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Petitioner: SHER MUHAMMAD VS Respondent: FEDERATION OF PAKISTAN,Fazal Elahi, M.A. Zaidi, Abdul Latif, Arshad Mahmood,Sher Muhammad,Salamat Ali, Muhammad Akram
1999 P L C (C
1999 P L C (C. S.) 299
[Supreme Court of Pakistan]
Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif JJ
Civil Appeals Nos. 946. to 948 of 1993
Mehr SHER MUHAMMAD and 2 others
versus
FEDERATION OF PAKISTAN
(On appeal from the judgment dated 11‑7‑1993 passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 222‑R/91, 187‑R/92 and 182‑R of 1992).
Civil Petitions Nos. 1185 to 1204 and 1207 to 1224 of 1997
FEDERATION OF PAKISTAN
versus
MUHAMMAD SHARIF SABIR and others
(On appeal from the judgment dated 26‑7‑1997 passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 629‑R of 1996 and 19 others).
Civil Appeals Nos. 946 to 948 of 1993 and 1185 to 1204 and 1207 to 1224 of 1997, decided on 28th October, 1998.
(a) Civil service‑‑‑
‑‑‑‑Seniority‑‑‑Deputationists/inductees‑‑‑Principles‑‑‑Deputationists who had been performing functions in a service group to the entire satisfaction of their superiors, after permanent absorption in said Group became entitled to be regulated for purposes of seniority under the prevalent procedure, instructions and rules‑‑‑Special procedure or Rules contained in an Office Memorandum would regulate seniority of inductees/deputationists in the absence of any specific rules or general provisions.
Muhammad Arshad Sultan v. Prime Minister of Pakistan PLD 1996 SC 771; Muhammad Zafai Khan v. Secretary, Establishment Division 1995 SCMR 1840; Nazir Ahmad Qureshi v. Pakistan and others PLD 1959 (W.P.) Kar. 92 and Brig. Sher Ali Baz v. The Secretary, Establishment Division PLD 1991 SC 143 ref.
(b) Civil Servants (Seniority) Rules, 1993‑‑‑
‑‑‑‑Preamble‑‑‑Civil Servants (Seniority) Rules, 1993 are prospective in character and would supersede all practices, instructions and Office Memorandums in the sphere of. fixing seniority of civil servants from the date of their promulgation and all other methods existing till then, shall cease to be operative.
PLD 1993 Central Statutes, p: 281 ref.
(c) Civil service‑‑‑
‑‑‑‑ Inter se service rights‑‑‑Unless extraordinary justification is shown, the Government departments for regulating through inter se service rights of the officers must remain consistent.
Appellants in person (in C.As. Nos. 1185 to 1204 and 1207 to 1224 of 1997).
Maulvi Anwarul Haq, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in C.As. Nos. 946 to 948 of 1993 and C.Ps. Nos. 1185 to 1204 of 1997).
Sh. Riazul Haq, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 1207 to 1224 of 1997,).
Ahmad Raza Khan Kasuri, Advocate Supreme Court with Karam Illahi Bhatti, Advocate‑on‑Record for Respondent No. 94 (in C.Ps. Nos. 1208 and 1186 of 1997).
Fazal Elahi Siddiqui, Advocate Supreme Court and M.A. Zaidi. Advocate‑on‑Record for Respondents Nos. 234, 237, 238 and 241 (in C.P No. 1185 of 1997).
Abdul Latif Leghari, Respondent (in C.Ps. Nos 188 and 1210 of 1997) in person.
Arshad Mahmood, Respondent (in C.Ps. Nos 185, 1204 and 1207 of 1997) in person.
Sher Muhammad, Respondent (in C. P. No. 1204of 1997) in person
Respondent No. 30 (in C.P. 1207 of 1997) in person)
Muhammad Akram Bhalli, Respondent in person.
Salamat Ali Baig, Respondent in person:
Dates of hearing: 27th and 28th October, 1998
JUDGMENT
MUNAWAR AHMED MIRZA, J.‑‑‑There are three separate sets of cases which primarily involve common point relating to determination of seniority amongst the officers who were on deputation and permanently absorbed in Office Management Group (hereinafter referred to as OMG) of Federal Secretariat and the Section. Officers of different grades already in the Secretariat.
