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Petitioner: MUHAMMAD ARSHAD SULTAN, SECTION OFFICER, CABINET DIVISION, ISLAMABAD VS Respondent: PRIME MINISTER OF PAKISTAN, ISLAMABAD
1997 PLC (C
1997 PLC (C.S.) 451
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui, Raja Afrasiab Khan and Muhammad Bashir Khan Jehangiri, JJ
MUHAMMAD ARSHAD SULTAN, SECTION OFFICER, CABINET DIVISION, ISLAMABAD and others,
versus
PRIME MINISTER OF PAKISTAN, ISLAMABAD and 31 others
Civil Appeals Nos. 128 of 1993 and 5 of 1994, decided on 27th June, 1996.
(On appeal from the judgments of Federal Service Tribunal dated 26‑7‑1992 passed in Appeal No.74‑R/91 and 11‑7‑1993 in Appeal No.315‑R/91, respectively).
(a) Civil Servants Act (LXXI of 1973)‑‑
‑‑‑‑S. 8‑‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.3‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑ Transfer on deputation‑‑‑Leave to appeal was granted to consider whether, civil servants who were initially appointed as Section Officer (BPS‑17) in Office Management Group on deputation from other departments and were absorbed subsequently by transfer of their services to Office Management Group, were entitled to claim seniority from the date of their joining as Section Officers on deputation or from the date of their regular appointment/absorption in Office Management Group as Section Officers.
(b) Civil service‑‑‑
‑‑‑‑‑‑Deputationist"‑‑‑Definition.
"Deputationist" is defined to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he status so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post.
ESTACODE, 1989 Edn., S1.No.29, para.6; Province of Punjab v. Ikramul Haq 1986 SCMR 1994 and Establishment Manual, Vol. I, Chap. IX ref.
(c) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑Ss. 8 & 25(2)‑‑‑Office Management Group Rules as contained in ESTACODE (1989 Edn.), R.9‑A‑‑‑Office Memorandum No.6/15/48 ME, dated 31st March, 1951‑‑‑Office Memorandum No.6/39/57‑ME, dated 5‑2‑1958‑‑‑Office Memorandum No. 7/12/81‑C III.B/LOMG‑II, dated 4‑11‑1985‑‑‑Instructions to regulate cases of transfer of civil servants from one office to another as laid down at p.335, ESTACODE (1989), S1. No.30, para.6‑‑‑Deputationist‑‑‑Seniority‑‑‑Determination‑‑‑For determining the seniority of a civil servant it is necessary that he must be a member of that cadre or service at relevant time‑‑‑When it is open to a Deputationist to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office‑‑‑If, however, the transfer is compulsory or result of conscription or alongwith the post and his work, he may count his previous continuous service in the grade towards seniority in that grade in the new office‑‑‑Where the civil servants at the time of transfer on deputation were not asked to exercise their option for absorption or transfer of their services to Office Management Group, which they had the right to refuse or not, Supreme Court remanded the case to departmental authority for re‑determination of the seniority qua such civil servants keeping in view para.6 of the instructions to regulate cases of transfer of civil servants from one office to another as published in ESTACODE at p. 335 at Serial No. 30 (1989 Edn.).
Federation of Pakistan v. Miss Mehr Jamal C.A. 1340 of 1990; Federation of‑ Pakistan v. Manzoor Hussain and others C.A.54 of 1991 distinguished.
Fazle Qadir v. Secretary, Establishment Division PLD 1988 SC 131; Appeal No.68(R) of 1989; Appeal No.350(R) of 1990; M. Afzal Khokhar and others v. Azmat Ali Afridi and others Civil Appeals Nos. 361, 362 and 363 of 1990; Muhammad Zafar Khan v. Secretary, Establishment Division 1995 SCMR 1840; Federation of Pakistan v. Miss Mehr Jamal C.A. 1340 of 1990; Federation of Pakistan v. Manzoor Hussain and others C.A. No.54 of 1991; ESCTACODE. 1989 Edn., S1.29, p.334; Province of Punjab v. Ikramul Haq 1986 SCMR 1994; Establishment Manual, Vol. 1, Chap. IX; ESTACODE, 1989 Edn. S1.30 and Brig. Sher Ali Baz and another v. Secretary, Establishment Division and others PLD 1991 SC 143 ref.
