1984 PLP (C (PLC(CS))

A. O. RAZIUR RAHMAN (MEMBER).‑This .appeal is against an order issued on behalf of the Secretary, Ministry of Defence, rejecting the Appel lant's representation against the final seniority list issued by the competent authority showing the seniority of the appellant as an Assistant and U.D.C. vis‑a‑vis Respondents Nos. 2 and

3. The rejection order was conveyed to the Appellant on 7th December, 1982. The filing of the appeal being within the statutory period prescribed, it was admitted for hearing, which took place on 12th September, 1983 and is being disposed of by this order.

2. After hearing the parties at length and perusing the relevant docu ments, we find that the appellant was appointed as temporary L.D.C. on 21st May, 1949 and after he had put in more than 17 years of service, he was promoted as U.D.C. with effect from 1st June, 1966 on regular basis, subject to probation for a period of 3 months. Later, on 3rd August, 1971 he was promoted as Assistant. Respondent No. 2 was also appointed as temporary L.D.C, about 16 years later, on 11th January, 1965. He, however, qualified the C.P.S.C. Examination and was appointed on regular basis, with effect from 15th November, 1966. Similarly, Respondent No. 3 appoint ed as Stenotypist on 22nd November, 1963 and on his passing the C.P.S.C. Examination for L.D.Cs. in 1965, he was nominated, on 15th November, 1966 against the post of L,D.C. in the Ministry of Defence. On 4th August, 1975 a provisional seniority list was circulated by the Ministry of Defence, showing the appellant at Serial No. 24, in the list of Assistants in the tem porary grade, while Respondents Nos. 2 and 3 were respectively shown at Sls. 18 and 19, as having been promoted to the Assistant grade on 18th November, 1969 and 2nd November, 1970, respectively. Since the Appel lant bad been promoted as U.D.C. on regular basis, with effect from 1st June, 1966 and Respondent No. 2 had been promoted as such on 1st October, 1967 while Respondent No. 3, who was already working as Stenotypist at the time of his regular appointment as L.D.C. and was thus in a higher grade, was allowed to continue as Stenotypist but no formal orders promot ing him as U.D.C. appear to have been made, the appellant represented against being shown junior as Assistant to these two respondents. His contention was that, being senior as U.D.C. to which post he had been pro moted even before the respondents were appointed on regular basis as U.D.Cs. he could not be treated as junior to the respondents, for the purpose of promotion to the rank of Assistant. He further contended that if for some reason or the other, he was left out for consideration at the time of promotion of Respondents 2 and 3 even though his own promotion took place later, that is, on 3rd August, 1971 as against 18th November, 1969 and 2nd November, 1970 of Respondents 2 and 3, his promotion, on his having been found fit should be treated as having taken place prior to that of these two respondents. He; accordingly, represented to the competent authority against having been shown junior to the two Respondents in the seniority list of Assistants. He also represented against not being shown in the list of per manent L.D.Cs although he had been appointed as L.D.C. as far back as on 21st May, 1949 without any terms and conditions to the effect that he was replaceable by an F.P.S.C. qualified candidate and, since Government had exempted temporary employees, who joined service before 13th December, 1964 from passing the F.P.S.C. Examination, he should have been shown in the seniority list of permanent L.D.Cs, because he had been appointed as such on promotion on 1st June, 1966. This representation of the appellant was not replied to and he followed it up with another representation on 6th Novem ber, 1975. Thereafter, on 18th September, 1976 the Ministry of Defence in formed him as under: " With reference to his representations dated 16th August, 1975 and 6th November, 1975 Mr. Haq Nawaz, Assistant is informed that his case was considered by the D.I.C. It is regretted that the points raised by him in the above representations could not be accepted."

3. Since the above decision was that of the D.P.C. and not of the com petent authority, he made a further representation to the Secretary, Ministry of Defence, on 22nd September, 1976 requesting that the matter may be re ferred to the Establishment Division for a decision. Failing to get reply, on 26th April, 1978 he made a request for an interview with the Secretary, Ministry of Defence. When there was no response to this also, he made a further request on 30th July, 1978. Thereafter, an interview was granted to him by the Additional Secretary, Ministry of Defence on 15th August, 1978 whereafter, on 16th August, 1978 he put in a detailed note explaining his case and requesting for confirmation as L.D.C. and U.D.C. and for promotion as Assistant, on the basis of his seniority. In reply to this, he was informed, after lapse of more than 2 years, on 29th September, 1980 that his application had been rejected and he was warned to refrain from making further representations on the subject. Thereafter, on the same dale, the appellant put in another application asking for clarification of certain points‑ In reply to this, he was informed by the Ministry, on 7th December, 1981 that the points raised by him were examined in consultation with the Establishment Division, who had ruled "that the F.P.S.C. quali fied L.D.Cs. being eligible for confirmation since 1966 rank senior to purely temporary L.D.Cs. who were declared eligible for confirmation in November, 1972 and ipso facto the F.P.S.C. qualified L.D.Cs. would take seniority over the latter category in the cadre of U.D.Cs and Assistants as well.

