1984 PLP (C (PLC(CS))

ABDUR RASHID (MEMBER).‑Facts Of this case, briefly, are that the appellant joined service as Section Officer in Grade 17 on 20th February, 1976 as a direct entrant through the F.P.S.C. competitive examination. The said examination was held in March/April, 1975 in batch No. XV.

2. A combined seniority list of Grades 17 and 18 officers, both direct entrants and promotees, was circulated vide Establishment Division O.M., dated 18th September, 1979. Feeling aggrieved as to his emplacement in the sand seniority list, the appellant preferred a departmental appeal to the Secretary, Establishment Division, on 13th October, 1979, which was turned down vide Establishment Division O.M., dated 22nd December, 1980 on the grounds that being a direct recruit of 1976 batch, the appellant had been assigned seniority correctly below promoted officers whose appoint ments had been regularised in 1976.

3. The appellant filed his present appeal on 4th February, 1981 against the impugned letter of Establishment Division, dated 22nd December, 1980 claiming seniority over respondents No. 1.11 to 406 (less 38, no longer in ser vice due to various reasons).

4. The learned State counsel raised two preliminary objections at the very outset. First that the appellant had not preferred any appeal to the President of Pakistan and had therefore, not exhausted the departmental remedy which rendered his appeal incompetent under section 4 (1) (a) of the Service Tribunals Act, 1973. And second that the appellant had come to the Tribunals against the 1979 seniority list, which was provisional and had been superseded by the one issued in 1981.

5. Replying to the objections, the learned counsel for the appellant said that the impugned list had been circulated under the signature of the Deputy Secretary concerned and the appellant had preferred an appeal to the next higher authority who, in this case, was the Establishment Secretary and, as such, the appeal was competent. Continuing further, the learned counsel said the seniority list of 1979, which is now being dubbed as provisional, was, actually, final because promotions had been made on the basis of the said list and this is the factum of its being a final list.

6. The learned Supreme Court judgment dated 30th August. 1981, in appeal No. K‑106/79 had laid down that an appellant must exhaust his departmental remedy (including an appeal to the President of Pakistan where necessary). The relevant portion of this judgment has been repro duced in appeal No. 17 (R)/1976, (Muhammad Riaz v. Secretary, Establish ment Division). We had dismissed Appeal No. 17 (R)J1976, vide our judg ment dated 8th March, 1982 with the direction to file a fresh appeal after complying with the learned Supreme Court dictum. This was done by Muhammad Riaz. However, his appeal (to the President) was held to be time‑barred and it was, thus, never put up to the President. This futile exercise cost Muhammad Riaz an additional period to seventeen months and a good deal of money and labour, before his appeal could be finally disposed of by us in August, 1983. The spirit of the learned Supreme Court's dictum presupposes that a determinative order would be passed by the President, where an appeal is addressed to him. This did not happen in the case of Muhammad Riaz and we have no reason to believe that it would not be so in the case of the present appellant and that an appeal from him would be treated differently from that of Muhammad Riaz. We do not, therefore, wish the appellant to embark upon an exercise which produces no results. 1n case we were to dismiss the appeal before us, on a mere technicality, then apart from what has been said, it would cost the appellant a good deal of expenditure and a further delay which, we feel, is avoidable. Since we are Tribunal that has been created with tire express purpose of providing speedy cheap and substantive justice to the aggrieved civil servants and since we are, also, sure that an appeal to the President in this case would yield no result beyond the impugned letter of Establishment Division, we shall take it that the spirit of the learned Supreme Court judgment has been complied with, for no other reasons, then at least for our belief that the Establishment Division O.M., dated 22nd December, 1980 rejecting the departmental appeal of the appellant would remain in tact. We shall, therefore, treat the present appeal to be competent before us.

7. As to the objection of the learned State counsel that the 1979 list was a provisional seniority list, against which no appeal lay, we would refer to our judgment in Appeal No. 197(R) 1980 (Muhammad Anis Khan v. Chairman, CRG and others) wherein relying on section `C' seniority serial No. 125 Estacode page 106 paras. 3‑4 we had held that only the first list would be treated as provisional and all subsequent lists would always be Final. We would once again reproduce the said paras. 3‑4: "

3. The first issue of the gradation list should be marked "provi sional". It should be circulated to the officers concerned and objec tions or representations invited. Mistakes, which may be brought to notice may be rectified by the Ministries and Divisions and any general point raised in the representations may be examined and dis posed of in consultation with the Establishment Division. There after, the gradation list will be issued as final.

