1993 PLP (C (PLC(CS))

SYED ALLY MADAD SHAH (CHAIRMAN) ‑‑‑Appellant Mr. Muhammad Jameel Khan, an Assistant Director, Intelligence Bureau, has preferred this appeal for determination of his seniority vis‑a‑vis Major (Recd.) M. Matlub Khan, the respondent No. 3.

2. The case of the appellant is that he joined the Intelligence Bureau as a Deputy Assistant Director (BPS‑17) on 25‑10‑1974 on his selection to the post by the Federal Public Service Commission. He was promoted as an Assistant Director (BPS‑18) with effect from 15‑4‑1982. The respondent Major (Retd.) M. Matlub Khan (hereinafter referred to as the respondent No. 3) took over as an Assistant Director in the Intelligence Bureau on 1‑7‑1978 on his secondment from the Ministry of Defence initially for the period of two years. Subsequently, the duration of his secondment was extended from time to time until he retired from the Army service on 15‑2‑1983. His service in the Intelligence Bureau was extended on contract for a period of three years. The period of his re‑employment on contract was extended from time to time up to 1988. In the revised provisional gradation list published on 11‑8‑1986, the name of the appellant was mentioned at S.No. 11 in the list of the Assistant Directors. The name of the respondent No. 3 was not mentioned therein. By Notification dated 6‑12‑1988, the respondent No. 3 was absorbed in the Intelligence Bureau as an Assistant Director with effect from 16‑2‑1983. Again by another notification dated 16‑5‑1989, the date of the absorption of the respondent No. 3 as Assistant Director was ante‑dated to 1‑7‑1978. Thereafter, a revised gradation list (provisional) of the Assistant Directors (BPS‑18) was published on 8‑1‑1990, wherein the name of the respondent No. 3 was shown above the name of the appellant. The appellant preferred appeal on 20‑2‑1990 against the placement of the respondent No. 3 above his name. The Establishment Division did not accept his appeal and such decision contained in Office Memorandum dated 11-3-1990 was communicated under Intelligence Bureau U/O No. 7/C/74‑(517)‑II, dated 22‑3‑1990. The appellant preferred this appeal on 17‑4‑1990 for determination of the seniority.

3. The main grounds urged by the appellant are that the respondent No.3 had joined the Intelligence Bureau on his secondment from the Army and he remained in the Bureau until he retired from the Army on 15‑2‑1983 and he was thereafter appointed in the intelligence Bureau on contract basis and he continued serving as such until 1988 and his absorption in the Intelligence Bureau was against the rules for appointment in the Intelligence Bureau and also against the policy of induction of the Army personnel in the civil service and his absorption in the Bureau with retrospective effect either from 30‑6‑1978 or from 15‑2‑1983 was illegal and without lawful authority.

4. The appeal is directed against the Government of Pakistan through the Secretary, Establishment Division, and the Secretary. Defence Division, as the respondent No. 1, the Director, Intelligence Bureau as the respondent No.2, and Major (Retd.) M. Matlub Khan as respondent No.

3. All the three respondents have opposed the appeal. The respondents 1 and 2 have filed written objections through the Deputy Director Admn, Intelligence Bureau. The respondent No. 3 has filed written objections separately. The respondents 1 and 2 have stated in their written objections that the respondent No. 3 was absorbed in the Intelligence Bureau with effect from 16‑2‑1983, the date on which he retired from the Army and his absorption was ante‑dated to 1‑7‑1975, the date he had joined the intelligence Bureau under the directions issued from the Prime Minister's Secretariat under U/O No. 3‑3/SO‑A‑B/89, dated 13‑3‑1989 and he was assigned seniority accordingly.

5. The contention of the respondent No. 3 in his written objections is that he was appointed to the Intelligence Bureau by transfer under the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules. 1973 with effect from 1‑7‑1978 as per directive from the Prime Minister's Secretariat and in the first notification of his absorption the date was 16‑2‑1983 on which he had retired from the Army service, and the date of his retirement was revised later to be 1‑7‑1978 and a revised notification of his absorption with effect from that date viz. 1‑7‑1978 was issued and his absorption was in accordance with the relevant rules and orders. He has advanced the legal plea that the appeal is time‑barred.

6. The learned counsel for the appellant reiterated the same grounds stated in the memo of appeal and urged further that the respondent No. 3 joined the Intelligence Bureau on secondment from Army and he could not be absorbed in the intelligence Bureau either under the appointment rules or under the Army personnel induction in civil service policy. He further contended that the respondent No. 3 retired from the Army service on 15‑2‑1983 and he was thereafter re‑employed on contract basis and the service on the contract could not be converted into regular service. According to him, even if the respondent No. 3 were absorbed in the Intelligence Bureau on his retirement from the Army service on 15‑2‑1983, the date of his absorption could not be ante‑dated to 1‑7‑1978 as he was in active service in the Army and the date of his retirement could not be ante‑dated as to find way for his absorption in the civil service. On the other hand, the learned Standing Counsel representing the respondents 1 and 2 stated that the absorption of the respondent No. 3 in the Intelligence Bureau with effect from 1‑7‑1978 was made in pursuance of the directive from the Prime Minister's Secretariat in the circumstances disclosed in Office Memorandum dated 11‑3‑1990. The learned counsel representing the respondent No. 3 contended that the absorption of the respondent No. 3 was made under the orders of the competent authority and his absorption was not challenged in time. He further contended that the absorption of the respondent No. 3 in the Intelligence Bureau was covered by Part III of the Induction Policy published in ESTACODE (1989) at page

