1984 PLP (C (PLC(CS))

JUSTICE SHAH ABDUR RASHID (CHAIRMAN).‑‑Prior to the constitution of Acconuts Group by Office Memorandum No. 1/2/74‑ARC, dated the 23rd January, 1974, as amended by Office Memorandum No. 2,/l/75‑ARC, dated the 3rd March, 1976 (hereinafter referred to as the aforesaid Memorandum), there were regularly constituted Services called the Pakistan Audit and Accounts Service, Military Accounts Service and the Railway Accounts Service. The functions of the department of T & T and the Pakistan Post Office Department were carried out by their own cadres of Accounts. When the aforesaid Memorandum of 1974 was issued, and subsequently amended, it was, inter alia, laid down that all posts in Grade‑17 which were formerly borne on the cadre of the former Accounts Services and 25% of Grade 17 posts in the T & T Depart ment and Pakistan Post Office Department shall be borne on the Inter‑Departmental Cadre. It was also laid down that the posts in Grade 17 sanctioned after the 20th August 1973 will be distributed between the Departmental and the Inter‑Departmental Cadres in the ratio of 3 Besides that, the cadre was to comprise of posts in Grade‑18 and above in the Group.

2. The appellant and other persons belonging to the T & T Depart ment and the Pakistan Post Office Department holding the post of Accounts Officer were initially in Grade

16. They were, by order of the Prime Minister, dated 24th July, 1974 appointed to upgraded posts in Grade‑17, which took effect from 1st March, 1969.

3. Inter‑departmental Cadre was formed, as provided for in the aforesaid Memorandum, but the seniority to the appellant and others belonging to the category of the appellant, was not counted from 1st March, 1969, the date from which they were inducted into Grade

17. Consequently, a seniority list had been prepared in which the appellant was shown much below the direct recruits of the regularly constituted services, The first list was corrected upto 12th December, 1975 and the second upto 1st January,.1978.

4. Feeling that the seniority list of 1975 was to the disadvantage of the appellant, he made a representation to the Auditor‑General of Pakistan but did not get any reply. Thereafter, the list of 1978 was published and the appellant again represented to the Auditor‑General, but this time too, without any response. The appellant then filed an appeal before this Tribunal on 18th October, 1978. The appeal was dismissed, but the following observation was made therein :‑ "Before parting with the case, however, we would like to add that the appellant if he so wishes, .may now make a representation to the President of Pakistan. As the appeal has been pending before this Tribunal for a considerable length of time, and the appellant had represented to the Auditor‑General of Pakistan (instead of the President of Pakistan) under a bona fide impression that the impugned list was issued by the Deputy Auditor‑General of Pakistan, we expect that the condonation of delay occurred in filing the representation will be sympathetically and favourably considered in the event if representation is now submitted to the President of Pakistan. If the appellant would still feel aggrieved by the deci sion on his representation, if made to the President of Pakistan, he can then approach this Tribunal : for proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, in our view, does not completely oust the jurisdiction of the Service Tribunal in such cases, but is intended to provide that a Tribunal should adjudicate on concrete controversies concluded by determinative order of the departmental authority. With these observations, the appeal is dismissed as premature and incompetent."

5. After the decisions of the Tribunal, the appellant made a sentation to the President of Pakistan which, in the first instance, was not responded for more than 90 days, and the appellant was compelled to file the present appeal before the Tribunal. However, during the pendency of the appeal, the appellant was informed that his representation to the President being barred by time had been withheld.

6. In the appeal before us, the appellant, inter alia, claims that his seniority should be reckoned from 1st March, 1969. He had also prayed for two other reliefs, but when the case came up for arguments, the learn ed counsel for the appellant stated that he was only challenging the emplacement of the appellant in the seniority list contrary to the Genera) principles of Seniority. According to him, the appellant was entitled to be placed senior to all those persons in Grade 17 who joined their respec tive services subsequent to 1st March, 1969, the date from which the appellant is to be given seniority.