First set of the cases relate to C. P. L. As. Nos. 1185 to 1204 filed by the Federation of Pakistan challenging single judgment dated 26‑7‑1997 passed by Federal Service Tribunal in Appeal No.629‑R of 1995 and 19 connected matters.
Second set pertains to C.P.L.As. Nos. 1207 to 1224 of 1997 filed by the Departmental Section Officers who were affected by above referred judgment dated 26‑7‑1997 of Federal Service Tribunal.
Whereas third, set comprises of three Civil Appeals bearing Nos.496, 497 and 498 of 1993 wherein common judgment dated 11‑7‑1993 passed by Federal Service Tribunal in Appeals (i) No. 222(R) of 1991 (filed on 20‑7‑1991)‑‑Mehr Sher Muhammad v. Secretary, Establishment Division, (ii) 182(R) of 1992 (filed on 23‑4‑1992)‑‑Ghulam Nabi Mangrio v. Secretary, Establishment Division (iii) 187(R) of 1992 (filed on 28‑4‑1992)‑‑Arshad Mahmood v. Secretary, Establishment Division dismissing above appeals; has been challenged.
2. Details in each case have lightly difference but it need not be mentioned for resolving real controversy. Brief background and relevant facts are that inductee/deputationists were employed in various departments on permanent basis. However, their services were transferred on deputation to the Federal Secretariat during years 1987 to 1991 because of non?-availability or insufficiency of suitable and efficient working staff. Later, steps were taken to permanently absorb the incumbents on completion of deputation period on‑the basis of rule whereby appointment could be made from other service cadre after obtaining consent of concerned officer and respective parent department. The Departmental Promotion Committee on such basis approved/recommended permanent absorption of various officers including twenty persons who had filed appeals before Federal Service Tribunal and are respondents in present petitions for leave to appeal.
3. It may be mentioned here that Muhammad Arshad Sultan, Section Officer and 8 others who basically belonged to O.M.G. had challenged the assigning of seniority to the deputationists from the period prior to their permanent absorption in the O.M.G. Eventually matter came up before this Court in Civil Appeal No. 128 of 1993 and 5 connected matters, which were decided through common judgment dated 27‑6‑1996 reported as PLD 1996 SC 771 (Muhammad Arshad Sultan v. Prime Minister of Pakistan). The grievances of parties with reference to relevant Office Memorandum (O.M.) issued by the Establishment Division containing detailed instructions for regulating transfer of civil servants from various departments or deputationists was exhaustively examined. In this context Rule 9‑A introduced through O.M. No.7/12/81‑C‑III.B/(O.M.G.‑II), dated 4‑11‑1985 and O.M. No.8/17/90‑O.M.G.‑I, dated 28‑1‑1991 in the light of relevant case‑law were also considered. This Court eventually remanded the case to Departmental Authority for re-determination of seniority concerning all the officers, who were appellants before the Court. Qua respondents in the said appeals. Concluding portion of the judgment is reproduced below (Italics are for emphasis):‑‑
" 14. As a result of the above discussion, we were of the view that the private respondents in the above appeals were entitled to get their seniority determined in relation to others in accordance with paragraph 6 of the instructions appearing at page 335 of the ESTACODE (Edition 1989) at serial No. 30. However, as the record before us does not show that whether at the time respondents were asked to exercise their option for absorption or transfer of their services to O.M.G. they had the right to refuse or not the offer, the controversy cannot be decided finally in these appeals. We accordingly, set aside the orders passed by the Service Tribunal as well as the departmental authority and remand the case to the departmental authority for re-determination of the seniority of appellants qua respondents in the above appeals keeping in view the observations made above and the provisions of paragraph 6 of the instructions printed at page 335 of the ESTACODE (Edition 1989). There will be no order as to costs in the circumstances of the cases."
