2000 PLP (C (PLC(CS))

6. It is a fact that the Federal Public Service Commission had recommended the appointment of the appellants in October, 1995, and as a matter of general practice the recommendations‑ were to be implemented within a period of two months. This was the reason that after the expiry of the said, period the Federal Public Service Commission on 9‑1‑1991 and thereafter, the appointment orders were passed on 29‑1‑1996 issued a reminder. It is correct that the recommendations of the Federal Public Service Commission carries a lot of force as the said Commission exercises its authority under the Constitution and tile recommendations cannot be ignored or by passed by any other authority. However, it is also equally true that the recommendations of the Federal Public Service Commission are not the final appointment orders. Despite the weight it carries, it is still in the form of recommendation and has to be implemented by the concerned authorities after the consideration of various internal administrative and financial aspects. That is why that the letter of recommendation itself contains a provision that this communication should in no way be treated as an offer or guarantee of appointment, for which the final responsibility rests with the Government. Thus, there has been no precedent to hold that the date of recommendation by the Federal Public Service Commission should be treated as the effective date of appointment. The period of compliance with the recommendation within two months is also not available in any statute or rules. However, by practice and through instructions of the Federal Public Service Commission the recommendees are informed that if the offer of appointment from Government is not received within two months of such nomination; the matter be brought to the notice of the Ministry concerned and the Federal Public Service Commission. This abundantly shows that the recommendation has to be finally implemented by the Ministry and there is no law whatsoever to treat the date of recommendation as the date of appointment. Moreover, there had been a number of precedents where it has been held that the date of reckoing of seniority cannot precede the date of joining. Reference can be conveniently made to PLD 1988 SC 131 and 1993 SCMR 2258. Similarly the Seniority. Rules of 1993 provide that. Seniority will be reckoned from the date of joining in a particular grade or post. The appellants joined in January, 1996, and they want to persuade us that they should .be deemed to have joined in October, 1995, which is not only unprecedented in any law or rules but even there was not a single precedent in their favour that a person may be allowed to consider himself appointed prior to the date of actual appointment. It was repeatedly held that regular appointment is to be treated from the date the appointees take over the assignment and not from any date prior thereto.

7. The learned counsel for the appellant referred to certain judgments whereby the concept of appointment ‑in a batch was developed and interpreted and thereby the learned counsel had argued that since the appellants belonged to the batch of 1995, therefore; they should be deemed as belonging to the same batch without caring for the date of actual appointment or taking over. We are sorry to hold that all the said precedents are distinguishable in those cases a particular batch was notified for appointment (and not by nomination or recommendation only) in a particular year and some of the members of the batch joined immediately while certain others joined at a later stage. However, keeping in view the principle of determination of inter se seniority between the members of the same batch on the basis of the inter se merit it was held that those joining later will maintain their inter se seniority with the batch members on the basis of ‑their respective merits and their joining the Department late will not affect their inter se seniority adversely. Here is not the issue of determination of inter se seniority between a particular batch itself. None of the batch members joined in 1995. The process for selection was initiated in 1994 and the recommendations were finalized in 1995 and the offers of appointments were issued in 1996. None of the batch members B joined earlier than January, 1996. Therefore, it will be wrong to assume‑that it was a batch of 1995 or that they should be presumed to reckon their seniority with effect from any date in the year 1995.

8. Another point that was forcefully stressed at the bar was the allegation of mala fides against the respondents. It was argued that the appellants were recommended for appointment in 1995 but the actual appointment was delayed by almost over three months so that they should get their offer of appointment in 1996 and thereby they should become junior to the promotees i.e. private respondents, who were likely to be promoted in the latter months of 1996. Although the issue of mala fides has to be specifically mentioned against the particular respondents who have to be impleaded by names whereas in the instant case neither any official respondents has been impleaded by name who was responsible for the alleged male fides so that he could have been afforded the opportunity to meet the allegations. However, the simple delay for implementation of recommendation by three months is not at all sufficient to justify the allegation of mala fides particularly when the official respondents have sufficient justification to show that there was a legal defect in the four tier formula because the same had not been approved as yet by the cabinet and thus, it was not effective till so approved. This detection of a legal defect cannot amount to a proof of mala fides because in the absence of such an approval, by the cabinet under the rules of business, 1973 could have led the entire exercise of selection and promotion as an effort in futility if the issue was raised any time in a writ of quo warranto. Thus, instead of a proof of mala fides, it was demonstration of bona fide in favour of the appellants because prior to their dislocation from their, then available positions it was necessary to have the foolproof sanction of the cabinet about the percentage of quota and the proportionate fixation of posts in various categories. Recommendations of the Federal Public Service Commission are sometime delayed for several reasons but such a delay cannot be stamped as based on mala fides particularly when there was a plausible explanation available with the official respondents for such a delay.

