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Petitioner: MUHAMMAD YOUSAF and 4 others VS Respondent: ABUDL RASHID and others
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Mukhtar Ahmed Junejo, Ajmal Mian Title: MUHAMMAD YOUSAF and 4 others vs ABUDL RASHID and others Case No.:Civil appeals Nos.227 to 243, 937 to 945 of 1993 Appeals Nos.156(R)/90
JUDGMENT
Reported As: 1996 SCMR 1297 Result: Order accordingly Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---This judgment will govern the disposal of abovementioned 29 civil appeals as leave was granted in all these cases to consider the following common question of law:- "8. Ch. Muhammad Akram, learned Advocate, Supreme Court appearing for the petitioners has urged that the majority view of the Tribunal runs counter to the recent judgment of this Court in the case of Muhammad Nawaz Khan, Assistant, T&T Directorate-General, Islamabad and another v. S. Muhammad Ijaz Raashid, Assistant T&T Directorate-General, Islambad and others (PLD 1993 SC 10) wherein inter alia following was held;- ' The ratio of the judgments cited above as well as the reasoning advanced in the judgment of Service Tribunal in Appeal No,17(R)/89 and the statutory provisions and the rules is that the direct recruits appointed against reserved seats having fallen vacant earlier ten time shall rank senior to the promotes holding officiating appointment though promoted earlier than the direct recruits'. 9. Whereas Mr. Munir Piracha, learned counsel for the private respondents has submitted that the judgment of this Court in the case of Khushi Muhammad and 3 others v. The General Manager (Now Vice-Chairman), Pakistan Western Railway, Headquarters Office, Lahore and 27 others (PLD 1970 SC 203), covers the case of private respondents wherein following as been held:--
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' We have not been shown any rule to uphold this method of determining seniority and none is discoverable on general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50 :50 between the direct recruits and the departmental promotes merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that confirmation in, the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promote, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade.' 10. We are inclined to grant leave to consider whether the majority view of the Tribunal is in consonance with the law as enunciated by this Court. Leave is accordingly granted." 2.The dispute in Civil Appeals Nos.227 to 243/93, 937 to 945/93 and 192/94 relates to seniority in the cadre of 'Assistant' between the appellants and private respondents in these appeals, inter se. The appellants and the private respondents in Civil Appeals Nos.227 to 243/93 are working in Planning and Development Division, Government of Pakistan, Islamabad, the appellants and private respondents in Civil Appeals Nos.937 to 945/93 are the employees of Finance Division, Government of Pakistan, Islamabad, while the appellant and private respondents in Civil Appeal No,192/94 are serving with the Department of Film and Publication, Government of Pakistan. The dispute in Civil Appeals Nos.683 and 684/94 relates to seniority inter se between the appellants and private respondents, who are employed in the Ministry of Interior, Government of Pakistan, Islamabad, in the cadre of Stenographer'. The appellants in Civil Appeals Nos.227 to 243/93 were directly recruited as 'Assistants' while private respondents in these appeals were promoted on ad hoc basis as 'Assistants' in the vacancies reserved in the quota for direct recruits. In Civil Appeals Nos.937 to 945/93 the position is just the reverse. The appellant in these cases were promoted on temporary basis as 'Assistant' while respondents in these appeals were recruited directly as 'Assistant'. The appellants in Civil Appeals Nos.683 and 684/94 were promoted as Stenographers in the vacancies reserved in the quota for direct recruits while the private respondents in these appeals were appointed as Stenographers directly. For the sake of convenience and to avoid confusion, instead of referring the parties as appellants and respondents or by their names, we will refer them as direct recruits and departmental promotes only, as the appellants and the private respondents in these cases belong to either of the two categories only. 3. It is not disputed before us that the departmental promotes in the above appeals entered the service in the cadre of 'Assistant'/ Stenographer', earlier than the direct recruits. It is, however, contended by the direct recruits that the departmental promotes having been appointed against the vacancies reserved in the quota for direct recruits, their appointment was in violation of section 9 of the Civil Servants Act, 1973 (hereinafter to be referred as the Act only) and therefore, their regular appointment in the cadre of Assistants/Stenographers, could only take place from the date the vacancy occurred in the quota reserved for departmental promotes. It is accordingly, contended on behalf of direct recruits that the departmental promotes having been appointed in the vacancies reserved in the quota for direct recruits, ranked junior to direct appointees though their dates of appointments as Assistant/Stenographers may be earlier to the dates of appointments of direct recruits. In support of the above contention, the learned counsel for the direct recruits relied on the following cases:-- (1) Federation of Pakistan v. Azam Ali (1985 SCMR 386);