4. A copy of the provisional list may be sent to the Establishment Division also for record. Representations should be disposed of expeditiously and the gradation lists finalised as early as possible." We know that the 1979 seniority list, which is impugned, was not the first list and that seniority lists before this had already been issued. As such, we hold the 1979 seniority list to be final and the present appeal against it, therefore, maintainable. We expect that such hollow objections would not be raised before us as a routine because it is now a well‑settled principle of law and is based on the instructions of the respondents them selves and reproduced above.

8. Continuing further, the learned counsel for the appellant laid great emphasis on the fact that even though the examination of batch XV, in which the appellant qualified was held in March/April, 1975 under the C.S.S. (Class 1) Rules, 1965 (hereinafter to be referred to as the Rules, 1965) and he was appointed on 20th February. 1976 these vacancies were, actually a carry over for the year 1974. If the appellant was appointed as late as 20th February, 1976 it was no fault of his. To a question from us, the learned counsel replied in the affirmative that he expected seniority from 1974 but to another question that if there was any manner or method of giving the appellant his seniority before his actually joining an appointment, we would like to know. The learned counsel had obviously, no answer. We, therefore, repelled this highly specious argument. It is clear that the appellant shall be deemed top have been appointed w.e.f. 20th February, 1976 and we need not concern ourselves with any impediments or hurdles which delayed his appointment.

9. The learned counsel for the appellant relied on section 8 (4) of the Civil Servants Act, 1973 (hereinafter to be referred to as the Act). It lays down "Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade:" Since the respondents had not been regularly appointed as Section Officers, argued the learned counsel, they could not claim seniority from any date, which to this day, was not known because they had been and continued to be ad hoc appointees for the simple reason that no regular posts were available to ad hoc Section Officers, who qualified in the promotional exa minations of 1967 and 1969 including the Section Officers of the said exami nations, who were declared successful by revising the standards (in consulta tion with the F.P.S.C.) and who have now been shown separately at (iv) and (v) of para. 4 of the O.M. dated 27th January, 1975 (hereinafter to be referred to as the O.M.) dealing with the initial composition of the O.M.G. The learned counsel drew our particular attention to para. 6 of the O.M. and said that since the respondents from serial 111 to 262 and particularly those from serial 263 to 406 had never been appointed regularly, the appellant had a legitimate claim of seniority over them. "

10. The learned counsel for the State aided by the departmental re presentative strongly pleaded in favour of the O.M. and termed it as having attained the force of rule thereby superseding the Rules, 1965. They also took the stand the O.M.G. was a new service governed by the O.M. and that it was not a successor to the former C.S.S.

11. Before we record our conclusions as to the averments of the two sides, it is essential to go into the legal position taking into one sweep, the Act, the Rules, 1965 and the, O.M.

12. We reproduce paras. relevant for our purpose of O.M.G., serial 10, as contained at pp. 575 to 578 of Estacode 1979. Para. 4 reads "Initial composition of the group in respect of posts in Grade 17 and above. The following officers including those who are on temporary deputation outside the Federal Secretariat shall be included in the group on its initial constitution viz. (i) Section Officers who already stood encadred in the former C.S.S. Cadre through notifications issued from time to time. (ii) Section Officers who were eligible to be encadred but notifications could not be issued before the abolition of the C.S.S. Cadre. (iii) Section Officers directly recruited by F. P. S. C. till the end of 1974. (iv) Ad hoc Section Officers who qualified in the promotional examina tions of 1967 and 1969 but who could not be adjusted on regular basis due to non‑availability of posts in the departmental quota. (v) Ad hoc Section Officers who appeared in the promotional examina tions of 1967 and 1969 and were cleared by revising the standard in consultation with the F.P.S.C."

13. Para. 6 reads "Placing of ad hoc Section Officers on regular footing. Ad hoc Section Officers other than those mentioned at clauses (iv) and (v) of para. 4 above, are liable to be replaced by F.P.S.C. qualified Section Officers. Such of them as are not replaced will be required to take Section Officer (Qualifying) Examination to be conducted by the F.P.S.C. Not more than two chances to clear the examination will be allowed. Final clearance will be given after taking into account the marks obtained by them in the Qualifying Examination, service record and the vacancies available at the time. Such of them as are cleared finally will be placed on regular footing. Those who do not clear it will be reverted."