9. It may also be mentioned that the appellants were never aggrieved by their delayed appointments. They were already working to their respective positions in their previous institutions. They competed for better prospectus and they were so recommended and after fulfilling the required pre conditions the offers of appointments were issued and they accordingly joined their new assignment in January, 1996 without any agitation or protest. Had there been any ground of mala fides, they should have agitated against their delayed appointments and they should have also accepted the offer of appointment under protest based on the said allegations of mala fides. Practically no protest was made because there was no grievance at all at that time. There was no grievance even for the next ten month. Had there been any proof of mala fides they should have sought their remedy just after their joining the new assignment. They were aggrieved for the first time not on their belated appointment as Associate Professors but for the promotion of the private respondents on 12‑11‑1996. It is a fact that the private respondents had been serving in the model institutions for a considerable long period with no prospects of promotion. The four‑tier formula was introduced in 1992 and it was not implemented for almost four years They being the original employees of the same department had a prior right to be promoted just on the availability of vacancies in BPS‑19 in 1992 but their promotions were intentionally delayed. Even after the matter was referred to the Federal Public Service Commission for direct recruitment and even after the finalization of recommendation and the issue of appointment orders. Thus, it was practically a right of private respondents to have agitated their delayed promotions and it was the mala fides of the official respondents by delaying the matter indefinitely for over four years in finalizing the case of their promotion. Instead of their agitation the appellants are aggrieved only for "belated" promotions of the private respondents. Thus, there was no element of mala fides against the official respondents to intentionally delay the appointment of the appellants for any bad intentions rather conversely the private respondents had suffered due to abnormal delay for which there is no cause before us.

10. At this stage, we may refer to an established principle of procedure whereby the posts in a higher scales are filled. It has been provided in the ESTACODE that whenever certain posts are reserved to be filled partially by promotion and partially by initial appointment then the quota reserved for promotion has to be exhausted prior to the process of initial recruitment. However, if these instructions are not complied with then the rights of the departmental candidates are further strengthened by another instruction that if the promotion takes place later than the direct recruitment, then the promotees of the same year should have precedents over the initial recruits of the same year. This principle has been upheld and applied by the Tribunal as well as the Honourable Supreme Court in so many cases and finally a conclusive decision has been made that "appointment of a direct recruit is always to follow the promotion and not to precede". The private respondents were serving in the department for a considerable long period and they were entitled to be adjusted against the promotion quota first and then the initial appointment against the rest of the vacancies could have been processed. However, the said process was initiated earlier and even the appointments were made earlier which amounted to injustice to the rights of the potential promotees. However, keeping in view the second protection with regard to the reckoning of seniority, they are likely to secure their positions in the Seniority Lists according to their rights:

11. The learned counsel for the appellant had also taken a stand that there had been discrimination at the time of appointment of the Associate Professors because prior thereto several lecturers were promoted as Assistant Professors and two officers were promoted as professors under the same four‑tier formula and prior to the approval by the cabinet. Thus, he wanted to assert that the Cabinet could also notify following the same precedent the appointment of the appellants in the last months of 1996 in anticipation of the approval of the formula. So, it was argued that the appellants have been treated discriminatively in their appointment. 'Discrimination' is a term used for the distinctive treatment between the two individuals or classes entitled to equal rights. In this case there was neither any entitlement nor was there any right which has been violated or discriminated. The appellants admit that any policy of the Government could not be acted upon unless the cabinet approved it. Announcement of a formula is only a proposal or a desire unless it is approved in accordance with the Rules of Business. If there was any irregularity in the promotion of certain lecturers or professors, it did not vest the appellants with, any entitlement or right and, therefore, the question of discrimination simply does not arise. One regularity does not justify its repetition for another one only on the ground of avoiding discrimination. Legal and regular vested rights when negated discriminatively can give a cause to an affected person but irregularities do not amount to discrimination.

