1991 PLP (C (PLC(CS))

Hafiz S.A. Rahman for Respondents Nos. 1 and

2. Respondent No. 10 in person. Respondents 3, 9 to 11 (absent). Date of hearing: 11th February, 1990. SYED ALLY MADAD SHAH (CHAIRMAN).

Appellant/ Mr. Abdul Hamid who is an Assistant Chief in the Ministry of Production, has preferred this appeal for determination of his seniority.

2. The case of the appellant is that he was appointed as Assistant Chief (BPS-18) on ad hoc basis in the Ministry of Production on 9-3-1977. He was subsequently selected for the same post by the Federal Public Service Commission in June 1977 and order of his regular appointment was issued on 25-8-1977. By Establishment Division O.M. No. 10/2/75-ARC, dated 25th March, 1970, an occupational group called as "Economists and Planners Group" comprising all posts of Economists, Chiefs, Deputy Chiefs, Assistant Chiefs, Research Officers, Planning Officers and Economic Investigators in the Economic Sections of the Planning Division, the Economic Affairs Division and the Finance Division and posts in other Ministries/ Divisions and Departments of the Federal Government dealing exclusively with economic matters and planning and development in the economic field, was constituted as a measure of Administrative Reforms. According to the appellant, this occupational group had not become legally operative until 1984 for want of the fixation of the cadre strength thereof and finalisation of recruitment rules therefore. It is also his case that this occupational group was reshaped and renamed as Economists Group in 1984. The new recruitment rules were notified in October, 1984 and until then the different Ministries and Divisions were following the service rules and orders as were applicable to the services in each Ministry/Division. A tentative gradation list was issued on 28-7-1987, wherein the appellant's name was not mentioned at proper place. He made departmental representation dated 26-8-1987 but t9 no avail. Final gradation list was issued on 3-3-1989. Therein too, he was not assigned proper place and the respondents 3 to 11, who were junior to him, were shown senior to him. He made departmental appeal on 29-3-1988. He awaited decision on his departmental appeal for statutory period of 90 days and then filed this, appeal on 28-7-1988, praying that he may be declared senior to the respondents 3 to 11 and his name may be placed at the appropriate place, but that was not done.

3. The appeal is directed against the Secretary, Planning and Development Division, and the Secretary, Establishment Division as respondents i arid 2 and nine other respondents, namely -- M/s. Muhammad Aslam, Syed Haider Raza, S. Waqar Ali, Shannir Hussain Bhatti, Ghazanfarullah Khan, Syed Irtiqa Ahmad Zaidi, Muhammad Iqbal Malik, Manzoor Ahmed Rafiq Bhutta and Muhammad Shafi, the respondents 3 to 11 in seriatum Joint written objections have been filed on behalf of the respondents 1 and 2 by Mr. Qamar Abbas Rizvi, Section Officer, Economists Group, Planning and Development Division. Written objections have also been filed by the respondents 4, 5, 8 and

10. The respondents 3, 6, 7, 9 and 11 have not filed written objections and they have remained ex parte. The departments have raised preliminary objections that the appeal is not maintainable under, law as it is barred by section 4(1) of the Service Tribunals Act, 1973 and it is also bad for non-joiner of necessary party viz. Ministry of Commerce. On facts, the case of the departments is that the appellant was initially appointed as an Assistant Chief (BPS-18) on ad hoc basis in the Ministry of Production, and his selection by the Federal Public Service Commission was not against that post as he was selected for a post of Assistant Chief in the Ministry of Commerce; but that post was filled in the meanwhile and he was, therefore, accommodated in the Planning Division as an Assistant Chief as a special case vide Ministry of Production Notification No. 3(23) E&PG/PD/77, dated 25-8-1977. As regards the establishment of the Economists and Planners Group, the contention of the departments is that the Group was constituted on 25-3-1976 but it became operative with effect from 9-2-1977. The case of the departments further is that draft recruitment rules for the service in the Group were approved in March, 1977 but they were not notified and they were followed in the service structure on experimental basis and were finally notified with several modifications in October, 1984. Their contention further is that the service set up of the Group was regulated on the lines of the draft rules with necessary modifications in dealing with the pipe-line cases. It is stated in the written objections that the officers whose seniority has been challenged by the appellant were promoted by the Planning and Development Division on 26-7-1977 and some other officers were also promoted on different dates in the year 1977 for the consideration of facts mentioned therein and they were given seniority in accordance with the chronological order of their promotions.