164. According to him, the appointment of the respondent No. 3 in the Intelligence bureau was in accordance with Rule 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 on the basis of the Intelligence Bureau notification dated 3‑3‑1976. He placed reliance on a case reported in. PLD 1991 SC 143, relating to the terms and conditions of service of a Major. He also cited various authorities as regards the powers of the Government regarding appointments in civil service. He vehemently urged that the appeal is time -barred.

7. The main undisputed events for determination of the seniority of the appellant as against the respondent No. 3 are the date of appointment and promotion of the appellant and those of the entry of the respondent No. 3 in the Intelligence Bureau and the subsequent orders passed for his absorption in the Bureau. They are‑‑ The appointment of the appellant as Deputy Assistant Director (BPS‑17) on 25‑10‑1974 ‑‑ The promotion of the appellant as Assistant Director (BPS‑18) with effect from 15‑4‑1982 ‑‑ The appointment of the respondent No. 3 in the Intelligence Bureau on secondment from the Army service with effect from 1‑7‑1978. The retirement of the respondent No. 3 from the Army on 15‑2‑1983 and his continuity in service by his appointment on contract with effect from 16‑2‑1983 ‑‑ Notification of absorption of respondent No. 3 as Assistant Director (B‑18) with effect from 16‑2‑1983 issued on 6‑12‑1988 ‑‑ The absorption of the respondent No. 3 ante‑dated to 1‑7‑1978 vide notification dated 16‑5‑1989. All the events referred to above excerpt the last one i.e. the ante‑lotion of absorption of the respondent No. 3 in the Intelligence Bureau from 1‑7‑1978, fortify the contentions of the appellant that he stands senior to respondent No.

3. It is only the notification dated 16‑5‑1989 whereby the respondent No. 3 was conferred absorption as the Assistant Director in the Intelligence Bureau with effect from 1‑7‑1978 that has caused grievance to the appellant. The appellant has challenged the absorption of the respondent No. 3 on the grounds that he could not be absorbed while serving in the Army as the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 do not envisage absorption in the Bureau from outside; and secondly the respondent No. 3 could not find place in the Intelligence Bureau even by way of induction after his retirement from the Army. As regards his first objection, reference may be made to the methods, qualifications and other conditions for appointment to posts in Grade‑17 and above in the Intelligence Bureau. The Intelligence Bureau was established in 1975. The rules which were operating in the year 1978 were notified on 3‑7‑1976. They provided that appointments to the posts of Assistant Directors could be made by promotion to the extent of 25%, by deputation or secondment or transfer upto 40%, and by direct recruitment for the remaining 40%. It was further provided that appointment by transfer including on deputation/secondment could be made from amongst the persons holding appointments on regular posts, in the same grade in which the posts to be filled in existed, provided the persons possessed the qualifications and experience prescribed for direct recruitment or promotion to the post. It was also provided that the persons serving in the Intelligence Bureau on transfer, who had rendered minimum approved service for three years, could be absorbed permanently against the direct recruitment quota and on the recommendation of the Selection Board and with the approval of the appointing authority: The rules of 1976 were superseded by the rules notified on 25‑10‑1981 (hereinafter, referred to as the 1981 Rules). These Rules provided that 50% posts of the Assistant Directors could be filled by promotion, 40% posts by transfer and 10% posts by direct recruitment. The rules further provided that the appointment by transfer could be made from the persons holding appointments on regular basis in the same grade in which the posts to be filled in existed, provided the persons concerned possessed the qualifications/experience prescribed for direct recruitment or promotion to the post concerned. Significantly, the mode of appointment by absorption was not provided in these Rules. These 1981 Rules held the field uptil December, 1984 when they were repealed by the fresh rules notified on 24‑12‑1984 (hereinafter referred to as the 1984 Rules). These Rules provided that the posts of Assistant Directors could be filled by promotion to the extent of 60% and by deputation upto 33% and by direct recruitment the remaining 7% posts. The rules further provided that the persons serving on deputation in the Intelligence Bureau having put in at least three years continuous service could be considered for absorption against the same post held by him and in the direct recruitment quota either at the discretion of the Bureau, in the public interest, or on receipt of a request from the individual concerned officer at his initiative subject to the recommendation by the Departmental Selection Committee and approval of the competent authority. The rules further provided that the persons absorbed in the aforesaid manner were to reckon their seniority from the dates of their absorption. The absorption of the respondent No. 3 in the Intelligence Bureau was, in the first instance, made with effect from 16‑2‑1983 when the rules of 1981 were in operation, and there was no provision therein for appointment by absorption. Of course, there was provision in the 1976 Rules for appointment by absorption of those persons who had served in the Intelligence Bureau on deputation/secondment for at least three years and possessed requisite qualifications. The respondent No. 3 joined the Intelligence Bureau by way of secondment on 1‑7‑1978 and he could not be absorbed in the Intelligence Bureau earlier than the completion of his three years service and subject to the condition that he possessed requisite qualifications. Thus, the respondent No. 3 could not rind his absorption in the Intelligence Bureau with effect from 1‑7‑1978 under the 1976 Rules which were in the field at the relevant time. He could not find his absorption even with effect from 16‑2‑1983 as there was no provision of absorption in the then existing rules of 1981. This is one aspect of f he case.

