1995 PLP 1840 (SCMR)

SALEEM AKHTAR, J: ‑‑The appellant with the leave of this Court has challenged the judgment of the Federal Service Tribunal, whereby his appeal against the seniority fixed in BPS‑18 with effect from 23‑4‑1987 in the Office Management Group, was dismissed.

2. The appellant who was serving as Assistant Director BPS‑18 in the Directorate‑General Inter Services Intelligence was transferred by Notification dated 23‑4‑1987 and posted on deputation for a tenure of 3 years as Section Officer in the Ministry of Industries in his own basic pay scale and was to be reverted to his parent department on expiry of the deputation. Earlier on 19‑6‑1984 before his transfer the appellant had been promoted to BPS‑18 by Notification dated 19‑6‑1984 with effect from 7‑12‑1983. The appellant assumed charge of the post of Section Officer in the Ministry of Industries Islamabad on 7‑5‑1987. While he was working as such, by Notification dated 26‑5‑1990 he was appointed as Section Officer in the Office Management Group (OMG) in public interest. On 9‑10‑1990 a gradation list was issued by which his seniority was reckoned in OMG as Section Officer with effect from 23‑4‑1987. The appellant filed representation against this seniority list and claimed seniority with effect from 7‑12‑1983 when he had been promoted to BPS‑18 in his parent department. The representation was rejected. The appellant then made representation to the Prime Minister which was also not accepted and reference was made to Establishment Division's O.M. No.8/17/90‑OMG‑I dated 28‑1‑1991, which reads as follows:‑

"Officers appointed as Section Officers by transfer in the Office Management Group are assigned seniority in accordance with the following approved principles:‑‑ (i) Officers in basic pay scale 17 or 18 who joined Federal Secretariat as Section Officers initially on deputation and were subsequently appointed by transfer as Section Officer in the same scale in the OMG have been assigned seniority as Section Officer in Scale 17 or. 18, as the case may be, from the date they joined the Federal Secretariat as Section Officers on deputation. (ii) Officers in basic pay scale 17 who joined Federal Secretariat as Section Officers on deputation in BPS‑17 and subsequently promoted to BPS‑18 in their parent cadre while on deputation to Federal Secretariat have been assigned seniority on their appointment by transfer as Section Officer in BPS‑18 from the date on which they were promoted to BPS‑18 while on deputation."

3. The appellant filed appeal before the Federal Service Tribunal which was dismissed by the impugned judgment. Leave was granted to consider whether the Tribunal was justified in dismissing the appeal by relying on paragraph 12(b)(ii) of the Office Memorandum No.l/2/75‑ARC, dated 27‑1‑1975 as according to the appellant his case was covered by paragraph 12(c) of the said O.M.

4. Mr. Munir Peracha, the learned ASC contended that the seniority in Grade 18 should have been determined from the date of regular continuous officiation on that grade. To support his contention the learned counsel referred to paragraph 12(c) of the Office Memorandum which reads as follows:‑‑ "Seniority in Grade‑18 and above will be determined in each Grade from the date of regular continuous officiation in each Grade."

5. The Tribunal was of the view that appellant's seniority could be reckoned with effect from 7‑12‑1983 on the strength of section 8(2) of the Civil Servants Act (hereinafter referred to as the Act) read with the provision of paragraph 12(c) of O.M. dated 27‑1‑1975 only if he had remained in the Directorate‑General Inter Services Intelligence and that his promotion as Assistant Director BPS‑18 in his parent department has no relevance for the fixation of his seniority as Section Officer in the O.M.G. which is entirely a different occupational group. The Tribunal sought support from paragraph 12(b) of the O.M. No.l/2/75‑ARC dated 27‑1‑1975 but as pointed out by the learned counsel for the appellant it refers to all officers of Grade‑17 and not to officers of Grade‑

18. Section 8 of the Act prescribes the principles for determination of seniority as follows:‑‑-- "

8. Seniority: ‑(1) For proper administration of a service, cadre of post, the appointing authority shall cause a seniority list or the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be. (2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service or cadre whether serving in the same department or office or not, as may be prescribed. (3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed. (4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post."

6. The learned counsel correctly contended that the present case is not governed by subsection (3) or (4) but by subsection (2) of section 8 of the Act which requires rules to be framed for determining the seniority in cases as before us. But as no rules have been framed, guidance has to be sought from the practice, administrative orders passed in such cases and also the precedents by which the seniority of officers on transfer from another service to OMG is being determined. 'In Nazir Ahmad Qureshi v. Pakistan and others (PLD 1959 (W.P.) Karachi 92), Kayani, CJ. observed: "There are no rules of seniority governing this department, and we should, therefore, be guided by the rule of practice the rule of continuous officiating service and the rule of confirmation." Therefore where there are no rules for determining the seniority in any department one of the guiding rules will be the practice followed by such department.

7. The learned Deputy Attorney‑General has referred to the O.M. Of 1975 and contended that the O.M.G. was constituted as another occupational group by the said O.M. under the control of Establishment Division. This O.M. laid down broad framework of rules and procedure for the administrative control of the group. It provided for the composition of various grades, the working strength of the Section Officers, future recruitment, training, appointment by transfer and promotions. Paragraph 12 provides procedure and principle for determination of seniority. Sub‑para. (d) of para. 12 provides as follows:‑‑ "(d) Officers appointed by transfer will be assigned seniority in accordance with Civil Servants Act and the rules framed thereunder." The appellant was appointed by transfer to O.M.G. therefore his case will be governed by sub‑para (d) and not by sub‑para. (c).

8. The admitted position has emerged that the Civil Servants Act requires determination of seniority to the principles laid down by the rules framed under it but no rules have been framed. Therefore in the absence of rules applying the principles for determining seniority as discussed above, in our view, reliance can be placed on the O.M. quoted above. According to O.M: No.8/17/90‑OMG‑I dated 28‑1‑1991 quoted in para 2 above, officers in the pay scale of 17 or 18 who had joined Federal Secretariat as Section Officers on deputation and were subsequently appointed by transfer as Section Officers in the same scale in the O.M.G were given seniority from the date they joined the Federal Secretariat as Section Officers on deputation. The promotion to Grade‑18 in the parent department was not to be taken as the cut off date for purposes of determining the seniority in the O.M.G. The appeal is dismissed. A.A./M‑3107/S ????????????????????????????????????????????????????????????????????? Appeal dismissed