Shah Abdur Rashid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant (in C.A. No. 128 of 1993).
Raja Muhammad Bashir, Deputy Attorney‑General for Pakistan and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos.. 1 and 2 (in C.A. No. 128 of 1993).
Respondents Nos. 8, 25, 26 and 28 in person (in C.A. No‑128 of 1993).
Appellant in person (in C.A. No.5 of 1994).
Raja Muhammad Bashir, Deputy Attorney‑General of Pakistan and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent No. l (in C.A. No.5 of 1994).
Respondent No.3 in person (in C.A. No.5 of 1994).
Muhammad Munir Peracha, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate Supreme Court for Respondent No. 18 (in C.A. No.5 of 1994)
Respondents Nos. 24, 25, 29 and 30 in person (in C.A. No.5 of 1994).
Date of hearing; 15th May, 1996.
JUDGMENT
SAIDUZZAMAN SIDDIQUI, J.‑‑We propose to dispose of the abovementioned two appeals by a common judgment as the leave granting order in both the cases is the same.
2. The appellant in Civil Appeal No.128 of 1993 was appointed as Section Officer (BPS‑17) on acting charge basis in the Cabinet Division with effect from 7‑3‑1985, through Federal Public Service Commission (F.P.S.C.). His service was regularised on 14‑11‑1988. Private respondents 3 to 9 in this appeal were posted as Section Officers (BPS‑17) in Office Management Group (O.M.G.) on deputation from different departments during the period from 2‑8‑1976 to 10‑11‑1985. Respondents 3 to 9 were finally absorbed in O.M.G. through transfer of their services with effect from 18‑2‑1989. In the gradation list issued by the Establishment Division on 10‑7‑1990, respondents 3 to 9 were shown senior to appellant. The appellant, therefore, submitted representation against the gradation list which was rejected on 27‑1‑1991. Having failed to get redress from departmental authorities, the appellant approached the Federal Service Tribunal and filed service appeal which too was dismissed on 4‑5‑1992.
3. The appellant on Civil Appeal No.5 of 1994 was also appointed through F.P.S.C. in O.M.G. as Section Officer (BPS‑17) on acting charge basis on 12‑11‑1986 and his service was regularised with effect from 31‑12‑1989. Respondents Nos.2 to 31 in this appeal were sent on deputation from different departments as Section Officers (BPS‑17) between the period from 15‑3‑1979 to 20‑3‑1988. These respondents were finally absorbed. In O.M.G. as Section Officers on 26‑5‑1990 and 6‑5‑1991, through notification transferring their services to O.M.G. The appellant and respondents 2 to 31 were later promoted in BPS‑18 vide Notification dated 11‑5‑1991. In the gradation list issued by the Establishment Division respondents 2 to 31 were placed senior to appellant. The appellant filed departmental representation against the gradation list but he was informed that his request will be considered after the decision of Service Tribunal in some appeals which were pending before the Tribunal at the time. The appellant, accordingly, filed service appeal before the Tribunal praying that he may be declared senior to respondents 2 to 31 both in BPS‑17 and BPS‑18. The Service Tribunal, however, rejected the appeal of the appellant by order dated 11‑7‑1993.
4. Leave was granted in the above appeals to consider, whether the private respondents in the above appeals who were initially appointed as Section Officers (BPS‑17) in O.M.G. on deputation from other departments and were absorbed subsequently by transfer of their services to O.M.G., were entitled to claim seniority from the date of their joining as Section Officer on deputation or from the date of their regular appointment/absorption in O.M.G. as Section Officers.