7. The learned counsel for respondents has argued that the appeal is barred by time, because the appellant made representation to the President long after the gradation list had been published and promul gated. In this respect, we find little force. In fact, the previous order of the Tribunal from which a portion has been quoted above, clearly lays down that the appellant's case deserved to be considered favourably by condoning the delay. In spite of our observation, the representation was not decided on merits and was withheld as barred by time. In, view of the fact that the appellant had been previously before the Tribunal the time spent here was to be excluded. In any case, there being sufficient cause for the appellant in coming late to the Tribunal, we condoee the delay and hold that the present appal is within time.

8. The learned counsel for respondent No. 21 argued that appoint ment of the appellant to Grade 17 retrospectively was not properly made, as the Prime Minister being the appointing authority, there is nothing to show that his orders were obtained. It was also urged that promotion could not be made retrospectively. We find little force in this argument. Under the rules made under the Civil Servants Act (LXXI of 1973), by the President, the Prime Minister was given power to make appointments to Grade

17. This power was subsequently delegated to the Establishment Secretary. As far as the retrospectivity is concerned, an order of the Government making appointment to a post retrospectively is not bad, if the post on the date from which the appointment is made, is avail able or is created. This view was earlier taken by this Tribunal in the case of Muhammad Iltemas Khan v. Central Board of Revenue and another (1982 P L C (C S) 632).

9. Coming to the merits of the case, it would be advantageous to reproduce the aforesaid Office Memorandum on the basis of which the seniority of the members of the .Accounts Group was to be determined. It reads as under :‑ "Following the introduction of the Administrative Reforms by the Prime Minister on 20th August, 1973 and the abolition of services as a result thereof, the question of formation of new occupational groups to take the place of services has been under consideration of the Government. Necessary information was called for from the Ministries/ Divisions and Joint Secretary, Administrative Reforms, had detailed discussions with them. The first Ministry to be taken up was the Ministry of Finance. In respect of the Depart ments, etc. under the Ministry of Finance, the President is now pleased to constitute an occupational group called the Accounts Group which shall comprise all posts in‑ (i) the Pakistan Audit and Accounts Department the Military Accounts Department and the Railway Accounts Department ; (ii) the Accounts cadres of the T & T Department and the Pakistan Post Office ; and (iii) All Accounts posts under Ministries/Divisions and Departments of the Federal Government (other than the posts of Budget and Accounts Officers or Finance and Accounts Officers in the Minis tries and Divisions of the Federal Secretariat). (2) The broad framework of rules and regulations, etc. within which the Group will function is outlined below. (3) From Grade 1 to Grade 17.‑Each Department will operate separately as heretofore except with regard to Grade 17 posts included in the Inter‑Departmental Cadre vide para. 4 below. The existing instructions in regard to quotas for direct recruitment and promotion, the composition of promotion and selection com mittees, the appointing authorities for various grades, etc. will continue to apply. All posts to be filled by direct recruitment will be advertised. (4) Inter‑Departmental Cadre (a) All posts in Grade 17 which were formerly borne on the cadre of the former Accounts Services and 25% of Grade 17 Accounts posts in the T & T Department and Pakistan Post Office Department shall be borne on an Inter Departmental Cadre. Posts in Grade‑17 sanctioned after 20th August, 1973 will be distributed between the Departmental and Inter‑Departmental Cadres in the ratio of 3 :

1. The Cadre shall in addition comprise all posts in Grade 18 and above in the Accounts Group. Officers of the Inter‑Departmental Cadre will be transferable from one Department to the other. (b) Appointments to posts in Grade 17 on the initial formation of the Inter‑Departmental Cadre will be made by allocating posts to the promotee officers and the direct recruits in Grade‑17 in the ratio of 50 : 50, on year‑to‑year basis. Future appointments to Grade 17 posts in the cadre will also be made by allocating vacancies aris ing in that grade to officers of the Departmental Cadre and the direct recruits in the ratio of 50 :

