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Petitioner: ZAKRIA KHAN BABAR VS Respondent: GOVERNMENT OF PAKISTAN
1993 P L C (C
1993 P L C (C.S.) 14
[Federal Service Tribunal]
Before Ch. Hasan Nawaz and Muhammad Ismail Members
ZAKRIA KHAN BABAR
Versus
GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 8 others
Appeals Nos. 149 and 308(L) of 19$8 and Appeal No. 182(L) of 1991, decided on 18th October, 1992.
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Judgment of Supreme court in service matter‑‑‑Civil servant affected by such judgment was not before Supreme Court as a party in respondent civil servant's appeal‑‑‑Effect of the said judgment on the rights of civil servant not a party in that appeal as also before Service Tribunal‑‑‑Any action taken or order made adversely affecting interests of civil servant not before the Court as a party would not be effective against him‑‑‑Supreme Court judgment was thus, not binding against those civil servants who were not impleaded as respondents.
1987 SCMR 899 and 1988 SCMR 620 ref
(b) Civil service‑
‑‑‑‑ Appointment in Grade‑17 with retrospective effect by an executive order‑ Validity‑‑‑Respondent civil servant having been appointed in Grade‑16, remained in that grade from date of his appointment viz. 27‑8‑1975 to date of his promotion on 20‑7‑1981‑‑‑Status of Grade‑17 could not legally be bestowed upon such civil servant with retrospective effect, even by competent Authority‑‑‑Civil servant by no means could be legally made what he had never been.
1990 SCMR 1216 and 1990 SCMR 1623 ref
(c) Civil Servants Act (LXX of 1973)‑‑‑
‑‑‑‑S. 9(1)‑‑‑Promotion to a higher post‑‑‑Respondent civil servant who initially belonged to legal group could not be promoted in a different cadre viz. investigation group.
(d) Civil service‑‑‑
‑‑‑‑Seniority list‑‑‑Notification of specified date whereby respondent (civil servant) was shown senior to civil servant (appellant) suffered from illegality, was ab initio void and of no legal effect whatever for respondent belonging to a different cadre could not be included in the list belonging to cadre of different category to which civil servant (appellant) belonged.
(e) Civil service‑‑‑
‑‑‑‑Limitation‑‑‑Limitation would not run against a void order.
(f) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal‑‑‑Limitation‑‑‑Respondent's initial appointment being in Grade‑16, he could not be placed in Grade‑17 with retrospective effect from the date of his initial appointment‑‑‑Civil servant came to Service Tribunal after his departmental appeal against respondent's promotion with retrospective effect and placing his name (respondent's) in the seniority list proved abortive‑‑‑Appeals were thus, within time‑‑‑Notification whereby respondent was promoted with retrospective effect from the date of his initial appointment being void ab initio and of no legal effect was set aside‑‑‑ Respondent's promotion in the different cadre from the one which to he belonged and consequential seniority list, in which he was shown senior to civil servant was set aside‑‑‑Civil servant was to be considered for promotion with effect from the relevant date in accordance with law.
Masood Ahmad Riaz for Appellant.
Hafiz Tariq Naseem for Respondent No. 1 to 3.
Hamid Shabbir for Respondent No. 4.
Respondents Nos. 5 to 9: Ex parte.
Respondents Nos. 5 to 9 are not impleaded in Appeal No. 182(L) of 1991.
Date of hearing: 8th October, 1992.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑;‑We are concerned in this judgment with the disposal of three appeals under section 4 of the Service Tribunals Act, 1973 between the same parties and giving rise to identical questions of law and fact.
2. Mr. Zakria Khan Babar, now Deputy Director, Federal Investigation Agency (B‑18), is the appellant whereas Government of Pakistan through the Secretary Establishment Division, Secretary Ministry of Interior, Director General, Federal Investigation Agency and Ch. Khadim Hussain, Deputy Director, FIA are respectively respondents Nos. 1 to 4 in all the cases.
3. In Appeals Nos. 149(L)/1988 filed on 12‑6‑1988 and 308(L)/88 instituted oil 27‑9‑1988, M/s. Ejaz Elahi Rana, S.M. Shujat AIL Muhammad Ajmal, Shahryar Mughal and Fazal Muhammad Chaudhry, now in service with the Agency as Deputy Directors, have been impleaded as respondents Nos. 5 to 9 respectively. These respondents were promoted as Deputy Directors (B‑18) by order dated 28‑4‑1988, with the exception of Mr. Fazal Muhammad Chaudhry respondent No. 9 whose case for promotion was deferred because of the pendency of a departmental inquiry against him. The prayer against them was that (a) the order of their promotion dated 28‑4‑1988 may be set aside; (b) that the appellant may be declared as senior to them on account of having been recruited as Assistant Director (B‑17) with effect from 1‑2‑1977 and (c) the Director General (respondent No. 3) may be directed to consider the appellant for promotion as Deputy Director (B‑18) with effect from the date these respondents were promoted.
