1993 PLP (C (PLC(CS))

SHAFIUR RAHMAN, ACTG. C.J.‑‑‑The petitioner seeks leave to appeal under Article 212(3) of the Constitution against the judgment of the Federal Service Tribunal dated 18‑10‑1992 whereby three service appeals pending before the Tribunal were disposed of by a common judgment observing as hereunder:‑‑ "....notification dated 11‑11‑1982 is set aside as being ab initio void and of no legal effect. Order dated 5‑12‑1989 to the extent of respondent No.4's promotion in the Investigation Group and the consequential seniority list of 2‑5‑1991 are also set aside, with a direction that he may be shown in the seniority list of the officers of Legal Group in accordance with rules and with reference to his promotion in Grade‑17 with effect from 15‑7‑1981. It 's ordered that the appellant may be considered for promotion to Grade‑19 with effect from the relevant date in accordance with law." As this is an illustrative case of indiscipline and illegalities in handling service cases, the facts are narrated in some detail.

2. The petitioner was ad hoc employee of the Ministry of Religious Affairs in the Federal Secretariat when he applied for the post of Assistant Director, F.I.A.--a post in Grade‑

17. He directly approached the then President of Pakistan, got the recommendation for his appointment from him and reported to the Director‑General, F.I.A. The Director‑General being not competent under Service Rules to make the appointment in Grade‑17 appointed him in Grade‑16 but entrusted him the duties of the post of Grade‑

17. The orders which issued in December, 1975 showed that his appointment was being made on the post of Assistant Director/FIA (Legal) (Grade‑16) Multan Circle, Multan, w.e.f. 27‑8‑1975 and that he was to be on deputation from the Ministry of Religious Affairs. When the Ministry of Religious Affairs pointed out that being an ad hoc employee in that Ministry he could retain no lien and could not be on deputation, the appointment order was altered on 12‑3‑1976 and his appointment in Grade‑16 was not made on deputation or transfer but on ad hoc basis as Assistant Director (Legal) in Grade‑

16. It appears that at the same time the petitioner had applied to the Public Service Commission for recruitment in Grade‑17 as Assistant Director and the Public Service Commission had by its letter dated 8‑1‑1977 informed him as hereunder:‑‑ "Subject: Recruitment to the posts of Assistant Directors. Grade‑

17. Federal Investigation Agency; Dear Sir, With reference to your application for the post mentioned above, I am directed to say that the Federal Public Service Commission regrets that it has not been possible to select you for interview for the above post, as you lacked qualification/experience/ age criteria.

3. In 1981, the petitioner filed a Service Appeal (No.113‑R of 1981) before the Service Tribunal. He claimed that his initial appointment be treated as in Grade‑17 and all the benefits of Pay, Seniority etc. should be allowed to him. This appeal was allowed only to the extent that pay of the post the duties of which he discharged was allowed to him but not the other benefits. As regards the further reliefs, it was observed hereunder: "The appellant in his appeal also claimed seniority, but at the time of arguments he contended that his was an isolated post and his interest does not conflict with any other officer. Anyhow, since other Grade‑17 officers have not been made party, we do not pass any order with regard to appellant's seniority vis‑a‑vis others." 4‑ This order of the Tribunal somehow came to be interpreted in a manner to result in notification dated 11‑11‑1982, in the following words: "No.3/90/76‑FIA‑II: ‑In partial modification of this Ministry's Notification No. 3/90/76‑FIA‑II, dated 20th July, 1981, Mr. Khadim Hussain is appointed as Assistant Director (Grade‑17), Federal Investigation Agency, Islamabad, on regular temporary basis, with effect from 27th August, 1975 and until further orders." This notification of 11‑11‑1982 was, however, cancelled by another notification dated 7‑3‑1985, as here under:‑‑ "No.3/90/76‑FIA‑II: ‑This Ministry's Notification No.3/90/76‑FIA‑II, dated 11th November, 1982 (which was in partial modification of this Ministry's Notification of same number, dated 20th July, 1981) appointing Mr. Khadim Hussain, as Assistant Director (BS‑17) on regular temporary basis, with effect from 27th August, 1975, is hereby cancelled."

5. This prompted the petitioner to file another Service Appeal (No.147‑R of 1985) before the Service Tribunal. The Service Tribunal dismissed the appeal holding that notification dated 11‑11‑1982 had issued without lawful authority and could lawfully be cancelled by the subsequent notification.

6. The petitioner preferred a petition for leave to appeal in this Court against the judgment of the Service Tribunal. The Government of Pakistan through Establishment Division and the Secretary, Ministry of Interior, who were arrayed as respondents Nos. l and 2 conceded the claim of the petitioner in this Court whereupon the petition was converted into appeal and an order in his favour was given on 29‑10‑1989. The request of some of the colleagues of the petitioner to be made party was rejected on the ground that they were not parties before the Service Tribunal.

7. The three colleagues of the petitioner whose applications for impleadment as party were rejected by the Supreme Court filed Service Appeals against the petitioner's seniority and promotion. These appeals were disposed of by the Service Tribunal with the observations already reproduced.

8. Mr. Muhammad Asif Jan, Advocate, the learned counsel for the petitioner and the petitioner himself both pointed to the sanctity and the finality of the Supreme Court judgment/order whereby the claim of the petitioner was established beyond challenge. On merits they supported the orders passed by the Government and the Supreme Court.

9. The first legal question raised in this petition is whether the judgment/order of the Supreme Court to which the colleagues of the petitioner had not been parties could bar their claim and operate as judgment in rem. This question has been considered at great length in the case of Pir Bakhsh represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145) and it was held that such orders/judgments do not operate as judgmsents‑in‑rem, that they bind the parties to the judgment and not those who are not parties.

10. The F.IA. (Appointment, Promotion and Transfer) Rules, 1975 provided by Rule 12 the following groups for purposes of direct appointment and promotion etc.:‑‑. "(i) Investigation. (ii) Accounts. (iii) Customs. (iv) Income‑tax. (v) Engineering. (h) Legal." The petitioner belonged to the "Legal group". It was expressed to be so and he was at all stages dealt with as such.

11. The Federal Public Service Commission (Function) Rules, 1978 provide for recruitment to posts in Grade‑17 through the Public Service Commission and not otherwise. The Public Service Commission had rejected the petitioner for appointment to Grade‑17 post considering him ineligible due to lack of experience criteria. Their rejection letter has been reproduced in para. 2 of the judgment. In such circumstances the Government could not recruit or appoint the petitioner to Grade‑17 post from the date that he took over charge in the F.I.A.

12. As regards the scrutiny and clearance of the case by the Public Service Commission under section 12‑A of the Civil Servants Act, that related to his suitability with regard to Grade‑16 post on the recommendation of the President of Pakistan and not with regard to his initial appointment in Grade‑17.

13. No case is made out for leave to appeal which is here by refused. M‑BA./K‑223/S Petition dismissed.