12. Thus, in view of all these discussions we are unable to find any force in the claim of the appellants that they may be considered to be the appointees with effect from the date when they had no joined this service at all and more particularly there will be not force in the prayer that since their appointment was delayed for certain reasons, therefore, the promotion orders of the private respondents, issued ten months later, may be set aside. Hence H the claim of the appellants has no direct justification for the prayer made in the memorandum of appeal. Thus, we find no force, in any way, in the grounds of appeals and consequently all these appeals are hereby dismissed with costs.

13. Parties to be informed accordingly. (Sd.) Muhammad Raza Khan, Member. (Sd.) Abdul Razzaq A. Thahim, Chairman. (Sd.) Aftab Ahmed, Member (Sd.) Noor Muhammad Magsi, Member.

14. ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑I agree with my brother and want to add a few lines with regard to legal position. The appellants were directly recruited as Associate Professors (B‑19) and they claim seniority from the date of letter of recommendation, i.e. offer of appointment, dated 3‑10‑1995. Paragraph 2 of the said letter reads a5 under: " ..This communication should in no way be treated as an offer or guarantee of appointment, for which the final responsibility rests with the Government." According to this letter; the power of the appointment rests with the Government. The Ministry of Education notified the appointments of the appellants as Associate Professors (B‑19) with effect from 29‑1‑1996. My learned brother has already dealt with this question and it is a settled law that in the same year the ratio of seniority is in favour of the promotees vis‑a‑vis the direct recruits. So, on this ratio, the seniority f the appellants has correctly been determined, and this matter stands final settled in the F. judgment of the Supreme Court in the case of Fazal‑i‑Qadir v. Secretary, Establishment Division (PLD 1988 SC 131) and it has been held 'that promotees of the same year shall take precedence in the matter of seniority over those joining on initial recruitment in the same year irrespective of their date of promotion or joining. The only ground taken by the direct recruits, the appellants herein, is that there was delay in issuing letters of appointment, therefore, the date of their appointment‑be considered when the FPSC sent their recommendations. This question was also examined by the Hon'ble Supreme Court in the case reported in 1986 SCMR 898 (Islamic Republic of Pakistan through Secretary, Ministry of Defence v. Muhammad Zafar and others). In that case, the direct recruits had a grievance that there was delay in issuing their letters of appointments. The Supreme Court repelled their arguments and held that... "offer of appointment issued to the direct recruits contained condition that effective date would be the date of assumption of charge... ",. The crux of the matter is that the seniority is only G to be determined from the date of joining. It is also held in this case that the authorities had explained the delay in issuing the letters‑of appointments. In these cases, the delay has been explained and ‑it is stated that, as my learned brother has observed, the promotions were delayed as approval of the Cabinet about four‑tier scheme was awaited. On the identical point, we also refer to a case of Mrs. Farhat Maqbool v. Secretary, Ministry of Education reported in 1993 PLC (CS)'535,‑and this Tribunal held that seniority is to be reckoned from the date of joining and not from the date of recommendation of FPSC. The relevant paragraph is reproduced hereinbelow:‑‑ The regular appointment of a directly appointed candidate starts from the day the appointee takes over charge of the post. The general principles of seniority published in ESTACODE (1989) at page 225 provide that an officer recruited directly be the Commission in open competition would count seniority from the date of the recommendations by the Commission if he already holds the same post on ad hoc basis, and in other case he would count his seniority from the date of his joining the post after recommendation of his name by the Commission. Since the appellant was not hold the post of Assistant Professor on or after her selection by the Commission until 4‑2‑1987, her appointment as Assistant Professor took place and became operative on and from 4‑2‑1987 when show assumed the charge..." (Sd.) AbduPRazzaq A. Thahim, Chairman. (Sd.) Aftab Ahmed, Member. (Sd.) Noor Muhammad Magsi, Member. A.A./191/St/F Appeal dismissed.