2001 PLP (C (PLC(CS))

Date of hearing: 19th May, 1997. JUDGEMENT MUHAMMAD HAYATULLAH KHAN SUMBAL (MEMBER),

The appellant who is an M.B.A. 1st Division from the University of the Punjab, holds an M.Sc. degree in Tourism, Planning and Development from the University of Surrey, England and a Certificate in Tourism Promotion from Japan and England 'was appointed Assistant Chief BPS‑18 in the Tourism Division Government of Pakistan following his selection by the Federal Public Service Commission vide Notification No.3 (2)/82‑A&E dated 24‑1‑1982, issued by the Ministry of Culture and tourism, Government of Pakistan, Islamabad. A seniority list was issued in which his name was shown at serial No.3. It is his case that on 20‑7‑1996, he was informed, for the first time, that ‑the competent authority had decided to treat him as surplus, and had accordingly approved his absorption against the post of Deputy Controller in BPS‑18 in the department of Tourism Services. In a tentative seniority list circulated vide letter dated 23‑1-1996 the appellant was shown at position No.4 below officers w o had joined service much after him and were thus, junior to him. His appeal against this fixation of seniority was rejected vide order, dated 18‑12‑1996. The present appeal is against that order.

2. Hafz Tariq Nasim and Mian Jafar Hussain, Advocates appeared for the‑appellant, Kh. Tariq Masood, Advocate appeared for the respondent department. Nobody represented the private respondents 3 to

5. Ex parte proceedings were, therefore, ordered against them.

3. It has been contended on behalf of the appellant that at no stage of his service was he ever informed that he had been declared surplus and would be absorbed in a capacity, which would adversely affect his seniority. He accepted the absorption order oblivious of the departmental design to relegate him to a junior position in the seniority list. It was for this reason that he did not challenge the order in time. If anybody had to be declared surplus it should have been officers who figured at the bottom of the seniority list, it was argued. Another objection taken was to the effect that Mr. Bangash respondent No.3 who does not belong to appellant's cadre should not have figured this seniority list. Similarly, Mr. S.M. Farooq, respondent No.4 and Mr. M. Mithal Lakho, respondent No.5 whose dates of appointment as BPS‑18 officers were 3‑3‑1988 and. 1‑6‑1991 respectively were junior to the appellant whose date of appointment in BPS‑18 in the department was 6‑1‑1982, it was argued.

4. It was contended on behalf of the respondent‑department that since the date of appointment of the appellant as. Deputy Controller, after absorption a such was 8‑8‑1995, he was junior to the private respondents as shown in the seniority list and his departmental appeal had rightly been rejected.

5. In the comments tiled by the department it has been stated that as a result of Economy Measures announced by the Government, in 1993, the Establishment Division reduced the sanctioned strength of the Culture. Sports and Tourism Wings, from the 364 to 262 employees. The department was, therefore, obliged to surrender, among others, 22 officers of BPS‑16 to 20, including the appellant. It was, however, not considered necessary in the "fitness of things" to inform the affected officers that they had been placed in Surplus Pool. The respondent‑department has also asserted that the Establishment Division had imposed, on the Ministries/Divisions no restriction to the effect that only the junior‑most persons in each category had to be declared surplus. The Ministries/Divisions enjoyed unfettered discretion in the matter and seniority was not regarded sole criterion, it was argued.

6. We find ourselves disinclined to agree with the respondent department's logic in concealing from the appellant the department s decision to place him in the surplus pool, a matter which was going to very seriously affect his future advancement in career. We fail to appreciate this perverse logic. In our view "fitness of things" lay in the disclosure of facts rather than their concealment, given that no state secret was involved. The department was obliged to inform the appellant that, for some good or bad reason, it had been decided to declare him surplus and that he was likely to be absorbed in another wing of the department in a different capacity, which would also alter his seniority position in the department.

7. The second limb of the argument also appears to be devoid of logic. The mere fact that the Establishment Division had not specifically instructed the Ministries/Divisions to ensure that only the junior most officers, were declared surplus cannot be taken to absolve the respondent‑department of its responsibility to ensure that the exercise was carried out judiciously, by application of independent mind, and keeping in view the principles of equity, justice, fairplay and good conscience. If the respondents had not decided the issue of surplussage, on the basis of seniority, what other principle had they followed which led them to declare the appellant surplus while retaining his earstwhile juniors. The appellant appears to be a fairly highly qualified person who was selected by the Federal Public Service Commission on the basis of merit. There is no complaint available on the record as to his performance and conduct during his tenure as Assistant Chief. At least none has been brought to our notice. We are, therefore, inclined to hold that the department does not seem to have followed any objective criterion while declaring the appellant surplus. It was in all probability, a mere pick and choose exercise. The universally acknowledged principle of last come first go also appears to have been lost sight of. In our view the absorption of the appellant did not amount to a fresh appointment and he seems to have continued his service without any break, in the same department in another capacity in the same grade and scale of pay. There was thus, no interruption in service and he should be deemed to have carried his seniority with him from the date of his first appointment into Government Service as Assistant Chief i.e. on 6‑1‑1982. Logically, therefore, he should rank senior to respondents Nos. 3, 4 and

5. Reliance or this is placed on 1990 PLC (C. S.) 25.

8. For what has been stated above, we accept this appeal set aside the impugned seniority list and direct the department to prepare a fresh seniority list in the light of the observations made in this judgment.

9. No order as to costs.

10. Parties be informed: H.B.T./236/St/F Appeal accepted.