5. The learned Tribunal in both the appeals held that private respondents in the above appeals were entitled to seniority from the date of their joining the O.M.G. in the Federal Secretariat, on deputation, which was earlier to the date of regularisation of the appointments of appellants as Section Officer (BPS‑17). In arriving at the above conclusion the learned Tribunal relied on the decision of this Court in the case of Fazle Qadir v. Secretary, Establishment Division PLD 1989 SC 131, Rule 9‑A of O.M.G. Rules appearing at page 1063 of ESTACODE (1988 Edition). The learned Tribunal also referred to the principles stated in the Forewords' of the Gradation List of O.M.G. Officers issued in 1987 and its two earlier decisions in Appeal No.68(R)/89 and Appeal No.350(R)/90 in support of its conclusion. We have heard the learned counsel for appellant in Civil Appeal No.128/93, the appellant in Civil Appeal No.5/94, Respondents 8, 25, 26 and 28 in Civil Appeal No.128/93 and respondents Nos.24, 25 and 30 in Civil Appeal No.5/94 and the learned Deputy Attorney‑General in the above appeals.
6. The main contention of the appellants in the above cases is that the private respondents, in these appeals having been appointed on deputation in O.M.G. were not entitled to claim seniority from the date of their deputation as during the period of their deputation they remained and continued to be the member of the service/cadre from where they were sent on deputation. It is contended that these deputationists became the members of O.M.G. from the date their services were transferred/regularised as Section Officer (BPS‑17) in O.M.G. It is, accordingly, contended that they could not claim seniority in O.M.G. prior to the date of their transfer to O.M.G. The appellants in support of their above contention have relied on an unreported decision of this Court in Civil Appeals Nos.361, 362 and 363 of 1990 (M. Afzal Khokhar and others v. Azmat Ali Afridi and others), decided on 31‑8‑1992.
7. The learned Deputy Attorney‑General and the private respondents in the above appeals on the other hand contended that in view of the law laid down by this Court in the case of Muhammad Zafar Khan v. Secretary, Establishment Division 1995 SCMR 1840, the respondents were rightly granted seniority as Section Officer from the date of their deputation in O.M.G. The respondents have also placed reliance on the following reported and unreported decisions of this Court in support of their contentions:‑‑
(i) Federation of Pakistan v. Miss Mehr Jamal (C.A.1340/90, decided on 22‑6‑1991);
(ii) Federation of Pakistan v. Manzoor Hussain and others (C.A. 54/91, decided on 11‑11‑1992); and
(iii) Sher Ali Beg and another v. Secretary, Establishment Division PLD 1991 SC 143.
Before considering the respective contentions of the parties in the above cases, it will be appropriate to examine first the statutory provisions relating to preparation of seniority list of civil servants and the manner of appointment against a post. Section 5 of the Civil Servants Act, 1973 (hereinafter to be called as 'the Act' only provides for appointment to All Pakistan Service or a Civil Service of the Federation or to a Civil post connected with the affairs of Federation including a civil post connected with defence, in accordance with the rules. Rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules 1973, (hereinafter to be called as 'the rules' only) provides that appointment to a post can be made either by promotion or transfer or by initial recruitment. The details of the procedure for appointment through promotion and transfer is contained in Rules 7 to 9 while the method of initial appointment is dealt with in Rules 10 to l7 of the Rules.
7. The preparation of seniority list of civil servants is dealt with under section 8 of the Act which reads as follows:‑‑
"8. Seniority.‑‑(1) For proper administration of a service, cadre or post the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
(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:
Provided that civil servants who are selected for promotion to a higher post in one batch on their promotion to the higher post in one batch, on their promotion to the higher post, retain their inter se seniority as in the lower post."
8. It may be mentioned here that through Ordinance No. III of 1984 ,published in the Gazette on 22‑1‑1984, the word 'post' in place of 'grade', .in subsection (1); the words "service or cadre" in place of "service, cadre or grade" in subsection (2) and word "Cadre" in place of "Grade" in subsection (3) of section 8 were substituted. Similarly in place of subsection (4) of section 8, the following new subsection (4) was substituted with effect from 1‑7‑1983:‑‑
"(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regul4r appointment to that post:
Provided that civil servants who are selected for promotion to a higher post in one batch shall on their promotion to the higher post, retain their inter se seniority as in the lower post."