4. Aggrieved with the above order the official filed this appeal inter alia, on the following grounds (1) When the Appellant was recruited, no condition was imposed that he should pass ‑the F.P.S.C. Examination in order to be confirmed in his appointment, or that he would be treated as junior to F.P.S.C. qualified L.D.Cs. (2) He was promoted as U.D.C. on a regular basis, with effect ‑from 1st June, 1966 whereas Respondent No. 2 was promoted on 1st October, 1967 while Respondent No. 3 was never promoted as U.D.C. Therefore, there was no justification for considering the two respondents for promotion as Assistant earlier than the appellant. (3) The inter se seniority of the appellant and the two respondents in question was to be determined in accordance with the para. 8 of the Establishment Division O.M. No. 6/16/49‑ME, dated 2nd May, 1951 according to which the appellant was to be treated as senior in the grade of U.D.C. and, therefore, to be considered for pro motion as Assistant prior to these respondents.

5. All the respondents, namely, the Government of Pakistan, through the Secretary, Ministry of Defence, and the other two individuals, have con tested the appeal on the grounds, among others, that the C.P.S.C./F.P.S.C. qualified L.D.Cs. nominated by the Establishment Division were senior to all the unqualified L.D.Cs. regardless of their length of service; that if a vacancy occurred in the cadre of the U. D.' C., the senior‑most qualified L.D.C. was to be promoted, regardless of the length of his service ; that, as soon as the qualified L.D.C. was promoted as‑U.D.C. he became senior to all the unqualified U.D.Cs. promoted as such earlier; that, if a U.D.C. had to be reverted, the qualified L.D.C. promoted as U.D.C. would not revert, but, instead, the junior unqualified U.D.C. would revert as L.D.C. regard less of his length of service ; that; in the event of a vacancy in the cadre of Assistant, the qualified L.D.C. promoted as U.D.C. would be promoted as Assistant, regardless of the length of service ; and, that, if an Assistant was to be reverted the qualified L.D.C./U.D.C. promoted as Assistant later, would not revert, but, instead, the junior‑most of the unqualified U.D.Cs. promoted as Assistant earlier would revert, regardless of‑ his length of service as Assistant.

6. The stand taken by the respondents is so extraordinary and startling, being contrary to all notions of natural justice and common sense, that it can not be accepted without the supporting authority of specific law rules or instructions on the subject. No convincing authority was produced, on behalf of the respondents, in support of their stand, whereas, on behalf of the appellant it was pointed that the Appellant's appointment in 1949 was without any condition, and that when he was promoted as U. D. C. in 1966, regardless of the question whether he should have qualified at the F.P.S.C. Examination or not, he was entitled to being considered as U.D.C. with effect from the date of his promotion as such. Since the appellant was promoted in 1966 and Respondent No. 2 in 1967, while Respondent No. 3 was never promoted as U.D.C, the appellant could not be treated as junior in the U.D.C. rank to Respondents Nos. 2 and

3. In this connection, the instructions contained in SL No. 46, Chapter XX of the Establishment Manual Volume II are relevant. According to paragraph 8 thereof, those appointed on promotion from a lower grade to a higher grad were to be treated as senior to those appointed direct. In the instant ca both the appellant and Respondent No. 2 were promoted as U.D.Cs. from the lower grade. Since the appellant was appointed on an earlier date, he i to count his seniority earlier than Respondent No.

2. In view of this, should have been considered for promotion as Assistant earlier than Respon dents 2 and 3.

7. In this connection, reference to the Tribunal's judgment in Appeal No. 175 (R)/76, dated 12th March, ' Q79 is also relevant, wherein it was decided that the Appellant, who had joined as Assistant on promotion earlier than the respondent, was to be treated as the senior of the two. In the light of this decision of the Tribunal also, the Appellant is entitled to being treated as senior as U.D.C. to Respondents Nos. 2 and 3.

8. On the basis of the foregoing, we are of the view that the appellant, who joined service as a temporary L.D.C. in 1949 and was promoted as U.D.C. in 1966, as against Respondents 2 and 3, who entered service res pectively in 1958 and 1961 and one of whom only was promoted as U.D.C in 1967, while the other was never so promoted, could not be considered for promotion as Assistant later than these respondents. It must, therefore, be held that the impugned seniority list is defective, in that it relies on pro motions made on the basis of a faulty assumption of seniority in the lower grade whatever be the reasons for ignoring the appellant, at the time when the two respondents were approved for promotion since, subsequently, the appellant was considered and found fit for promotion, his promotion should have been ante‑dated with effect from the date of the promotion of the two respondents. The appellant having been left out of consideration at the proper time for no fault of his, he should not be made to suffer for some‑body else's fault. We, accordingly, order that the appellant, who was senior to the respondents as U.D.C. shall be treated, after his appoint ment as Assistant, as senior to them. The seniority list should, therefore, be amended accordingly.

9. With the above orders, the appeal is allowed.

10. No order as to cost.