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(2) Ghulam Ahmed v. Federation of Pakistan (1992 SCMR 957), and (3) Muhammad Nawaz Khan v. Muhammad Ijaz Rashid (PLD 1993 SC 10). 4. The learned counsel for the departmental promotes on the other hand contended that some of the departmental promotes were promoted against the posts reserved in the quota for direct recruits before the enforcement of the Act while others were promoted after coming into effect of the Act. With regard to the cases of departmental promotes who were promoted before enforcement of the Act the learned counsel contended that they will rank senior to direct recruits who were appointed later in point of time, in view of the law laid down by this Court in the case of Khushi Muhammad v. General Manager, P.W.R. (PLD 1970 SC 203). Regarding the case of departmental promotes, who were promoted after the Act was promulgated against the post reserved for direct recruits in the quota, the learned counsel argued that they too would rank senior to direct recruits, if the later had entered the service on a date subsequent to the appointment of departmental promotes in view of O.M. No,1/8/73-ARC, dated 20-11-1973, O.M. No,4/4/R.6, dated 5- 12-1983 and O.M. No 1/20/88-R.6 dated-7-8-1988, issued by Establishment Division Cabinet Secretariat. 5. The despoilments in Civil Appeals Nos.227 to 243/93, who were appellants before the Federal Service Tribunal (hereinafter to be called the Tribunal' only) had challenged in their appeals, the order of departmental authority dated 27-12-1989, rejecting their representation against the seniority list issued/circulated by the department on 28-11-1988, on the ground that they had failed to challenge the final seniority list issued earlier on 7-8-1985. The appeals were heard by a Full Bench of the Tribunal consisting of two members and its Chairman. The appellants herein, who were respondents before the Tribunal opposed the appeals both on the ground of limitation as well as on merits. The Tribunal unanimously rejected the plea of appellants that the appeals of respondents before the Tribunal were not maintainable as their representation before the departmental authority were time-barred. However, on the merit, one of learned members of the Tribunal (Ch. Hasan Nawaz) relying on the case Federation of Pakistan v. Azam Ali (supra), came to the conclusion that as the respondents were appointed against the vacancies reserved the quota for direct recruits, they could not claim seniority over the appellants who were direct appointees in their quota, though the dates of appointment of direct appointees were latter in time than those of departmental promotees. The learned member did not agree with the view expressed by the Tribunal in its earlier decision in the case of Muhammad Zakria Khan v. Secretary, Establishment Division and others (1990 PLC (C.S.) 45). The learned Chairman of the Tribunal (Justice (Retd.) Syed Ally Madad Shah) and one of its learned members (Mr. S.M. Ishaq), however, disagreed with the views expressed by Mr. Ch. Hasan Nawaz and held that those departmental promotes, who were appointed against the vacancies reserved in quota for direct recruits, before the enforcement of the Act, their cases stood regularised in terms of O.M.S. Dated 20-11-1973, and 5-12-1983. In respect of category of those promotees who were appointed against the vacancies reserved for direct recruits in the quota, after coming into force of the Act, the learned Chairman and one of its learned member (Mr. S.M. Ishaq) took the, view that they too were entitled to seniority over direct recruits in view of the provisions of section 12-A of Act and the law laid down by the Tribunal in the case of Muhammad Zakria Khan (supra). The learned Tribunal, accordingly, by a majority of 2 to I set aside the order of departmental Authority rejecting the representation of respondents and remanded the cases for a fresh decision on the seniority of the appellants and private respondents in these appeals, in the light of the majority decision of the Tribunal. 6. The appellant in Civil Appeal No,192/94 was also the appellant before the learned Service Tribunal. He claimed seniority- before the Tribunal over private respondents in the case on the ground that private respondents were promoted as ' Assistants' against the vacancies reserved for direct recruits in quota, and therefore, notwithstanding the earlier dates of appointment of "
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departmental promotes, he was entitled to be declared senior to them. The learned Chairman (Justice (Retd.) Abdul Razzaq A. Thahim) and a learned member (Mr. Misbah Ullah Khan) of the Tribunal unanimously held that the appellant was not entitled to claim seniority over private respondents in view of the decision of Tribunal in Muhammad Zakaria Khan's case (supra). 7. The appellants in Civil Appeals Nos.937 to 945/93 were also appellants before the learned Service Tribunal. They claimed seniority over the private respondents, on the ground that their appointments as 'Assistants' though against the vacancies reserved in the quota for direct recruits, were made much earlier to the appointments of respondents who were direct appointees. The learned Chairman (Justice (Retd.) Abdul Razzaq A. Thahim) and a learned member (Mr. S.M. Ishaq) of the Tribunal rejected the contention of appellant on the ground that on legal plain the appeals were time-barred and on merit, the appellants having been appointed against the vacancies reserved in the quota for direct recruits, could not claim seniority over the later in view of the law laid down by this Court in the case of Muhammad Nawaz Khan v. Muhammad Ijaz Rashid (PLD 1993 SC 10). The case of Muhammad Zakaria Khan (supra), was held inapplicable by the Tribunal. 8. In Civil Appeals Nos.683 and 684 of 1994, the appellants who were departmental promotes as Stenographers, challenged the seniority list circulated by department on 28-4-1993 and 3-7-1993, wherein promotes were shown junior to direct recruits (respondents). They claimed seniority from the dates of their appointments as Stenographer. The department rejected their contention. Their appeals before the Tribunal met the same fate as the Tribunal found that the dates of regular appointment of appellants were subsequent to that of direct appointees. From the above-stated facts, it would appear that the view expressed by the learned Tribunal in the above cases was not consistent. 