50. The ratio is subject to review after 5 years. (c) All officers who are holding posts in Grade‑18 and above on regular basis shall be deemed to have been appointed to the Inter‑Departmental Cadre in their respective grades. (d) The number of Grade 17 Officers of a department approved for induction in the Inter‑Departmental Cadre shall not exceed 50% of the number of Grade 17 posts, contributed by that department to the Inter‑Departmental Cadre. (e) The probationer officers recruited on the results of the competitive examination held by the Federal Public Service Commission, who after completion of integrated training at the Academy for Administrative Training, are allocated to the Accounts Group will undergo common Departmental training, to be followed by an examination the details of which will be prepared by the Auditor‑General. Thereafter, they will be allocated to a parti cular Accounts Department. They will ordinarily remain in that Department until they get promotion to the next higher Grade. (5) Posts in Grade 18 and above will be filled by promotion of officers of the Inter‑Departmental Cadre in accordance with the prescri bed procedure. (6) Officers of Accounts Departments will be eligible for Secretariat posts and will be selected after written tests and interviews, for posts in Grades 19 and 20, i. e. Deputy Secretary and Joint Secretary. These posts will be in a common pool to which officers of all Federal and Provincial Departments will be eligible. Instead of making selection as and when vacancies occur, panels of officers for appointment to these posts would be prepared after tests as mentioned above. These panels will be prepared twice a year. Those selected for Deputy Secretary and Joint Secretary's posts would be put through a training programme of 3‑4 months. Their final selection would be made after satisfactory completion of training. No post of the rank of Deputy Secretary and Joint Secretary or equivalent in the Provincial Secretariat or the Federal Secretariat, tenable by officers of All‑Pakistan Unified Grades would be filled except from these panels. (Relaxation will be made with Prime Minister's approval in individual cases). (7) For posts in Grades 21 and 22, f. e. Additional Secretaries and Secretaries and equivalent, the selection would be made from Government servants of Grade 20 and above and also from amongst professionally qualified persons from the private sector. (8) Lateral Entry.‑In order to meet shortages of officers in the Accounts Group, or to meet specific requirements, appointments may be made to posts in the Accounts Group in any Grade by recruitment through lateral entry of persons engaged in a profes sion, or in the service of a corporation or private organisation,. who possess such professional qualifications and experience as the President may from time to time determine. Similarly, officers of the Accounts Group ;may be posted to appropriate posts in corporations and private organisations under Government management and control. (9) Seniority.‑(i) Grades 1 to 17 : Save as provided in (ii) below, separate Department‑wise seniority list would be maintained for all posts in Grades 1 to 17 hitherto on the basis of continuous regular officiation in the Grade. To meet shortages in a particular Grade and to ensure an even pace of promotion of employees in different Departments, it would be permissible to order transfer from one Department to another. (ii) Grade‑17 (Inter‑Departmental Cadre) (a) A separate seniority list will be maintained in respect of Grade 17 Officers of the Inter‑Departmental Cadre (b) The promotee officers adjusted in a particular year will be placed senior to the direct recruits of that year (c) The inter se seniority of direct recruits of a year or batch will be determined on the basis of the order of merits of the probationers determined at the time of final passing out from the Academy for Administrative Training. (d) The inter se seniority of the Departmental officers inducted in the Inter‑Departmental Cadre in a particular year shall be determined according to the date of their regular continuous officiation. (iii) Grade 18 and above ; Seniority will be determined in each Grade from the date of regular continuous officiation in the Grade. (10) Departmental Examination:‑ The present departmental examina tion for promotion to posts in Grade 16 will continue to operate. (11) Provision for accelerated promotion to posts in Grade‑17 :‑To enable bright young persons who have failed to secure through competitive examination conducted by Federal Public Service Commission direct entry to Grade 17 posts, to get another opportunity to compete for these posts, or to get accelerated promotion within the Department, the following two provisions are made :‑ (a) They can appear in competitive examination upto the age of 30 years provided they have put in at least 2 years service. At present this relaxation, is admissible upto the age of 28 years and is allowed only if one has not previously appeared in the examination. In future, two chances will be allowed after one has entered Government service. (b) There will also be a departmental examination under which departmental candidates can be considered for accelerated pro motion in their own department. The upper age limit for this will be 45 years for the first examination, 40 years for the next examination and 35 years for all subsequent examinations. The Auditor‑General will prepare a scheme for the Departmental Examination at (b) above and obtain the approval of the Ministry of Finance and the Establishment Division. Promotion on accelerated basis through the above examination will, subject to availability of suitable departmental candidates, be limited to a maximum of 25% of the total vacancies. (12) The Inter‑Departmental Cadre will be administered by the Audi tor‑General and the Departmental Cadres by the respective Heads of Department. The Auditor‑General will prepare and maintain a gradation list of all officers in Grade 17 and above in the Inter‑Departmental Cadre while the Departmental Heads will maintain seniority lists of Officers and staff in Grade 17 and below in the Departmental Cadres. (13) The other existing arrangements with regard to personnel manage ment of the various Accounts Departments and cadres will continue. The Auditor‑General, in liaison with the Departments concerned, will be responsible for the smooth implementation of these instructions. Any major difficulties which may arise will be resolved in a meeting of the Establishment Secretary, the Finance Secretary and the Auditor. General." Para. 4 (b) of the aforesaid Memorandum provides for the formation of Inter‑Departmental Cadre and lays down that direct recruits and promotee officers shall be inducted into the Accounts Group in the ratio of 50 : 50 and year to year basis. The learned counsel for respondents contends that by making induction on year to year .basis in the ratio of 50 : 50, the appellant has rightly been placed in the seniority list. Reference was also made to para. 9 (ii) (b), wherein it is provided that promotee officers adjusted in a particular year will be placed senior to the direct recruits of that year. It was contended that the seniority of officers inducted into Accounts Group has been made. accordingly and hence is not open to challenge.

