1995 PLP (C (PLC(CS))

(Sd.) M.I.K. KHALIL, Establishment Secretary." The summary was submitted through the Adviser to the Prime Minister for Establishment who recorded the following minutes on 11‑11‑1989: "Selection Board No., 1 at its last meeting approved Mr. Mohibullah Shah, amongst others, for promotion to Grade‑

21. The main case is being kept pending for finalisation of the lateral entry scheme and allocation of vacancies. However, since Mr. Mohibullah Shah is working against a post of Additional Secretary and doing important job m the Prime Minister's Secretariat, I recommend that his promotion may be considered as a special case. Since he has already been approved for promotion, there is no bar to his immediate For orders please. (Sd.) RAO ABDUR RASHID KHAN, Ad‑visor to the Prime Minister for Establishment. Gen. Nasirullah Khan Babar, Special Assistant to the Prime Minister, Prime Minister's Secretariat,. Islamabad:" The Special Assistant to the Prime Minister recorded the following note: "Recommend approval as i~ has hanging fire for long time." Finally, the 'rime Minister approved the Summary on 13‑11‑1989 where after the Notification of promotion of the appellant to BPS‑21 as Additional Secretary, with effect from 17‑12‑1988, was issued. The foregoing events go to show that the case of the appellant for promotion to BPS‑21 was processed by the Establishment Division through CSB‑I, after taking into consideration all factors, e.g. orders of the Prime Minister, outstanding service career of the appellant and his lower position in the seniority, and finally the recommendations of the Establishment Division were approved by the Prime Minister. This order was further given‑'effect to by giving seniority to the appellant in BPS‑21 from the date of his regular promotion to BPS‑21, from 17‑12‑1988, and this position was reflected in the seniority lists issued since 1989 till 1993 wherein he was shown senior to the respondents on the basis of his date of regular promotion in BPS‑

21. This fact is further corroborated by the Establishment Division in its Office Memorandum No. 6/34/88/CP.2, dated 17th October, 1990, whereby the appellant was informed that he had been assigned seniority in BPS‑21 from the date of his regular promotion with effect from 17‑12‑1988. The office memorandum is reproduced hereunder: "Subject: REPRESENTATION REGARDING GRANT OF SENIORITY With reference to his application dated 24‑11‑1988, on the above subject, Syed Mohibullah Shah is informed that his request for seniority has been considered in the Establishment Division. It is stated that his seniority had been correctly fixed as Joint Secretary (BPS‑20) under the existing rules. However, on promotion as Additional Secretary (BPS‑21) in the Secretariat Group, he has been assigned seniority with effect from the date of. his promotion i.e. 17th December, 1988 which is also in accordance with the rules. (Sd) Malik Gulab Khan, Section Officer. Syed Mohibullah Shah, Additional Secretary, Government of Pakistan. Prime Minister's Secretariat (Public) Islamabad. It, therefore, follows that according to the Establishment Division the seniority of the appellant from the date of his regular promotion in BPS‑21, i.e. 17‑12‑1988, had been settled and‑there can be, no caval about it.

7. Although the question of seniority of the appellant in BPS‑21 with effect from 17‑12‑1988 stood settled in 1989/1990, as stated above, but the past and closed chapter was reopened by the Establishment Division when Mr. Syed Shahid Hussain, one of the private respondents in this appeal and has not contested this appeal but made earlier a belated and time‑barred representation on 30th May, 1993 to the Secretary, Establishment Division for grant of seniority over Mr. Syed Mohibullah Shah. This representation was made in the context of Gradation list of BPS‑19 to 22 Officers of the Secretariat Group issued in MaN1. 1993. wherein the names of the appellant and that of Mr. Shahid Hussain appeared at S. No. 43 and 71 respectively. The matter was examined in the Establishment Division and the Section Officer (CP‑2) on 23‑1‑199‑1 submitted a detailed Summary of the case to the Deputy Secretary (('P‑2) who in his note dated 1‑2‑1994 observed that the question of limitation should have been mentioned in the note in clear terms and returned the file to Section Officer (CP‑2) for doing the needful. The Section Officer again examined this aspect of the case and observed that the representation made by Mr. Syed Shahid Hussain, in real sense, was not against seniority position but it seems to have been made against out of turn promotion of Mr. Mohibullah Shah in the garb of appeal for correction in the seniority list. It was stated that 'previously the Gradation List of Secretariat Group Officers was issued in April, 1990 and Mr. Shahid Hussain knew his placement vis‑a‑vis the appellant, but at that time he had not made representation for his seniority position, therefore, the representation now made by him was badly time barred. This note was submitted to Deputy Secretary, who recorded that the representation was badly time‑barred and we may inform the officer accordingly that he is free to go to FST or other Court of law, if he is not satisfied. The case was marked to Joint Secretary (CP) who agreed with the above observations and marked the file to Additional Secretary (CP). The Additional Secretary (CP) overruled the objection raised in the notings and observed that there was no question of time bar as there was no substantive order and on 9‑2‑1994‑returned the file to Joint Secretary (CP) with certain observations. Thereafter, nothing happened. However, the Additional Secretary, at his own, on 15‑2‑1994, prepared a note seeking approval of the Secretary for correction of error and the reflection of seniority in the new Gradation List strictly in accordance with law and the rules, but he overlooked altogether the factual position that Mr. Shahid Hussain did not agitate his grievance at the time when he had been placed below Mr. Mohibullah Shah in the Gradation Lists since 1990 and his appeal was patently time‑barred and was not worth consideration. He did not file any appeal before the Tribunal also against his relegation in seniority position. However, the file was submitted to the Secretary who after discussing the matter with the Additional Secretary on 20‑2‑1994, approved the proposal vide minute dated 21‑2‑1994 and the result was that the entire structure was upset by relegating the appellant in seniority position, by taking the plea that error was to be corrected. We are sorry to say that it was not a case of correction of error, but a case of withdrawal of a right accrued to the appellant and acted upon for long years.