9. It is an admitted position in the above cases that the departmental promotes were appointed against the vacancies reserved in the quota for direct recruits. It is also not disputed that the direct recruits were appointed much after the appointments of the promotes in the cadre of Assistants/Stenographers. The contention of the learned counsel appearing for the direct recruits in all the cases jointly is that in view of the law laid down by this Court in the case of Federation of Pakistan v. Azam Ali (supra) a departmental promote if promoted against the quota reserved for a direct recruit, would be deemed to be a regular appointee from the date a vacancy occurred in the quota reserved for departmental promote. The learned counsel specifically relied on the following observations in Azam Ali's case (supra), appearing at pages 393 and 394:-- "It follows from section 9 of the Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent. In favour of the direct recruits. The departmental candidates were, therefore, not eleigible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while , interpreting rule 7 of the Appointment, Promotion and. Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the
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Act. The view taken of the rule 7 in isolation is not in accord with the express provisions of section 9 of the Act." 9. A similar question was again considered by a Bench of this Court in the case of Ghulam Ahmad v. Federation of Pakistan (1992 SCMR 957) in which officiating appointment of a departmental promote in the vacancy reserved for a direct recruit came under consideration. It was observed as follows by this Court, at page 963 of the report:-- "10. The words 'to officiate' used in Para. 121(l.)(b) of the Code mean to act or to discharge an office for or on behalf of some other person. Where a reservation or a quota for promotion existed, and as pointed out in Para. 120 of the Code it is not in public interest to fill that post from outside the prescribed quota, either on account of its non-availability of officers or otherwise, then an officiating arrangement from a residual source is made. As soon as compliance with the paragraph 120 of the Code is possible, the arrangement is brought to an end. In this case exactly that has been happened. That appellant himself was subsequently placed in junior Class I for which reservation existed and was promoted through proper channel. His contention that at one stage the post of Assistant Accounts Officer was upgraded into Class-I post, would not entitle him to claim absorption in a grade Class-I service having its own cadre and Grade. The induction into a service as a Class-I Officer is one thing and to be a Class-I post-holder is another. 11. We find that a promotion on the strength of paragraph 121(1)(b) of the Code did not entitle the appellant to claim seniority in the higher promoted grade. He had to wait till in accordance with the reservation and the quota a vacancy became available for him in accordance with the provision made in para. 120 of the Code. It happened subsequently. Therefore, the appellant could not claim induction in Grade-18 seniority list in 1976 notwithstanding his officiating promotion under paragraph 121(1)(b) of the Code much earlier. His case like those of his colleagues, notwithstanding the use of the word "ad hoc" or absence of it, continues to be governed by paras. 120 and 121(1)(b) of the Code and by no other provision, read with General Principles of Seniority and section 9 of the Civil Servants Act." 10. The cases of Federation of Pakistan v. Azam Ali and Ghulam Ahmad v. Federation of Pakistan (supra) were referred with approval in the case of Muhammad Nawaz Khan. v. Muhammad Ijaz Rashid (supra), as follows:-- "After the enforcement of the above Act, the matter came up for consideration before this Court in the case of Federation of Pakistan v. Azam Ali (1985 SCMR 386) wherein too, the dispute regarding inter se seniority amongst the direct recruits and the promotes and also their appointment against reserved quotas was in issue. After incorporating the relevant provisions of the Civil Servants Act it was held that the direct recruits appointed against vacancies having fallen vacant prior in time in the reserved quota for direct appointment shall rank senior to those appointed earlier but not against a vacant seat in the reserved quota meant for the promotes. It is worthwhile to reproduce the relevant portion on pages 393 and 394 of the cited judgment. ' The above dictum was followed in subsequent case of Malik Ghulam Rasool v. Government of Punjab (1985 SCMR 1107) wherein it was declared that promotion/appointment of petitioner in that case being on ad hoc basis in excess of quota reserved for promotes and against a post meant for initial recruitment, on arrival of rightful person, he would stand reverted in normal course. In a recent judgment in case Ghulam Ahmad v. Federation of Pakistan (1992 SCMR 957) the above principle, more or less, was reiterated in pares. 10 and 11 of the (Saiduzzaman Siddiqui, J) judgment as follows:- ' The ratio of the judgments cited above as well as the reasoning advanced in the judgment of Service Tribunal in Appeal No,17(R)/89 and the statutory provisions and the rules is that the direct recruits appointed against reserved seats having fallen vacant earlier in time shall rank senior to the promotes holding officiating appointment though promoted earlier than the direct recruits."