10. The question is not free from difficulty. If para. 4 (b) was the only provision regarding the induction of officers, then the respondents had a good case and the appellant could not challenge the seniority given to him. However, para. 4 (a) bad not been taken into consideration by the respondent‑department while making the seniority list. This sub- para provides that all posts in Grade‑17, which were formerly borne on the cadre of former Accounts Services and 25% of Grade 17 Accounts Posts in the T & T Department and Pakistan Post Office Department shall be borne on the Inter‑Departmental Cadre. However, posts in Grade 17 sanctioned after 20th August, 1973 will be distributed between the Departmental and Inter‑Departmental cadres in' the ratio of 3 :

1. It further provides that the cadre shall, in addition, comprise of all posts in Grade‑18 and above in the Accounts Group. Para. 9 (ii) (b) refers to the officers adjusted in a particular year whose‑seniority has to be fixed according to the formula laid down in para.

9. A reading of para. 4 (a) and 4 (b) would show that adjustment on year to year basis, as mentioned in para. 4 (b) and not as in para. 4 (a) is to made. As a step, para. 4 (a) has to be interpreted according posts of Grade 17 Accounts posts of T & T Department are to go to the Inter‑Departmental Cadre. It has not been denied that the appellant falls within the category of 25% Grade 17 officers of the T & T Department. He, therefore, has to be dealt with in accordance with para. 4(a) along with others to complete 25% quota. It is thereafter that sub- para. (b) of para. 4 would be applicable. After exhausting 25% of the T & T posts, the remaining T & T officers had to be adjusted in the seniority list in accordance with para. 9 (ii) (b) by adjusting promotee officers in a particular year, who will be placed senior to the direct recruits of that year. Since there is no rule of seniority with respect to 25% posts of the T & T officers who are taken in the Accounts Group, the natural presumption is that their seniority would be determined in accordance with the General Principles of Seniority, as given at page 148 Serial No. 153 of the Estacode. It provides that the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service, cadre or grade, from the date of their regular appoint ment/promotion to the post. Since the appellant had been promoted to Grade 17 with effect from 1st March, 1969, his seniority is to be counted from that date and nor from any later date.

11. The result is that this appeal is accepted. The respondents are directed to fix the seniority of the appellant according to the date of his promotion which ss deemed to have taken place on 1st March, 1969, with consequential benefits of consideration for promotion, etc.

12. This order is ex‑parte against respondents 4 to 19, and 22 to

85. ABDUR RASHID (MEMBER).‑‑I cannot help, recording my views with regard to (Accounts Group) para. 9 (ii) (b) which lays down : "The promotee officers adjusted in a particular year will be placed senior to the direct recruits of that year." The above‑quoted principle, the Logic of which is obscure to me, is a carry‑over from the era which had, in my considered view, come to an end as soon as the Civil Servants Ordinance, 1973 (and thereafter the Act 1973) came into being. For the purpose of this note, I shall quote the relevant subsections of section 8 of the Act ibid dealing with the seniority :

8. Seniority :‑ (1) ... (2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to 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

15. It is an admitted ..position that after the advent of the Civil Servants Act, 1973, no rules have been prescribed with reference to subsections (2) and (3) quoted above. Since no rules of section 8 of the Act ibid, for these subsections have been prescribed, patch‑work has been resorted to, by pressing into service the nearest available "rule" from the C. S. S. (Class 1) Rules. 1965 which is rule 13 (4) and it lays down. "Seniority of promotees vis‑a‑vis direct recruits shall be fixed in accordance with the principle that promotees as a class shall be senior to direct recruits of the same year."