8. The departmental representative and also the learned Advocate on behalf of respondent No. 3, had taken the point that the Establishment Secretary was competent to review the case although this is not the position as is evident from the nothings, and we would like to deal this point now. On this, I refer to a case reported in PLD 1970 1 (Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others), wherein their Lordships ‑have held as under: This is equally true in case of review, because both appeal and / review, though they differ in scope, are substantive rights. As such, neither of them is available unless it has been conferred by law." In the Civil Servants Act, 1973 or the rules made thereunder, there is no provision for review with regard to seniority, although the seniority lists are being prepared from time to time but they are subject to objections. This view is also fortified by the judgment of the Hon'ble Supreme Court reported in PLD SC 94 (Muzaffar Ali v. Muhammad Shafi) wherein it has been held that "right of review is a substantive right and is always a creation of the relevant Statute on the subject:" We do not agree with the view point expressed by the respondents, especially when the record shows that the same authority was asked to correct the error after six years which was not justified without giving opportunity of hearing to a person who was enjoying his seniority without any hindrance. It may also be observed that the approval by Secretary on the noting of the Additional Secretary is not in the context of representation of Mr. Syed Shahid Hussain but on the pretext of correction as if it was error. The note of the Additional Secretary is as follows: "... The case of seniority of Mr. Mohibullah Shah (Secretariat Group BS‑21) has been under consideration for some time in this Division, largely because we tend to overawed by the names. The facts of the case are recounted below:‑ (i) Mr. Mohibullah Shah was junior to a number of officers in the Secretariat Group. He was `selected' for promotion to BS‑21 on an individual basis based on Prime Minister's directive (page 74/C ‑ Flag `A') read with minutes of C.S.B. dated 21‑3‑1989 (Flag `B'). The minutes indicate that it was a C.S.B. meeting specially convened for him; (ii) The law, rules and consistent dicta of the Courts require that for posts upto BS‑21, officers can only be considered in the order of their seniority. Other officers senior to him had to be considered, promoted, superseded or deferred in accordance with the rules. This was not done and officers senior to him remained `Not Considered; (iii) The principle of seniority in such cases where virtually out‑of‑turn promotions are granted without giving consideration to eligible seniors has already been settled in Establishment Division in the case of Mr. Inayat Ali etc. in 1990. The detailed reasons with the final decision may be perused at pages 77‑79/C. In all such cases, the senior officers are to be treated as deferred, and on promotion to the next grade/BS, they are to retain their earlier seniority vis‑a‑vis juniors in terms of section 8 of the Civil Servants Act, 1973; (iv) Establishment Division has committed an error in continuing to show Mr. Mohibullah Shah as senior to the officers who were his seniors and who were promoted without supersession at any stage. The officers who were so senior and promoted in the very first meeting of the Central Selection Board after the `single‑individual oriented' meeting of the Board dated 21‑3‑1989' have been indicated at Annexure I. Consequently, we must correct this error and reflect the officers at Annexure I as senior to Mr. Mohibufah Shah in BS‑

21. Only 2 officers will be shown junior to Mr. Mohibullah Shah out of the officers in Annexure I, i.e. Messrs Ilyas Lodhi and Rana Rifat Saeed, as both were superseded in the first Board meeting.