4. Appeals Nos. 149(L)/88 and 308(L)/88 have become infructuous because of subsequent developments in so far as respondents Nos. 5 to 9 are concerned. As we ‑see from the pleadings of respondents Nos. 1 to 3 filed in Appeal No. 308(L) of 1988, seniority has been given to the appellant as Assistant Director (B‑17) with effect from 1‑2‑1977 on the advice of the' Establishment Division tendered through O.M. dated 20‑5‑1989. Seniority list Of Assistant Directors (B‑17) has also been accordingly revised and the appellant has been placed senior to respondents Nos. 5 to 9 with reference to his date of appointment on 1‑2‑1977. Respondents Nos. 5 to 9 were appointed ,~ Assistant Directors on different dates in the month of June,, 1978.
5. The appellant was promoted as Deputy Director (B‑18) alongwith Ch. Khadim Hussain respondent No.4 and Mr. Fazal Muhammad Chaudhry respondent No. 9 by notification dated 5‑12‑1989. After this promotion, he was given presumptive seniority as Deputy Director with respondents Nos. 5 to 9 in accordance with their seniority as Assistant Directors alongwith benefit of pay fixation under F.R. 26(c) with effect from 28‑4‑1988, as borne out by O.M. dated 20‑3‑1991. He was consequently shown senior to these respondents in the seniority list of Deputy Directors circulated on 2‑5‑1991. The result is. That dispute now remains only between the' appellant and Ch. Khadim Hussain respondent No, 4 in all the three appeals, and we propose to make an address to the facts only in so far as they relate to them.
6. The appellant was appointed as Assistant Director (B‑17) in the .Federal Investigation Agency with the following notification on 9‑2‑1977:
"Government of Pakistan Ministry of Interior, States and Frontier Regions (Interior Division)
Islamabad the 9th February, 1977.
NOTIFICATION
No. 3/72/76‑ FIA‑II. Mr. Zakria Khan Babar, Administrative Officer, Grade‑16, Malaria Control Programme, Health Department, Government of Balochistan is, on transfer, appointed as Assistant Director, Grade‑17, in the Federal Investigation Agency, Headquarters at Islamabad with effect from 1st February, 1977 until further orders. He assumed charge of the post on 1st February, 1977 (F.N,).
(Sd.) (Ghulam Mustafa) Section Officer"
7. After the enforcement of Martial Law in the year 1977, the Government decided to review all cases of promotion and appointment made on political considerations during the period from 1‑1‑1972 to 5‑7‑1977. This exercise was carried out under section 12A of the Civil Servants Act, 1973 read with rule 4 of the Federal Public Service Commission (Functions) Rules, 1978, under which the Commission was empowered to test the civil servants appointed or promoted at any time between 1‑1‑1972 and 5‑7‑1977 and make a report to the President on whether they were fit to hold the post to which they had been appointed or promoted. The requisite test was given to the appellant by the Commission and he was declared suitable for retention in the post to which he had been originally appointed on 1‑2‑1977.
8. On 12‑12‑1982, a tentative seniority list of directly recruited Assistant Directors (B‑17) was issued, where the appellant was shown junior to Mr. Khadim Hussain respondent No. 4 whose date of appointment was mentioned as 27‑8‑1975. Objections were invited against this list to be filed by 31‑12‑‑1982. On 15‑12‑1982, the appellant filed a representation against this list claiming seniority over respondent No. 4, about whom it was alleged that he had been recruited on 27‑8‑1975 only in Grade‑16 and that he came on to Grade‑17 for the first time on 20‑7‑1981 on promotion. Another, allegation was that he belongs to legal cadre and that his name should not have been mentioned in the seniority list which was in respect of Assistant Directors of Investigation Cadre. It was prayed that his name be removed from the seniority list to safeguard the rights of directly recruited Assistant Directors of Investigation Cadre.
9. He was informed by the Director‑General's Office through letters dated 6‑2‑1983 and 14‑2‑1984 that the matter regarding his seniority was under consideration in consultation with the Establishment Division and that he will be informed of the seniority position in the event of a final decision. However, neither the question of appellant's seniority over respondent No. 4, nor that of the latter's right to be shown in the seniority list of Investigation Cadre could be finally decided and the matter went through different developments as would appear from the following facts.