14. Para. 7 reads. (a) "Grade

17. In future 2/3rd of the vacancies'1of Section Officers in Grade 17 may be filled by direct recruitment through F.P.S.C. (b) The remaining 1/3rd of the vacancies shall be filled by promotion of the departmental eligible candidates through a promotional examination. (c)

15. Para. 12 reads (a) "Separate Division‑wise seniority lists would be maintained for all posts in Grades 1 to 16 as hitherto on the basis of continuous re gular officiation in the grade. (b) All officers of Grade 17 will be borne on one combined seniority list to be drawn up in accordance with the following principals . (i) Those Section Officers who were eligible for regular appoint ment as such under the former C.S.S. Rules shall, as a class, rank senior to other Section Officers. Their inter se seniority shall be fixed in accordance with the provision of the said rules. (ii) The inter se seniority of Section Officers other than those mentioned in (i) above shall be determined on the basis of the date of regular continuous officiation as Section Officers. (c) Seniority in Grade 18 and above will be determined in each Grade from the date of regular continuous officiation in each Grade."

16. Para. 13 reads "General. The existing provisions of C. S. S. Rules (Annexure 1) and Section Officers (Probation, Training and Seniority) Rules, 1964 Annexure If will continue to be in force to the extent they are not in conflict with the provisions of this Office Memorandum. However, this shall not be construed to limit or abridge the powers of the competent authority to issue new rules and instructions or revisions of the existing ones or to deal with cases of members of group in such manner as may appear to be just and equitable."

17. The conclusions with regard to the law position which we have arrived at. are as follows. First, the O.M. which is being brandished as a substitute for the rules does not actually, possess this force because there is no evidence to suggest that the O.M. was ever assented to by the President or any person authorised by the President in this behalf as required by section 25 of the Act. The O. M. was, therefore, never sanctified or consecrated to become the rules. It remains a mere O.M. For para. 13 of the O.M. to assume an air of superiority vis‑a‑vis the Rules, 1965 is therefore, totally misplaced. As a natural corollary to what we have just said, the Rules, 1965, are, thus very much alive. They could have been superseded or annulled only through RULES and not via the easy expedient of the O. M. Second, since Rules, 1965 are in the field, the O.M. can co‑exist only to the extent to which any of its provisions are not inconsistent with the Rules, 1965. Third, if any of the provisions of the Rules, 1965, are not consistent with the provisions of the Act, the latter shall, naturally, prevail. Fourth, the Act, the Rules 1965 and the O.M. ought to be harmonised and reconciled as far as possible. Where this becomes difficult, then the authority to prevail shall be in this order of validity : the Act, the Rules, 1965 and lastly the O. M. Following from this unimpeachable legal position therefore, the O.M. had no authority, whatever, to modify the quota of direct recruits vis‑a‑vis the promotees, as laid down in the Rules, 1965 which will remain in tact i.e. at 80 : 20, between direct recruits and the promotees. Fifth and last, there are inconsistencies in fixation of seniority between the Act on the one hand and the Rules, 1965 the O.M. on the other.

18. As regards seniority, section 8 (3) of the Act says: "Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed." Section 8 (4) of the Act says: "Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appoint ment to a post in the grade: Provided that civil servants who are selected for promotion to a higher grade to one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade." We find that the rules to be prescribed with regard to section 8 (3) of the Act, have not been prescribed to this day even though more than a decade has elapsed since the promulgation of the Act. In the absence of such rules, the Rules, 1965 shall be applicable to the extent to which they are not incon sistent with the Act. Rule 13(4) of the Rules, 1965 lays down that "seniority of promotees vis‑a‑vis direct recruits shall be fixed in accordance with the principle that promotees as a class shall be senior to direct recruits of the same year." Similarly, para. 12(b) (iii) of the O.M. (page 586 of Estacode) says "the promotees officers of a particular year shall as a class be senior to the direct recruits of that year .." On the other hand, section 8 (4) of the Act, grants seniority from the date of regular appointment to a post. When the Rules, 1965 and the O.M. say that the promotees, as a class, of a particular year are to rank senior to the direct recruits (who would retain their own inter se seniority), we find this to be clearly violative of the Act wherein section 8 (4) lays dawn that the seniority is to take effect from the date of regular appointment to a post. We, therefore, hold that as enshrin ed in the Act, the seniority assigned to the appellant in the impugned seniority list and based on subordinate legislation is inconsistent with the, superior legislation and must, therefore, give way to the Act. 18‑A. Having reached the conclusion that appellant's claim of seniority has a sound legal basis, we find that this claim can be broken down into two parts. We shall first deal with his claim of seniority over respondents Nos. 111 to 262 followed by respondents Nos. 263 to 406 (in the impugned seniority list).