54. Approval of the Secretary is solicited to the correction of the error, and the reflection of seniority in the new Gradation List strictly in accordance with the law and the rules. (Sd.) EJAZ RAHIM Additional Secretary 15‑2‑1994." It is clear that in this note true facts were not put on record. In all fairness, the Additional Secretary at least should have highlighted that the Establishment Division in 1990 itself had settled the seniority of Mr. Mohibullah Shah to be reckoned from 17‑12‑1988, the date of his regular promotion as Additional Secretary, which he enjoyed for sufficiently a long period of six. years. Furthermore, in the opening paragraph of the note, reproduced above, it has been staled that question of seniority of‑Mr. Mohibullah Shah has been under consideration is contrary to the facts as this question had finally been settled in 1990, on the basis of which Office Memorandum No. 6/34/88/CP.2, dated 17th October, 1990, which has been reproduced in extenso in the preceding paragraph 6, was issued. Therefore, it is clear that action for change of seniority of Mr. Syed Mohibuilah Shah was not taken on the representation of Mr. Syed Shahid Hussain, but suo motu by the Establishment Secretary, who had already decided the matter in‑ October, 1990. In these circumstances, in view of the above‑quoted judgments of the Hon'ble Supreme Court, he had no power to review its own orders, for which there was no specific provision for review. It is a settled law that once vested right is accrued and enjoyed, the law of locus poenitentiae comes in operation and that right cannot be withdrawn. On this, there are a number of authorities, but we would like to refer to PLD 1969 SC 407 and 1992 SCMR 1420 (Muhammad Nawaz v. Federation of Pakistan and others). In the last case, it was held by the Hon'ble Supreme Court that the services of certain officers having been regularised and confirmed by a competent Authority, such order could not be rescinded or recalled as it had created valuable rights in favour of those officers. The present case of the appellant is on the better footing as in this case, the appellant was promoted to BPS‑21 as Additional Secretary on regular basis, after due selection through the Central Selection Board‑I, and with the approval of the competent Authority viz. the Prime Minister, and since it was a regular promotion, his seniority had rightly been determined. in accordance with the provisions of section 8(4) of the Civil Servants Act, 1973, and this view is in consonance with the judgment of the Supreme Court reported in 1993 SCMR 609 (Federation of Pakistan v. Rais Khan) wherein it has been held: ' "... In this connection, reference may be made to section 8 of the Civil Servants Act, 1973, which relates to seniority. Subsection (4) of section 8 provides that seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to the post. Accordingly, for purpose of seniority in a particular grade, regular appointment is the determining factor." and the consequential effect of such an order could not be snatched by a subordinate authority, i.e. the Establishment Secretary on his own, when none of the respondents filed any appeal, but only by the Prime Minister, who was the appointing Authority in this case and his relegation to lower position in the seniority is illegal and without lawful authority and is not sustainable. ‑

9. Although respondent No. 3, Mr. Rifat Askari, has not filed objections, yet the appeal was resisted by his Advocate Mr. Shah Abdur Rashid, at the time of regular hearing. An objection was raised on his behalf that since the appellant has been promoted to BPS‑22, he should have no cause of grievance as Additional Secretary. We do not agree with this kind of argument as it is the right of every civil servant to agitate his grievance whenever any adverse order is passed against him and in this case the seniority of the appellant in BPS‑21 C has been upset, as discussed above, and the appellant did have a cause of action to agitate before this Tribunal and the appeal is competent. Moreover, Mr. Rifat Askari had not challenged the seniority of Mr. Mohibufah Shah since 1991 and even the last seniority list issued in 1993, because he was satisfied and as such did not agitate the matter. Therefore, the objection is repelled. Similarly, the other objection that Mr. Mohibullah Shah was promoted as a solitary case is also riot tenable because Mr. Rifat Askari did not file any appeal against the promotion of the appellant.

10. The appellant has filed an application under section 5 of the Limitation Act for condonation of delay, notice whereof was sent to the respondents. None of the‑ respondents has filed rejoinder in rebuttal, nor have they taken the specific objection of limitation in the Objections and even at the, time of arguments. In these circumstances, we feel that there are good grounds for condonation Sof delay and allow the application, which is supported by affidavit, and condone the delay, if any, in filing the appeal before the Tribunal.

11. Upshot of the above discussion is that Mr. Syed Mohibullah Shah was promoted on regular basis as Additional Secretary (B‑21) with effect from 17‑12‑1988 and in the subsequent years he was enjoying the seniority which was never challenged by any respondent including Mr. Rifat Askari, respondent No. 3 herein. The representation of Mr. Syed Shahid Hussain was not only time‑barred but he accepted the seniority lists upto 1993, therefore, under the D well‑known principle of locus poenitentiae, vested rights having been created in favour of the appellant, could not be withdrawn. The question of seniority of the appellant was finally settled by the Establishment Division in 1990 and this chapter, as stated above, could not be reopened, and the same authority could not review the case. The file was not sent to the Prime Minister, who is the competent Authority. With great hesitation we have to say that true facts were not considered while upsetting seniority of the appellant. Furthermore, the appellant was not given notice and has been condemned unheard. We, therefore, accept the appeal and restore the seniority of the appellant as Additional Secretary (BPS‑21,) from the date of his regular promotion viz. 17‑12‑1988, as reflected in the Gradation lists from 1990 to 1993, with all consequential benefits. No order is made for costs.

12. This order is ex parte against private respondents 2 to 35, except respondent No. 3 Mr. Rifat Askari, as none of the private respondents contested the appeal by filing Objections or attending the hearing. H.B.T./1072/Sr.F Appeal accepted.