16. It appears that the above‑quoted rule taken together with "C" of the General Principles of seniority (p. 154 Estacode 1983), is being used to bridge the gap which has all along existed for want of appropriate rules yet to be framed under subsections (2) and (3) of section 8 of the Act ibid. It may be as well to quote "C" of the General Principles of Seniority just mentioned : (c) `Departmental promotees, vis‑a‑vis direct recruits Officers promoted to the higher Grade in a continuous arrangement and as a regular measures in a particular year shall as a class be senior to those appointed by direct recruitment in the same year.

17. The principle of the promotees of a particular year tanking senior to the direct recruits of the same year has, however, been done away with when it comes to dealing with the seniority of lateral entrants At serial No. 161 page 157 (Estacode 1983) we find : "Seniority of officers inducted by the lateral entry:‑ The funda mental rules regarding the seniority of officers inducted by lateral entry into civil cadre are based on the following considerations :‑ (i) the date of induction of the officer ; (ii) the Grade in which be is initially inducted ; (iii) his seniority in that particular Grade in which he is inducted, is fixed with reference to his date of induction ; and (iv) his seniority in his original service to which he belonged becomes irrelevant after be has been inducted into a civil cadre with effect from a particular date." Now when we look at (iii) above, we find that a lateral entrants takes his seniority with reference to his induction in a particular scale and the date thereof. I have drawn this ready‑made parallel due to the fact that a lateral entrant is a DIRECT RECRUIT and hence the "rules" for the Lateral Entrants may be more aptly available to meet the requirement of subsection (3) of section 8 of the Civil Servants Act, 1973. I may also mention that it is nowhere stated, by way of a "principle" or a "rule" in respect of the lateral entrants' seniority, that the lateral entrants of a particular year shall rank junior to the promotees of the same year. I say this because I do not rule out the possibility of a lateral entrant, on the one band and a promotee on the other, joining their posts in an equal scale on one and the same date and doing so in one and the same cadre. If we substitute the words Direct Recruits for the words Lateral Entrants, the result would be that the Direct Recruits would be dealt with more justly.

18. I have always considered it inequitable that a promotee who join on 31st December, of a year should rank senior to a direct appointee who may have joined on 1st January, of the same year. Subsection (4) of section 8 of the Civil Servants Act, 1973 taken in respect of promotees alongside with the "rules" for lateral entrants, if made applicable to the direct entrants appeared to me to be just. It was for this reason that in a case decided by this Tribunal as Fatal‑i‑Qadir v. Secretary, Establish ment Division and others, (1984 P L C (C. S.) 151) the tribunal took the view that the seniority of an officer whether direct appointee or promotee shall reckon with effect from the date he joined a particular scale. Viewed in this light and considering that a contrary view on seniority exists (in the Tribunal) to the one enshrined in para. 9 (ii) (b) of the Accounts Group (and for that matter in respect of certain other Occupational Groups), I thought it essential to deal with this issue at length. It is by no means an expression of disagreement on my part with the learned Chairman but it is certainly in token of my disagreement with the BLANKET principle that the promotees of a year shall bank senior to the direct appointees of the same year. The maximum accommodation which, in my opinion, would be appropriate is that in case a promotee and a direct appointee joined their posts in a particular scale on the same date, then other factors like age and the date of continuous regular officiation etc. may be considered for (Sic), Division may be seized of framing the required rules under sub sections (2) and (3) of section 8 of the Civil Servants Act, 1973 and they may like to expediate mtters which appear to be over due after more than a decade of the appearance of Act ibid.

19. I make the above addition with utmost humility though other wise fully agreeing with the judgment arrived at by the learned Chairman. A. E. Appeal accepted.