2018 PLP (C (PLC(CS))

RAJA SAEED AKRAM KHAN, J.

The above titled appeal by leave of the Court has been filed against the judgment of the Service Tribunal dated 16th June, 2017, whereby, the appeal filed by the appellant, herein, has been dismissed.

2. Brief facts necessary for disposal of the instant appeal are that the appellant, herein, filed an appeal in the Service Tribunal through which he challenged the seniority list dated 22.11.2011, wherein, his name was placed at serial No.90, whereas, the names of respondents Nos.3 to 15, herein, were shown at Serial Nos.77 to 89, respectively. The appellant alleged in the appeal that he was appointed as Assistant, B-11, in the Department of Census Federal Government of Pakistan in the year 1990 and after earning more than 10 years' service vide order dated 09.09.2000, he was mutually transferred with one Mr. Abid Hussain, Assistant, B-11, who was serving as Assistant, B-11, in the Services and General Administration Department of Azad Jammu and Kashmir (hereinafter to be referred as Services Department). The official respondents issued a tentative seniority list on 01.09.2008. On the said seniority list, he along with others filed objections but the official respondents without taking into consideration the objections prepared/issued the final seniority list on 22.11.2012. Feeling aggrieved, he filed a departmental appeal, which has not been decided as yet. The appellant further alleged that respondents Nos.3 to 15, herein, were appointed/promoted as Assistant, B-11, on temporary basis and confirmed vide order dated 27.05.2008, on permanent basis, whereas he was appointed as Assistant, B-11, in the year 1990, by the Federal Government and transferred vide order dated 09.09.2000, in the Services Department. He joined his duties on 11.09.2000. He further alleged that Abid Hussain, Assistant, who was mutually transferred against his post, has been given the benefit of seniority from the date of joining the service in Pakistan, i.e. 11.09.2000, hence, he is also entitled to the same treatment as every State Subject is equal before law. After necessary proceedings, the learned Service Tribunal dismissed the appeal of the appellant through the impugned judgment dated 16.06.2017, hence this appeal by leave of the Court.

3. Mir Sharafat Hussain, Advocate, the learned counsel for the appellant, argued that the judgment passed by the learned Service Triburial is erroneous and based on misreading and non-reading of the record. He contended that the learned Service Tribunal failed to take into account that the seniority is reckoned from the date of holding the charge of the post on regular basis. He added that the learned Service Tribunal erroneously held that the respondents have been granted retrospective seniority vide orders dated 25.04.2001 and 27.05.2008, but the appellants has not challenged the same at any forum, whereas, the matter of fact is that the respondents have not ever been granted retrospective seniority through the aforementioned orders. Even otherwise, as per settled law an ante-dated promotion cannot be granted to a civil servant as a matter of right which affects the seniority of other civil servants but this aspect of the case escaped the notice of the learned Service Tribunal while handing down the impugned judgment. He contended that the finding of the Service Tribunal that the appeal is time-barred, is also result of miscalculation of period as the same was filed well within 90 days from the date of issuance of seniority list dated 22.11.2011.

4. On the other hand, Mr. Muhammad Noorullah Qureshi, Advocate, the learned counsel for the private-respondents, strongly controverted the arguments advanced by the learned counsel for the appellant. He submitted that the judgment passed by the Service Tribunal is perfectly legal and in accordance with the settled norms of justice, hence, hardly requires any interference. The learned counsel further submitted that the appellant was mutually transferred from the Census Department Government of Pakistan with the condition that the lien of both the incumbents will remain intact for 3 years with their respective parent departments. Moreover, upon request of the appellant, his lien with the parent department was cancelled vide order dated 21.03.2003, which means that his lien remained intact with the Census Department Government of Pakistan till 21.03.2003, hence, he cannot claim seniority on the strength of order dated 09.09.2000.

5. Mr. Raza Ali Khan, the learned Advocate-General supported and adopted the arguments advanced by the learned counsel for the respondents.

6. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgment. The perusal of the record shows that the appellant was serving as Assistant, B-11, in the Census Department Government of Pakistan and vide notification dated 09.09.2000, a mutual transfer between one Abid Hussain, Assistant, B-11, serving in the Services Department and the appellant was made. The appellant joined the service as Assistant, B-11, in the Services Department on 11.02.2000. The departmental authority issued the final seniority list on 22.11.2011, wherein, the name of the appellant has been entered at serial No.90, while showing his date of induction into service as 21.03.2003. It is an admitted fact that the appellant was inducted into the service of Services Department as Assistant, B-11, through mutual transfer against the clear permanent post on regular basis vide order dated 09.09.2000, thus, mere fact that his lien was kept intact with the parent department, i.e. Census Department Government of Pakistan for a period of three year does not mean that he was appointed temporarily or on ad-hoc basis. We may clarify here that the provision of lien in the parent department is provided just for the purpose that in case there is any hardship for a civil servant in the transfree department he/she may re-join the service in the parent department. On the basis of the provision of lien a regular induction of a civil servant made by transfer cannot be given any other meanings. Under law the seniority can only be determined from the date of regular appointment made either by initial recruitment, transfer or promotion. The appointments made otherwise cannot be considered as regular appointment and not relevant for determination of seniority. It may be observed here that there are only two conditions for determination of seniority, one is regular appointment to the grade or post and the other is continuous service. Reference may be made to a case reported as Syed Subtain Hussain Kazmi, Tehsildar presently posted at Bagh Development Authority and 2 others v. Syed Mumtaz Hussain Kazmi, Naib Tehsildar presently posted at office of Deputy Commissioner, Bagh, Haveli and 5 others [2013 SCR 889], wherein, this Court after detailed deliberation held as under:- "After taking into consideration the detailed deliberation of hereinabove referred statutory provisions and case law, in our considered opinion, for determination of seniority, the basic requirements are regular appointment to the post, grade or cadre and continuation of it." As in the case in hand, it is evident from the record that the induction of the appellant in the Services Department was made through transfer which is one of the recognized modes of regular appointment and there was also continuity in his service; therefore, in such scenario, the concerned departmental authority had to determine the seniority of the appellant from the date when he joined the post in the Services Department i.e. 11.09.2000. The learned Service Tribunal recorded the findings that through order dated 25.04.2001 and 27.05.2008, retrospective seniority has been given to the private respondents but the appellant failed to challenge the said orders. From the perusal of the record it transpires that these findings are based on misreading and non-reading of the record as through order dated 25.04.2001, retrospective effect has been given to the appointments of some of the private respondents, whereas, in the order dated 27.05.2008, no eventuality of retrospective effect has been discussed. Through order dated 25.04.2001, retrospective effect has been given to the appointments of some of the private respondents but it has clearly been mentioned in the said order that retrospective effect is given just for monitory benefits and it will not affect the seniority of any other civil servant. The relevant portion of the said order reads as under:- The learned Service Tribunal recorded the findings discussed hereinabove in a slipshod manner without consulting the record. The learned Service Tribunal also failed to adhere to the fact that the seniority has to be determined from the date of regular appointment and the anti-dated/proforma appointment is not a regular appointment. This Court in Syed Subtain Hussain Kazmi's case (supra) while dealing with the proposition has held that:- "

21. In the light of hereinabove discussed statutory provisions and legal precedents, it becomes clear that the anti-dated/proforma appointments are not regular appointments rather these fall within the domain of residuary powers of the Government, derived under section 22 of the Civil Servants Act for just and equitable purpose. According to law of the land, such appointments normally are made for redressal of any injustice caused to a civil servant to the extent of his monitory benefits etc. but seniority cannot be determined from the dates of such retrospective appointments rather the seniority has to be determined from the date of regular appointment." Keeping in view the contents of the order dated 25.04.2001 and the principle of law enunciated in the case law (supra), it becomes clear that the retrospective effect given to the appointments of some of the private respondents do not affect the right of seniority of the appellant, thus, the dismissal of appeal by the Service Tribunal on such ground that the appellant has not challenged the proforma appointments, is illogical. 6.(sic) There is another amazing aspect of the case which shows that the learned Service Tribunal did not even bother to peruse the record minutely, as the record shows that the appellant challenged the seniority list dated 22.11.2011 on 18.02.2012, after a period of 88 days, within limitation which has been provided as 90 days, whereas, the learned Service Tribunal while dismissing the appeal recorded the findings that the appeal is hopelessly time barred as the same has been filed after lapse of one year and 88 days. In such circumstances, the impugned judgment which is based on misreading/non-reading of the record as well as also on non-adherence to law, cannot be upheld. After examining the record of the case and the case law on the subject, we are of the considered view that the appellant was inducted into service on regular basis through transfer order dated 09.09.2000 in the Services Department, therefore, his seniority shall be reckoned from the date of joining the post i.e. 11.09.2000 and not from the date when his lien came to an end in the parent department. The nutshell of the above discussion is that while accepting this appeal the impugned judgment is hereby set aside and the concerned authority is directed to determine the seniority of the appellant from the date of his induction, i.e., 11.09.2000 and enter his name at the proper place in the seniority list. No order as to costs. ZC/11/SC(AJ&K) Appeal allowed