10. Ch. Khadim Hussain respondent No. 4 was appointed as Assistant Director (Legal) for the first time through Notification No. A/282/1548/E, dated 29‑8‑1975 where it was mentioned that he was being appointed in the FIA on deputation. Since his grade had not been mentioned in the said notification, it was superseded by a subsequent notification of 8‑12‑1975 where it was mentioned that he had been appointed as Assistant Director (Legal) in BPS‑16 on transfer on deputation. On this notification it was pointed out by the Ministry of Religious Affairs that the appellant did not hold any lien and that he severed all connections with that Ministry in consequence of his appointment in the FIA. Eventually, he was appointed as Assistant Director (Legal) with the following Notification on 12‑3‑1976:
"No. A/282/Admn‑1/76 Office of the Director‑General Federal Investigation Agency G‑7/2, Islamabad. Dated the 12th Mapch,1976.
NOTIFICATION
In pursuance of Section Officer's Government of Pakistan Ministry of Religious Affairs, Islamabad No. F.7(115)74‑Admn., dated 7th January, 1976. Mr. Khadim Hussain, Field Officer is appointed as Assistant Director (Legal) Group in this Organisation on 27‑8‑1975 (F.N.) on purely temporary and Ad hoc basis and is posted in the office of Dy. Director/FIA, Multan Circle-II, until further orders.
He will be governed by Federal Government Regulations regarding his pay and allowances as for he is in F.I.A.
This supersedes this office Notification No. A/282/21429‑27/E, dated the 2nd December,
1976. (Sd.)
(Muhammad Rafiq)
Dy. Director/Director‑General"
11. Subsequently, on introduction of section 12‑A of the Civil Servants Act, 1973, his appointment was reviewed and he was found suitable by the F.P.S.C. for retention in the FIA as Assistant Director (Legal) in Grade‑16 and the competent authority's approval was accordingly conveyed through Establishment Division's O.M. dated 21‑11‑1979.
12. He represented against his appointment in Grade‑16 instead of Grade‑17 to Secretary, Interior Division which was forwarded to the Establishment Division. No order was, however, passed on this representation and he was ultimately promoted as Assistant Director in Grade‑17 by order dated 20‑7‑1981 with effect from 15‑7‑1981. On 23‑7‑1981, he made a representation to the Secretary, Establishment Division where it was prayed that on reconsideration, he "may be treated a case of direct appointment instead of promotion and may be approved for appointment in Grade‑17" to take his seniority in that grade with effect from the date of his original appointment on 27‑8‑1975. On having been informed through Interior, Division's Memorandum dated 18‑10‑1981 that his representation had been rejected he came in an Appeal (No. 113(R) of 1981) to the Tribunal under section 4 of the Service Tribunals Act, 1973, impleading only the Secretary, Establishment Division and the Director‑General, FIA, with the prayer for a direction to "(a) amend the order dated 15‑7‑1981 to notify the appointment of the appellant as Assistant Director in Grade‑17 with effect from 27‑8‑1975, (b) grant seniority to him in Grade‑17 from 27‑8‑1975; and (c) adjust his pay by granting him arrears due to difference in pay scales of Grade‑16 and 17 from the same date."
13. This appeal was disposed of by judgment dated 12‑10‑1982 with the following observations:
3. Though the appointment of the appellant made initially to serve in Grade‑17 post and drawing the pay of Grade‑16 post, was illegal, nevertheless, the appellant continued to serve in a Grade‑17 post for no fault of his. Under FR‑31, a person appointed to officiate in a post has to draw the pay of that, though by a special order under FR‑35, his pay can be curtailed. The learned counsel for State on the strength of FR‑35 contends that from the date of appointment in Grade‑16, namely 27‑8‑1975, the appellant can be given the minimum of Grade‑17 post, but that he cannot be given increments or a regular Grade‑17 post from a date earlier than the date on which a formal order of his appointment in Grade‑17 was made. We see no substance in this contention. The appellant had been continuously performing the duties of a Grade‑17 officer, but was drawing the pay in Grade‑16, though the appointment was irregular. There is no formal order of curtailing his pay in Grade‑17, as provided for under FR‑35. There is neither a general o, den nor a special order in this respect, we are, therefore, of the opinion that the appellant shall be entitled to draw the pay of Grade‑17 together with the increments as raised from time to time, with effect from the date of his appointment.
4. The appellant in his appeal also claimed seniority, but at the time of arguments he contended that his was an isolated post and his interest does not conflict with any other officer. Anyhow, since other Grade‑17 Officers have not been made party, we do not pass any order with regard to appellant's seniority vis‑a‑vis others.
5. The appeal is accepted to the extent indicated above. Parties to bear their own costs."
14. After the judgment had been announced, the Ministry of Interior addressed the following u.o. note to Establishment Division:
"Subject:‑Representation for promotion to Grade‑17 with effect from the date of appointment (27‑8‑1975)‑‑ Case of Mr Khadim Hussain Assistant Director (Legal) F.I.A.
Reference Establishment Division's u.o. note No. 32/2/80‑C‑III(B), dated 5‑10‑1981.