8. The second aspect of the case to be examined is whether the respondent No. 3 could find permanent footing in the Intelligence Bureau by way of induction. The induction of Army personnel in the civil service policy was issued on 10‑2‑1980, published in ESTACODE (1989) at page

164. The induction policy lays down three modes of entry of officers of Armed Forces in the civil service. In the first category is the induction of young officers of Armed Forces of Pakistan upto eight years commissioned service in accordance with the provisions contained in Chapter 11 of the policy. In the second category for induction in the civil service are the officers of the rank of Major or equivalent, who were to retire or had retired on completion of the prescribed age or service limit in the manners and procedure provided there for contained in Chapter III of the policy. In the third category are the officers of the rank of Major or equivalent who were to retire or had retired before completion of prescribed age or service limit and the retired officers of the rank of Lt.‑Colonel and above and equivalent who could be absorbed by re employment in accordance with the provisions of Part IV of the policy. The case of the respondent No. 3 did not fall in, the first category of the young officers. The respondent No. 3 held the rank of a Major in the Army at the time of his secondment to the Intelligence Bureau. He retired from the Army service on 15‑2‑1983 on completion of requisite service in the Army. His case for induction in the civil service on his retirement from the Army was, therefore, to be regulated in accordance with Part III of the policy. His induction was to be made thereunder through the High Powered Selection Board that was to be constituted by the President for the purpose. He could count his seniority in the grade in which he was inducted from the date of his induction. As regards his induction from 1‑7‑1978 from which date he sought his retirement from the Army, he was deemed to have retired prematurely and his induction was to be regulated in accordance with the provisions of Part IV of the policy, which provides that the officers of the rank of Major or equivalent who retired or may have retired before completion of the prescribed age limit or service were eligible for re‑employment on contract for three to five years renewable upto the age of sixty on the terms and conditions mentioned therein. The terms and conditions laid down thereunder provide that the re‑employed officers will not have any seniority and would not find place on regular gradation list. In that eventuality, the respondent No. 3 could not have the benefit of induction in the Intelligence Bureau and he could be treated to have been appointed on contract. He could not have even that much benefit as the induction policy was issued on 10‑2‑1980. In fact, his appointment on contract after his retirement from the Army in 1983 was in keeping with law that prevailed at that time and the case of his induction seems to have been processed keeping aside the relevant rules and orders and the legal position does not seem to have been highlighted in submitting the case to the competent authority for obtaining orders.

9. The legal position portrayed above would show that the respondent No. 3 was not eligible for induction in the civil service at any time much less after his appointment in the civil service on contract after his retirement from the Army service in the year 1983 and he is not entitled to have any place in the seniority list.

10. The respondent No. 3 has challenged the maintainability of the appeal and also raised the question of limitation on the grounds that the order of induction of respondent No. 3 was issued on 6‑12‑1988 which was substituted by notification dated 16‑5‑1989 but neither of the two notifications was appealed against and the appellant has based his appeal on the publication of the provisional seniority list. Reliance has been placed on a case reported in 1985 SCMR 1954. The orders of induction of the respondent No. 3 did not give cause of action to the appellant until the respondent No. 3 was assigned seniority above the appellant in the seniority list issued on 8‑1‑1990. The appellant did make representation on 20‑2‑1990 and his representation was turned down as per Office Memorandum dated 11‑3‑1990, which was conveyed to him under letter dated 22‑3‑1990. The appeal filed on 17‑4‑1990 is, therefore, within time. Thus, there is no legal lacuna in the maintainability of the appeal and it has been filed within the period of limitation.

11. The appellant has sought the relief of setting aside the notification dated 16‑5‑1989 against which he did not prefer departmental appeal nor did he prefer appeal to this Tribunal against that order. That relief cannot be granted to him. The other relief sought by him is that he may be declared senior to respondent No. 3 as Assistant Director, Intelligence Bureau and the order dated 8‑1‑1990 where under the impugned seniority list was circulated may be modified accordingly. In view of the reasons recorded above that the respondent No. 3 cannot have place in the seniority of the Assistant Directors in the Intelligence Bureau, the appeal is allowed to the extent that the respondent No. 3 shall not override the seniority position of the appellant amongst the Assistant Directors, Intelligence Bureau and the appeal stands disposed of accordingly No order is made for costs. A.A./678/Sr.F Appeal partly accepted.