Therefore, it appears that prior to the amendments in section 8 of the Act through Ordinance III of 1984, the seniority list of civil servants was prepared on the basis of such civil servants being member of a service, cadre or grade. However, after the amendment of 1983, the concept of preparation of seniority list of civil servants on the basis of being in a particular grade was done away with. Subsections (3) and (4) of section 8 of the Act, which respectively deal with the determination of seniority inter se of direct recruits, and seniority between the promotees inter se are not attracted in the present cases. The present cases are governed under section 8(2) of the Act which deals with determination of seniority of a civil servant in relation to other civil servants belonging to the same service or cadre. The question which, therefore, immediately arises for consideration in the cases is, whether the appellants and the private respondents belonged to the same service or cadre. To answer this question, it is necessary to examine the status of a deputationist in the office where he is working on deputation. The word 'deputation' or deputationist' are not defined in 'the Act' or in 'the Rules'. However, at page 334, Serial No.29, of ESTACODE (1989 Edition), ' the following interpretation of the word 'deputation' is given:‑‑
"Hitherto the term 'deputation' has not been formally defined. However, according to the practice in vogue a Government servant begins to be regarded as a 'deputationist' when he is appointed or transferred, through the process of selection, to a post in ‑a department or service altogether different from the one to which he permanently belongs, he continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
The above definition of the word 'deputation' came up for consideration before this Court in the case of Province of Punjab v. Ikramul Haq 1986 SCMR 1994. In that case, the respondent who was a permanent employee of Punjab Government and had lien against a post, was selected in the Foreign Affaris Group, Government of Pakistan through Lateral Entry Competitive Examination. He was, however, not confirmed against any post in the Foreign Affairs Group. He was compulsorily retired from service by the President of Pakistan in exercise of the powers conferred by section 13(ii) of the Act. He challenged his retirement before Federal Service Tribunal but his appeal was dismissed as not maintainable on the ground that being a deputationist from Provincial Government, he was not covered by the definition of 'civil servant' as given under the Act. He then challenged his retirement before the Punjab Service Tribunal, which allowed the appeal holding that the President was not competent to pass an order for the retirement of respondent who was a deputationist. The Province of Punjab challenged the decision of Punjab Service Tribunal before this Court which failed. During the course of discussion in the above case, this Court approved the interpretation of the word 'deputation' reproduced above in these words:‑‑
"The Federal Service Tribunal has referred to the Establishment Manual, Volume I, Chapter IX, to demonstrate that the departmental authorities in accordance with the practice in vogue have defined a ' deputatiohist' to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post in an officiating or a temporary capacity bit ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The departmental interpretation referred to by the said Tribunal as having the effect of statutory rule has still being retained, as is evident from the ESTACODE (1983 Edition) in Chapter III, Part II at page 217. This Court has also accepted the aforesaid definition of the term 'deputation' in Islamic Republic of Pakistan v. Israrul Haq and others PLD 1981 SC 531."
9. At page 335 of the ESTACODE,_ (Edition 1989), Serial No. 30, detailed instructions to regulate cases of transfer of civil servants from one office to another are laid down. The authority for these instructions is stated to be O.M* No.6/15/48‑ME, dated 31st March, 1951 read with O.M. No.6/39/57‑ME, dated 5‑2‑1958. These instructions deal not only with the cases of transfer in public interest but also with the cases of civil servants working on deputation. These instructions do not come in conflict with any of the provisions of the Act and, therefore, shall be deemed to be rules made under the Act by virtue of the provisions of section 25(2) of the Act. These instructions read as follows:‑‑
"Sl. No.30. Instructions to regulate cases from one office to another.‑‑The following instructions are issued .to regulate cases of transfers from one office to another of the ministerial staff employed in Pakistan Federal Secretariat and its Attached Departments with particular reference to the position of a deputationist in his parent office as well as in the borrowing office.
2. Should temporary transfers to other offices be allowed (i) as a normal course, or (ii) only if considered necessary in the public interest. Transfers should be allowed only in the public interest. The term 'public interest' is explained in paragraph 4 below.