19. As regards appellant's claim over respondents Nos. 111 to 262, it would be as well to quote the reply of the Establishment Division which says: " ...., Section Officers at Sr. No. l 1 l to 406 of the seniority list are of two categories. Section Officers from Sr. No. 111 to 262 had appeared in the Section Officers' promotional examinations held in 1967 and 1968 and were declared successful. These officers were appointed Section Officers on temporary/ad hoc basis due to want of vacancies in the promotion quota. After the constitution of the O. M. G. on 27th January, 1975 these officers were regularly inducted vide clause (iv) and (v) of para. 4 of the O.M. No. 1‑2‑75‑ARC, dated 27th January, 1975. The appellant was regularly appointed on 20th February, 1976. As such he has no claim of seniority over these officers as their regular appointment is prior to that of the appellant," And further: "The officers at Sr. Nos. 111 to 262 do not fall within provision of 2/3rd and 1/3rd of the vacancies. Their appointments were regula rised with effect from 27th January, 1975 whereas the appellant was appointed on 20th June, 1976 as a direct recruit. There is therefore, no dispute of seniority between these two categories." We shall accept the plea of the respondents without prejudice to the right of the appellant. We make this observation due to the fact that no gazette notifications have been made available to us which could show that respondents 111 to 262 have been appointed regularly with effect from 27th January, 1975. The O. M. cannot be a substitute for a gazette notification.

20. As to appellant's claim over respondents 263 to 406, was shall again advert to the written reply of the Establishment Division which says: " Section Officers at Sr. Nos. 263 to 406 were appointed on ad hoc basis during 1972 to 1974 due to exit of former East Pakistani Officers. A provision was made vide para. 6 of O.M., dated 27th January, 1975 constituting the O.M.G. for regularising the appoint ment of these officers. After they had qualified the Section Officers' qualifying examination, their appointment was regularised in July, 1976." And further "Officers at Sr. No. 263 to 406 are within the promotion quota and are rightly shown senior to the appellant as under the existing rules, pro moted officers as a class rank senior to the direct recruits of the same year." And yet further "The quota of 1/3rd and 2/3rd is to be counted with effect from 27th Jan uary, 1975 and on the basis of total cadre strength of Section Officers fixed at the time of constitution of O.M.G. The officers regularly in ducted vide para. 4 of O.M. dated 27th January, 1975 aye to be deducted from the total strength i.e.

937. The balance of the posts shall be divided according to the ratio of 1/3rd and 2/3rd which duly fall within the prescribed quota."

21. We go by the respondents' assertion that two‑third/one‑third quota did not apply before 27th January, 1975 and that it was for future recruit ment and close this matter here without prejudice to any future adjudication on this issue.

22. The total number of the respondent officials (263‑406) comes to

144. The XVth batch direct recruits have been shown from serial 407 to

435. Their total number works out to 29 only. By adding 144 and 29 regular appointees of 1976, we get the figure of 173 meaning that there were 173 Regular vacancies for the year 1976. Computing this figure into quota on the basis of the O.M., the ratio of allocation of vacancies between direct recruits and the promotees comes, respectively to 115:

58. Since, however, we hold that the quota of 80: 20 as laid down in the Rules 1965, is in tact, the number of vacancies which should have been rightfully shared by the two sides on 80: 20 (direct: promotees) would be' 130:

43. We find that against the direct vacancies of 130, only 29 direct recruits of XVth batch have been appointed leaving one hundred and one of their vacancies in tact. It would have been, perhaps, acceptable if the promotee S.Os. had been allowed to work against those 101 vacancies (meant for direct recruit) on ad hoc basis. To us, however, it seems that in addition to 43 vacancies, as worked out by us, against which promotees could have been regularly appointed, the Establishment Division have allowed the direct recruits vacancies numbering one hundred and one to be utilized by the promotees over and above their legal share of 49 and have appointed all of them regularly. This has been done not only at the cost of XVth batch but also at the expense of direct entrants of the future years. We cannot help remark ing that the order of quota system appears to have been reversed. If the promotees of the year 1976 were to rank senior to the appellant, although the legal position dictated by the Act is otherwise, even then only 43 pro motees falling within their quota of 1976 regular vacancies could have been placed above the appellant and NOT 144.

23. On the basis of our calculation on 80 : 20 quota, only 43 respon dents (Sr. 263 downwards of the impugned seniority list) could have been regularly appointed. Any respondent officials falling outside this quota cannot be appointed regularly, the gazette notification of 6th of July, 1976 notwithstanding.

