(R)/89. A.A./666/Sr.F Order accordingly.