1983 PLP 546 (SCMR)

(2) Special reports for the period from January, 1960 to September; 1960 with the specific entry whether the Section Officer concerned is fit to be continued or should be reverted. (3) Annual confidential report for the year 1959. The petitioners, except for that they failed in the examination held by the Public Service Commission in 1960, otherwise fulfilled the requirement for continuance in office as Section Officers. They were given another chance to appear in the examination in 1961 but they failed again. They, however,‑continued to serve as Section Officers in view of the departmental recommendations that those Section Officers who have , failed to pass the examination even in the second attempt but are found sufficient and physically fit may be allowed to continue as Section officers but without encadrement. Afterwards, the Government decided under Memorandum No. 5/7/ 76‑C.III(A), dated 19‑8‑1976 that "the Section Officers who failed to qualify in the Serving Section Officers Examination held during 1960‑61 and in respect of whom it was decided that they would continue to serve as temporary Section Officers without encadrement are also eligible to appear in the Promotional Examination for purpose of regular appointment as Section Officers" and "they will be allowed seniority amongst regular Section Officers from the date of regular appointment after having qualified in the Examina tion." Petitioners appeared at the Section Officers' (Qualifying) Examination conducted, by the Federal Public Service Commission in November, 1976 and were thus "placed on regular footing" under Notification 5/7/76‑C.III(A)(ii), dated 9‑10‑1977 issued by the Establishment Division of the Cabinet Secretariat, Government of Pakistan. Their claim to the seniority in service from the date of their original appointment as Section Officers was rejected in the departmental appeals and they then filed separate appeals to the Federal Service Tribunal. These appeals were dismissed by the consolidated judgment dated 25‑10‑1982 for the reason that petitioners in spite of having failed in the examinations held in 1960 and. 1961 were allowed to continue as Section Officers as a concession granted to them and "it did not confer any right to them." It was submitted before the Tribunal on behalf of the petitioners that they are entitled to be included in the Central Secretariat Service when it was originally constituted under the Central Secretariat Service (Class I) Rules, 1965, and that they had, in fact, been actually so included, but in the subsequent list their names were wrongly omitted. It was further pleaded that after they failed in the second examination held in 1961, they made representation to the President, whereupon it was decided that their cases will be considered again in consultation with the Federal Public Service Commission, and afterwards they having been cleared by the Commission were retained in service on regular basis. The Tribunal on detailed examination of the record rejected these submissions on the ground that the cases of unqualified Section Officers found efficient and fit were examined by the Cabinet, and it was finally decided that they may be allowed to continue as Section Officers but "should not be encadred in the Central Secretariat Service." Their continuance in service, in the opinion of the Tribunal, was a concession, and not a right, granted to them. Mr. Bashir Ahmad Ansari learned counsel for the petitioners raised almost the same pleas in support of these petitions as were advanced before the Tribunal. After having gone through the record before us we find that no exception can be taken with the view that has prevailed with the Federal Service Tribunal, for, at no time until petitioners successfully cleared the Section Officers (Qualifying) Examination conducted by the Federal Public Commission in November, 1976, they were encadred as Section Officers, although they continued in those posts in view of the decision of the Government, from time to time, that those promotee Section Officers who had failed to pass the Examinations in 1960 and 1961 but were found efficient and physically fit may be allowed to continue as Section Officers. In this behalf, the recommendation made by Secretaries' Committee in respect of cases of Section Officers such as the petitioners may be usefully reproduced hereunder :‑ "Unqualified Section Officers who are found efficient and physically fit may be allowed to continue as Section Officers without being encadred in the Central Secretariat Service. In the case of inefficient non qualified Section Officers, the Ministries/Divisions concerned may examine whether action should be initiated to retire them on comple tion of 25 years of service." The Establishment Division while submitting the recommendations of the Secretaries' Committee to the Cabinet offered the following comments: "The Establishment Division feels that non‑qualified Section Officers in this context should cover only those Section Officers who have not been considered fit for regular retention." According to the parawise comments forwarded by the Government to the Tribunal if respect of the Memorandums of the Appeals filed by the petitioners, the intention of the Establishment Division was to exclude from the encadrement only those Section Officers who had failed to qualify the examinations and who had also not been recommended by the Federal Public Service Commission on scrutiny of their Annual Confidential Reports: The recommendation of the Establishment Division was, however, not accepted by the Cabinet which decided in January, 1968 that :‑‑ "Promoted Section Officers who failed to pass even in the second attempt in the Serving Section Officers Examination should not be encadred in the Central Secretariat Service." In view of this decision of the Cabinet, petitioners' claims .to the seniority on the basis of Rule 5(d) of the Central Secretariat Service (Class I) Rules, 1965 has, therefore, been rightly rejected by the Tribunal on the ground that they were not `declared' by the Government to be fit for retention in consultation with the Commission, as per requirement of the said rule. Petitioners' claim to the seniority on the basis of certain clarification made by the Federal Public Service Commission in their letter dated 4‑8‑1970 has also no valid foundation, for, as rightly pointed out by the Tribunal the said clarification was, at best, an advice or recommendation of the Commission, and in the absence of its acceptance by the Government, conferred no right in petitioners favour. For these reasons, both the petitions are dismissed in limine. Petition dismissed.