3. Should a transfer be allowed (i) normally in the same grade, or (ii) only if it involves promotion. It does not appear necessary to lay down any hard and fast rules in this respect, since as stated in paragraph 2 above, transfers will be allowed only, if necessary, in the public interest, and it would, therefore, be immaterial whether a transfer is in the same grade or whether involves promotion.
4. What should be done to ensure that the claims to promotion of those already employed in the borrowing office have been satisfied.‑‑(a) It has been decided that, in fairness to the persons employed in the office in which a vacancy occurs, a person from another office should be appointed only if no person eligible ' and suitable for appointment is available in the office concerned. For this purpose, it should be placed on record by the appointing authority, or the Departmental Promotion Committee concerned, as the case may be, that none of the persons eligible concerned, for appointment from amongst the persons is available in the office. The reasons for declaring the persons employed in the office concerned as unfit for appointment to the post in question should be recorded by the authority concerned.
When a person is appointed by transfer in the circumstances stated above, his transfer should be considered to have been made in the public interest.
(b) When a transfer becomes necessary in the manner referred to above, it should be arranged between the offices concerned without a reference to any outside authority. It tray be pointed out that a transfer should be made only if it is permissible under the relevant rules relating to recruitment to the post or service concerned. In this connection attention is also invited to the Establishment Division Office Memorandum No.54/2/48‑Estt. (ME), dated the 21st November, 1949. (Reproduced at pages 161‑‑165 in Chapter XXII Recruitment to Ministerial Establishment, Establishment Manual, Vo1.III).
5. The position in his parent office of the person transferred temporarily to another office.‑‑When a transfer has been made in the public interest as explained in paragraph 4 above, the interests of the person concerned should be protected in his parent office until he is confirmed in the borrowing office. For this purpose, when a vacancy occurs in a higher grade in his parent office, the person concerned should be considered therefore, if he is selected for promotion in accordance with the relevant rules he should be appointed formally (and not actually) to the post in the higher grade Similarly, if he was officiating, at the time of his transfer, in a post higher than the one in which he was employed permanently, he should be considered for confirmation in the higher post when his turn comes. This would enable him to occupy on reversion to his parent office, the position which he would have occupied had he not been away on deputation. No financial benefit of the 'next below rule' should, however, be allowed to him in respect of a promotion nor should he be placed in an advantageous position vis‑a‑vis his colleagues in his parent office, by virtue of his promotion, if any, in the borrowing office. In other words, he should be considered, while on temporary deputation to the other office, as a member of his parent office for the purpose of confirmation, promotion, seniority etc. He should be allowed to revert to his parent office with the agreement of both the lending and the borrowing offices.
6. Seniority on transfer from one office to another.‑‑(i) The instructions in the foregoing paragraphs regulate the position of a deputationist in his parent office. As regards his seniority in the office to which he is transferred it should be determined in the following manner:‑‑
(a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office.
(b) When a person is compulsory transferred to another office as a result of conscription, or alongwith the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in the grade in the new office.
It may be pointed out that separate seniority lists be prepared in respect of (i) persons appointed on a permanent or a quasi permanent basis; and (ii) persons appointed on a purely temporary basis, and the person obtained by transfer from another office should be assigned his appropriate place, in accordance with the above infructions in the list of the persons to which category he belongs.
(ii) The seniority of a person who went on deputation from one office to another before 31st March, 1951 should be determined in his new office, in accordance with the following instructions:‑‑
(a) In order to get the benefit of continuous service in a grade, a deputationist be permanent in that grade in his parent office, and not merely eligible for being made permanent. In case, however, he is subsequently made permanent in a grade in his parent office from a retrospective date, his seniority should be changeable in the borrowing Ministry/Department, and he should be considered to be permanent on the date of transfer, and given the benefit of his continuous service in the borrowing Ministry/Department in that grade;
(b) A deputationist can get the benefit of his continuous service to a grade in the borrowing Ministry/Department only if he is appointed in the borrowing Ministry against a regular post in accordance with 'the roster prescribed in the Establishment Division Office Memorandum…
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