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11. The learned counsel for departmental promotes, in reply, relied on the case of Khushi Muhammad v. General Manager, P.W.R. (supra) and contended that it is against all canons of justice, equity and good conscience that a person who entered in service at an earlier date be relegated to a junior position only because at the time he was appointed there was no vacancy in the quota reserved for departmental promotes. The learned counsel in support of his arguments relied on the following observations in Khushi Muhammad's case (supra):-- "By placing the direct recruits in the grade as senior to the departmental promotes, although the latter had entered the grade earlier than the former, the impugned seniority list deems, by way of a fiction, that the direct recruits were the holders of the posts reserved for them in the grade on fifty- fifty basis, although they were not actually appointed to those posts and whenever appointed they should be deemed to have been appointed from the date from which the vacancy of their quota was to be filled. In other words, vacancies arising in their quota are deemed as permanent vacancies reserved for them, although, in the meanwhile, departmental promotes have been appointed against those vacancies. The latter have, therefore, to be relegated to the position of juniority as against the direct recruits whenever appointed to the vacancies reserved for persons from their quota. We have not been shown any rule to uphold this method of determining seniority and none is discoverable on general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50:50 between the direct recruits and the departmental promotes merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter see All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that-confirmation in the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promote, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade." 12. To dispose of the legal contentions arising in these appeals, it will be convenient if we divide cases of departmental promotes into two categories, namely, (i) the departmental promotes who were promoted against the quota reserved for direct recruits before coming into force of the Act, and (ii) departmental promotes promoted against the quota reserved for direct recruits after coming into force the Act. 13. The Act came into force on 26th of September, 1973 while the case of Khushi Muhammad v. Federation of Pakistan (supra) was decided by this Court on 13-2-1970. Therefore, the seniority of a promote and direct recruit inter se in a grade, where the departmental promote entered the service or grade before coming into force of the Act is to be determined in accordance with the rule laid down by this Court in Khushi Muhammad's case (supra). The rule laid down in Khushi Muhammad case (supra) provided that if a departmental promote entered the grade at a date which was earlier to the entry of a direct recruit in that grade, the former would rank senior to latter although the former might have been appointed in a temporary or officiating capacity against a post reserved under the quota for direct recruit. 14. The case of departmental promotes, who were promoted in the vacancies reserved for direct recruits after coming into force of the Act are, however, on a different footing, and therefore, the rule laid down in Khushi Muhammad's case (supra) is not attracted in these cases. In Khushi Muhammad's case (supra) this Court specifically observed that no statutory rule was referred which provided for reservation of vacancies in 50:50 proportion between the departmental promotes and direct recruits. It was also observed in Khushi Muhammad's case (supra) that no
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rule was cited to support the contention that an incumbent holding the post in a same grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade. The ratio in Khushi Muhammad's case (supra), therefore, proceeded on the basis that there was neither any statutory backing for the 50:50 quota fixed for departmental promotes and direct recruits nor there existed any statutory rule which provided that an incumbent holding a post on a temporary basis or in officiating position should rank lower in seniority to one who is appointed later in the same grade against a reserved post. After the decision of this Court in Khushi Muhammad's case (supra) some important developments took place -which may be noted here, as they have important bearing on the legal issues under examination in these cases. After the decision of this Court in Khushi Muhammad's case (supra) the Establishment Division through O.M. No,1/16/69-D-11, dated 31st December, 1970 issued the following General Principles of Seniority: "General Principles of Seniority: A. Direct recruits through the Federal Public Service Commission.--(i) Officers recruited…
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