4. It may be mentioned that earlier Muhammad Zafar Khan, who belonged to Directorate‑General Inter Services Intelligence was transferred and posted on deputation by Notification dated 23‑4‑1987 as Section Officer in the Ministry of Industry in his own pay and scale. He was absorbed in O. M. G. after expiry of three years. Factually prior to his transfer on deputation he had been promoted to higher grade in his parent department. In the gradation list issued by the department his seniority was reckoned in O.M.G. as Section Officer with effect from 23‑4‑1987, the date of his transfer to the Federal Secretariat on deputation basis. His Representation claiming promotion from the earlier date as granted by his parent department was rejected and Establishment Division relying on the conditions laid down in its O.M. No. 8/17/90‑OMG‑I, dated 28‑1‑1991, reproduced below for ready reference:
"Officers appointed as Section Officers by transfer in the Office Management Group as assigned seniority in accordance with the following approved principles:‑‑
(i) Officers in basic pay scale 17 or 18 who joined Federal Secretariat as Sections Officers initially on deputation and were subsequently appointed by transfer as Section Officer in the same scale in the O.M.G. 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."
Not only Federal Service Tribunal dismissed the appeal filed by Muhammad Zafar Khan but same was also rejected by the Court on 25‑6‑1995 and case is published as 1995 SCMR 1840 (Muhammad Zafar Khan v. Secretary, Establishment Division). Relevant observations appearing in paragraphs 6 to 8 are thus:‑‑
"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 O.M.G. 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.
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 in 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."
5. It appears that steps were being taken in pursuance of remand order passed in Civil Appeal No. 128 of 1993 and other connected matters PLD 1996 SC 771 (supra). However, Muhammad Zafar Khan filed Criminal Original Petition No.37 of 1996 seeking implementation of observations which had been made in his favour in the judgment dated 25‑6‑1995 Civil Appeal No.253 of 1992 reported as 1995 SCMR 1840 (supra). After notice to Deputy Attorney‑‑General this petition was disposed of on 24‑3‑1998 in the terms reproduced below:‑‑
"3. In response to the Court Notice. Mr. Maulvi Anwarul Haq, learned Deputy Attorney‑General, is present. His submission was that in view of the subsequent judgment rendered by this Court on 27‑6‑1996 in Civil Appeals Nos. 128 of 1993 and 5 of 1994, the department had fixed the seniority in terms of the subsequent judgment. We have gone through the relevant portion of the above judgment wherein in para. 12, the judgment rendered by the Court in the case of the petitioner was distinguished by the learned Bench. In this view of the matter, the above judgment dated 25‑6‑1995 remained in the field.
4. We would, therefore, dispose of the petition with the observation that the department would, re‑fix the seniority of the petitioner in terms of the judgment dated 25‑6‑1995. If any person will be aggrieved by it, he will be entitled to take action according to law. We are not inclined to initiate contempt proceedings and dispose of the petition in the above terms. "
During the course of arguments copy of Notification No. 8/3/96‑OMG‑I, dated 28‑4‑1998 has been placed on record indicating re‑assigning seniority to Muhammad Zafar Khan.
6. Record reflects that Establishment Division pursuant upon above referred decision in Civil Appeal No. 128 of 1993, PLD 1996 SC 771 (supra) carried out changes whereby the seniority of inductee deputationists was disturbed. They made representations and, thereafter, preferred Appeal No. 629(R) of 1996 and 19 other appeals, which have following description:‑‑
S.No
Number of appeals
Parties Name
1
629‑R/1996???????????
Arshad Mahmood v. Secretary Establishment Division and others.
2
638‑R/1996???????????
Muhammad Sharif Sabir v. Secretary, Establishment Division and others.
3
651‑R/1996???????????
Iftikhar Ali Khan v. Prime Minister of Pakistan and others.
4
652‑R/1996
Abdul Latif Leghari v. Prime Minister of Pakistan and others
5
4‑R/1997
Hafiz Abdullah v. Secretary, Establishment Division and others.
6
5‑R/1997
Ghulam Nabi Mangrio v. Prime Minister of Pakistan etc.
7
7‑R/1997
Mrs. Nyla Qureshi v. Prime Minister of Pakistan and others.
8
8‑R/1997
Zamurrad H. Khattak v. Prime Minister of Pakistan and others.
9
10‑R/1997
Muhammad Iqbal Rao v. Secretary, Establishment Division and others.
10
11‑R/1997
Muhammad Shoaib v. Secretary, Establishment Division and others.
11
11‑R/1997
Muhammad Shoaib v. Secretary, Establishment Division and others.
12
12‑R/1997???????????