24. As regards appellant's claim of seniority over respondents 111 to 262 and dealt with at para. 19, we are sure the Establishment Division would issue the desired gazette notifications immediately but only after obtaining the approval of the competent authority if this approval does not already exist. In case, however, this desired action is not taken within three months of the issue of our present judgment, the appellant may come to the Tribunal, after exhausting the departmental remedy should he so desire.

25. As a result of the foregoing analysis, we have come to the con clusion that the quotas, on the face of it, have been thoroughly mixed up. Despite this situation, we have no doubt that the appellant has to be placed above respondent No. 263 and below 262 because he was regularly appointed on 20th February, 1976 whereas the said respondent was so appointed from a later date viz. 6th July, 1976 and since, according to the Act; the seniority reckons from the date of regular appointment, the appellant must rank senior. The appellant belongs to batch No. XVth. It would be only appropriate that due to acceptance of his appeal by us, all his batch mates are given their rightful places in the seniority list with their inter se seniority as at present.

26. Of the respondent officials, M/s. Ijaz Hussain Shah, Tasawwur Ali Khan, Zafar Tabassum, S. H. Naqvi, Jamil Ahmed Karimi, Ahmed Hussain Malik, Muhammad Tahir Mansoor, Harun Ahmed, M. Aslam Tariq, Fazal Karim, and G. A. Siddiqui filed their written replies. In addition M. Ijaz Hussain Shahs counsel was also heard on the subject. While writing this judgment, therefore, we have taken into consideration the view point of the above‑mentioned respondents. This order is, however, ex parte against other respondents who were neither represented nor did they file any written statement before us.

27. Before concluding, it appears pertinent to say a few words about the quality of staff work that appears to have gone into compilation of the seniority list 1979. Page 1 gives seven columns. These are: serial, name, date of birth, date of first appointment in Government service, date of appointment in earlier grade, date of appointment as Section Officer and present posting, but these columns are not numbered. The said columns which one would expect to follow uniformiy (because the column headings appear on the first page only) are numbered but not always. A good many pages bear neither the column headings nor the column numbers to match the head ings. The columns are varied between six and eight without any appropriate headings. Information should be so tabulated that it can be easily followed by everyone including the Tribunal. Page 107 of Estacode gives a pro forma for gradation list which provides seven columns and it is to be followed, as the instructions say.

28. A good deal of information against certain officers is not filled in. Even though officers from serial 263 to 406 are said to have been regularly appointed there is no mention against them that they were so appointed w.e.f. 6th July, 1976 although this list was circulated three years after their services were placed on regular footing.

29. A comparison by us of the gazette notification, dated 6th July, 1976 (made available to us) with the seniority list 1979, reveals that the names of the following officers which appear in the said notification are now here to be seen among respondents 263 to 406 Sr. No. Name 9 Mr. S. M. Amin Mufti 49 Mr. S. M. Yasin 52 Mr. Shah Mahmood 54 Mr. M. Ishrat Hussain 55 Mr. M. Badruddin 113 Mr. Saeed Ahmad Khan 121 Mr. Asghar Ali 128 Mr. Khaliluddin

30. The following names appear in the seniority list but we could not locate them in the gazette notification Sr. No. Name 284 Mr. M. S. Kidwai 378 Mr. Wali‑ul‑Hasnain Siddiqui 397 Mr. Shaukat Elahi

31. The appointments of the following officers have been notified vide notification, dated 9th October, 1977 (made available to us) but they have been placed above the appellant as well as some of their own colleagues who have been appointed vide gazette notification, dated 6th July, 1976. The reasons for this phenomenon may be known to the compilers of this list. Also while filing their written reply in February. 1982 this disparity appears to have gone unnoticed in the Establishment Division: Sr. No. (of 1979 List) Name 280 Ziaul Islam 312 Saghir Ahmed 313 I. H. Sanani 314 M. Yasin Khan 316 Nazir Ahmed 317 Abdul Aziz 398 Sher Zaman 399 Raisul Haq 400 M. A. Butt 401 M. Ataurrahman 402 Shaukat Elahi (It seems that Shaukat Elahi has appeared twice in the list at serials 397 and 402)

32. All that we would like to say by way of comment on the quality of work is that seniority lists deserve to be treated with greater respect.

33. Ordered accordingly with no costs.

34. Parties be informed. A. E. Order accordingly.