4. The respondent No. 4 (Syed Haider Raza) has taken the plea that he was promoted vide Notification dated 26-7-1977, whereas the appellant was appointed on regular basis on 25-8-1977 and, therefore, the appellant ranked junior to him; and even otherwise he i.e. the respondent No. 4, reckoned seniority over the appellant by virtue of his being a promotee as per para. (c) Of Annexure `1' to the Establishment Division O.M. No.l/16/69-D.II, dated 31-12-1977, provided that the officers promoted to the higher grade in a continuous arrangement in a particular year shall, as a class, be senior to those appointed by direct recruitment in the year. The same plea has been advanced by the respondent No.5, the respondent No. 8 and the respondent No. 10.

5. The appellant was represented by Mr. Fazal Hussain Chaudhry, Advocate, at the hearing of the appeal; whereas the respondents 1 and 2 were, represented by the standing counsel Hafiz SA. Rahman. From amongst the respondents 4 to 11, only respondent No. 10 appeared. The main ground urged on behalf of the appellant was that his seniority should be reckoned from 9-3-1977 when he was appointed as Assistant Chief (BPS-18) in the Ministry of Production on ad hoc basis, by virtue of his selection for the post by the Federal Public Service Commission on 24-6-1977 and in view of general principles of seniority contained in sub-clause (a) of clause (3) of paragraph A, published as Annexure `I' to O.M. No.l/16/69-D.II, dated 31st December, 1970, providing that if the person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation of the Commission. This argument has been refuted on behalf of the respondents 1 and 2 on the ground that the appellant's selection by the Commission was against a post of Assistant Chief in the Ministry of Commerce, which was advertised in the year 1976, whereas he was appointed on ad hoc basis in the Ministry of Production in 1977 and, therefore, his selection could not be said to have been made against the post which was held by him (the appellant) on ad hoc basis. The stand taken by the department seems to be well-founded and it is supported by the fact that the appellant's appointment as Assistant Chief on regular basis was processed for the Ministry of Commerce but the vacancy there was already filled and the case was' thereafter processed to find a job for him in the Ministry of Production and he was adjusted there. The other ground advanced on behalf of the appellant was that the respondents 3 to 11 were not regularly promoted as they were promoted against posts in the direct recruitment quota and reference has been made to the seniority list of 1988. But the entries appearing in the Seniority list issued in the year 1988 do not furnish the correct picture of the structural position that obtained in 1977 and there is no tangible evidence that the promotions of the respondents were in excess of the promotion quota. The learned counsel for the Government has correctly pointed out that this ground was not agitated by the appellant in his departmental representations It follows from the above discussion that the appointment of the appellant as Assistant Chief (BPS-18) on' regular basis was subsequent to the dates of promotion of the respondents and, therefore, the respondents 3 to 11 were rightly placed above him in the seniority list circulated in the year 1988.

6. The legal pleas agitated on behalf of respondents 1 and 2 that the appeal is not maintainable on the grounds that it is barred under subsection (1) of section 4 of the Service Tribunals Act, 1973, and it is also bad for non-joinder of necessary parties viz. Ministry of Commerce, are not tenable. The first ground is' based on the assumption that no departmental appeal was filed by the appellant before filing appeal before the Tribunal. But the appellant has brought on record that he did file departmental appeal before coming to the Tribunal. As regards the impleading of Ministry of Commerce, it has not been pointed out to us as to in what circumstances the Ministry of Commerce was a necessary party. Both the grounds are, therefore, overruled.

7. For the reasons recorded above, the appeal lacks merit and it is dismissed as such, with no order as to costs. M.Y.H./573/Sr.F Appeal dismissed.