Niaz Muhammad Khan v. Secretary, Establishment Division and others
13
13‑R/1997???????????
Abdur Raziq Khan v. Prime Minister of Pakistan and others.
14
14‑R/1997
Abdul Sami Khan v. Prime Minister of Pakistan and others.
15
15‑R/1997
Inam‑ur‑Rehman v. Secretary, Establishment Division and others.
16
16‑R/1997???????????
Muhammad Rafique v. Secretary, Establishment Division and others
17
17‑R/1997
Manzoor Hussain v. Secretary, Establishment Division and others.
18
19‑Rf1997???????????
Muhammad Akram Bhalli v. Federation of Pakistan and others
19
20‑R/1997
Mrs. Faiza Aziz v. Secretary, Establishment Division and others.
20
26‑R/1997
Mehr Sher Muhammad v. Federation of Pakistan and others."
7. The above appeals were accepted by the Federal Service Tribunal vide judgment dated 26‑7‑1997 whereby Notification dated 18‑8‑1996 revising seniority of above referred appellants was set aside and their original seniority granted from date of assuming charge as Section Officers on deputation basis was upheld keeping in view O.M. No.8/17/90‑OMG‑I, dated 28‑1‑1991. Federation of Pakistan aggrieved from above decision filed C.P.L,As. Nos. 1185 to 1204 of 1997 whereas affected officers originally working in O.M.G. and aggrieved by the said decision had separately, filed C.P.L.As. Nos. 1207 to 1224 of 1997.
8. Three appellants namely Mehr Sher Muhammad (C.A. 946 of 1993), Arshad Mahmood (C.A. 947 of 1993) and Ghulam Nabi Mangrio (C.A. 948 of 1993) have also similar grievances about their ‑adjustment of seniority and had filed C.P.L.As. Nos.480, 473 and 478 of 1993, wherein leave was granted on 11th December, 1993, which were thus assigned above numbers.
9. All the above matters substantially involve determination of identical questions of fact and law, therefore, they are being decided through common judgment.
10. Maulvi Anwarul Haq, Deputy Attorney‑General, Sh. Riazul Haq, Advocate Supreme Court and representative of officers aggrieved from impugned judgment of Federal Service Tribunal raised following contentions:‑‑
(i) The seniority among Inductee/deputationists and Section Officers already working in O.M.G. was re-fixed pursuant upon judgment of this Court reported in (PLD 1996 SC 771) (supra). Therefore, grievances agitated by the deputationists before Federal Service Tribunal was unjustified.
(ii) This Court in para. 9 of judgment reported as PLD 1996 SC 771 has already held that it was open for the deputationists to accept or refuse the offer regarding their absorption/appointment in O.M.G. Therefore, seniority of inductee/deputationists could be recognised only from their permanent transfer/absorption. Thus, impugned judgment passed by the Tribunal is not sustainable.
(iii) The setting aside of Notification dated 18‑8‑1996 and restoring seniority of inductees from the date of their deputation in accordance with O.M. No.8/17/90‑OMG‑1, dated 28‑1‑1991 is contrary to law and defeats provisions of Civil Servants Act, 1973.
(iv) Federal Service Tribunal could not undertake an exercise for interpretation of law, notification or instructions by giving its own findings when the Supreme Court had already recorded reasons on the same aspects. The Federal Service Tribunal, thus, exceeded in exercise of its authority and rendered judgment which is patently defective.
(v) Seniority of civil servants is reckoned in relation to other civil servant who belongs to same service, cadre or group within the purview of section 8 of Civil Servants Act, 1973. The deputationists having been inducted in the cadre of O.M.G. on obtaining their willingness by their permanent absorption and severing their lien in respective parent departments. Therefore, their seniority in the same group will be governed from the date of permanent induction in the new group; as rightly held by the departmental authority vide Notification dated 18‑8‑1996, which was impugned before the Tribunal by deputationists.
11. Hafiz S.A. Rehman, Senior Advocate Supreme Court, Mr. Ahmad Raza Khan Kasuri, Advocate Supreme Court, Mr. Fazal Elahi Siddiqui, Advocate Supreme Court and representatives of some deputationists, including the appellants in above three appeals addressed the Court and vehemently opposed the petitions. They argued that:‑‑
(i) The officers working in various departments were transferred on the demand of Federal Government against specified transfer quota in the cadre of Section Officers. Since they have been continuously performing functions as members of the O.M.G., therefore, on permanent absorption they were entitled to seniority from the date of initial transfer in O.M.G., as rightly held by the Federal Service Tribunal.
(ii) Notification No. 8/17/90‑OMG‑I, dated 28‑1‑1991 explicitly mentions the procedure of inducting Section Officers in B‑17 and 18 by transfer from other departments to the O.M.G. which clearly was an incentive. Besides, validity of this notification has been recognised by this Court in cases (i) Muhammad Zafar Khan v. Secretary, Establishment Division (1995 SCMR 1840) and (ii) Muhammad Arshad Sultan v. Prime Minister of Pakistan (PLD 1996 SC 771). The procedure specified therein is further strengthened by paragraph 12‑D of Basic Charter establishing Office Management Group contained in O.M. dated 27‑1‑1975, whereby officers appointed through transfer were to be assigned seniority in accordance with provisions of Civil Servants Act and Rules framed thereunder. Thus, instructions vide Office Memorandum issued by competent Authority had force of rules and had binding effect, therefore, objection raised on behalf of petitioners are misconceived.
(iii) Federal Government at previous occasions when contesting case of Muhammad Zafar Khan v. Secretary, Establishment Division (1995 SCMR 1840) Federation of Pakistan has pressed into service validity of O.M. No.8/17/90‑OMG‑I, dated 28‑1‑1991. The said O.M. was not specifically challenged even during the proceeding in case PLD 1996 SC 771 (supra). Therefore, it cannot take a different stand and object to its applicability in the case of deputationists.
(iv) Federal Government had framed rules for determining seniority, therefore, the O.Ms. issued at different occasions held the field. Now Civil Servants Seniority Rules have been framed vide SRO No.163(1)93, dated 28‑2‑1993 published in PLD Central Statute 1993 page 281. Therefore, till the promulgation of said rules right of seniority as regards inductees deputationists was determinable under the Office Memorandums.
(v) The Notification dated 28‑1‑1991 (reproduced in para. 4 (supra) specifically relates to question of inter se seniority of the inductees against reserved quota and Section Officers functioning in O.M.G. Therefore, specific rule relating to Officers of O.M.G. must prevail upon general rules of seniority applicable to the ministerial staff.
12. We have carefully considered above submissions in the light of material available on record and relevant case‑law.
It may be seen that crucial point requiring determination revolves around, the date when inductee/deputationists could be entitled to seniority. There is no doubt that twenty contesting deputationists were transferred from their respective departments in public interest. They un-denyingly have been continuously performing functions in the different sections of Federal Secretariat, since their respective posting in pursuance of initial transfer. The record manifestly discloses that competent Authority considering working capability of deputationists and for maintaining proficiency in the respective departments had sought their consent for retention in Office Management Group. It is the stand of deputationists that "Foreword" to O.M. No.7/12/81‑C.II‑I(B) OMG‑II, dated 4‑11‑1985 which regulated method of assigning seniority to the officers of various grades serving on deputation in the Federal Secretariat; which was later reaffirmed in the shape of Notification No. 8/17/90‑OMG‑I, dated 28‑1‑1991 and held the field when their consent was sought and no other rules in that behalf existed till then.
13. We may, however, mention here that the Government retains plenary authority to make rules in the interest of efficiency of service. Therefore, deputationists who have been already performing functions A in B‑17 or B‑18 of Office Management Group to the entire satisfaction of their superiors, after permanent absorption in said Group obviously became entitled to be regulated for purposes of seniority under the prevalent procedure, instructions and rules. Needless to say that special procedure or rules contained in O.M. dated 28‑1‑1991 would regulate seniority of inductee/deputationists in the absence of any specific rules or general provisions. To supplement this view reference can be made to the observations in case Brig. Sher Ali Baz v. The Secretary, Establishment Division (PLD 1991 SC 143), where this Court examined grievance of. In this case two appellants who had rendered service in the Army as Brigadier. They claimed seniority on the basis of equivalence in Grade but on the principle that general rule could not derogate from special provision their claim was rejected. Relevant observations being highly instructive are reproduced…
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