2. Mr. Khadim Hussain has since filed an appeal (No. 113(R)/1981) with the Service Tribunal, Islamabad. The Tribunal has accepted his plea in the order passed by them on 12th October, 1982, a copy of which has been sent by the Tribunal's office to the Establishment Division vide No. 138, dated 14‑10‑1982.
3. On the basis of the said decision of the Tribunal, Mr. Khadim Hussain has assumed charge as Assistant Director (Grade‑17), with effect from 27th August, 1975 i.e. the date of his initial appointment as Assistant Director (Grade‑16). The FIA HQ have forwarded the charge assumption report for issue of a notification. Establishment Division are requested to advise whether a notification, as above, be issued by this Ministry."
15. The Establishment Division's advice conveyed through the following u.o. dated, 3‑11‑1982 was to the following effect:
"Reference Ministry of Interior's u.o. No. 3/90/76‑FIA‑II, dated the 20th October, 1982 on the above‑noted subject. In this connection it is stated that unless an appeal is intended to be filed in the Supreme Court by the F.IA. against the judgment of the Federal Service Tribunal in the case of Mr. Khadim Hussain, Assistant Director (Legal) F.IA., the order of the Tribunal may be implemented."
16. Thereafter, on 11‑11‑1982 the Ministry of Interior issued the following notification:
"TO BE PUBLISHED IN THE GAZETTE OF PAKISTAN PART‑I
Government of Pakistan Ministry of Interior Islamabad the 11th November, 1982.
NOTIFICATION
No. 3/90/76‑FIA‑II. In partial modification of this Ministry's Notification No. 3/90/76‑FIA‑II, dated 20th July, 1981, Mr. Khadim Hussain, Js appointed as Assistant Director (Grade‑17), Federal Investigation Agency, `Islamabad, on regular temporary basis, with effect from 27th August, 1975 and until further orders.
(Sd.) (Ghulam Mustafa) Section Officer"
17. It appears from the record that on the strength of this notification, respondent No. 4 started making efforts to contrive his promotion as Deputy Director in Grade‑18 with effect from 20‑8‑1980, the date on which he had completed five years service in Grade‑17. However, the result was quite the reverse, in that the earlier notification of i1‑11‑1982 was cancelled by the Ministry of Interior through notification dated 7‑3‑1985 which makes the following reading:
"Government of Pakistan Ministry of Interior
Islamabad, the 7th March, 1985.
NOTIFICATION
No. 3/90/76‑FIA‑II. This Ministry's Notification No. 3/90/76‑FIA‑II, dated 11th November, 1982 (which was in partial modification of this Ministry's notification of even number dated 20th July, 1961) appointing Mr. Khadim Hussain, as Assistant Director (B‑17) on regular temporary basis, with effect from 27th August, 1975, is hereby cancelled.
(Sd.) (Ghulam Mustafa) Section Officer"
18. After his representation against this notification failed to produce any result, respondent No. 4 came to the Tribunal with another Appeal (No.147(R)/85) on 11‑6‑1985. There again, only the Establishment Secretary and the Secretary, Interior Division were impleaded as respondents. The prayer was that notification dated 7‑3‑1985 may be set aside as illegal with an order of restoration of notification of.ll‑11‑1982.
19. On dismissal of this appeal by judgment dated 26‑4‑1989, respondent No. 4 filed a petition before the Supreme Court for leave to appeal against it. The Secretaries of Establishment Division and Interior Division (respondent Nos. 1 and 2) appeared through their standing counsel and filed a written statement where it was stated that they have decided "not to contest this petition for special leave to appeal filed by Khadim Hussain petitioner". It further said. that the "respondents have decided to concede to the stand taken by him". It was requested that petitioner's claim may be accepted.
20. On the respondents' pleadings, the following order was passed by the Supreme Court on 29‑10‑1989:
"Muhammad Haleem, CJ.‑‑Upon hearing the petitioner we convert this petition into an appeal, and allow it in terms of the concession by the counsel for the respondents in his written application that the respondents "have decided to concede to the stand taken by the petitioner". In view of this concession, the impugned order is set aside.
The petitioners in Civil Miscellaneous Petition No. 321‑R of 1989 and in an unnumbered civil miscellaneous petition, have prayed to be impleaded as parties in the main petition, as they contend that their right would be affected by the
concession of the respondents. Since they were not parties in the appeal before the Service Tribunal, they have no locus standi to challenge the concession at this stage. Accordingly, the petitions are rejected."
21. Thereafter, by Notification No. 3/41/86‑FIA‑II, dated 5‑12‑1989 respondent No. 4 was promoted as Deputy Director (B‑18) "with immediate effect and until further orders" alongwith Mr. Zakria Khan Babar appellant, Fazal Muhammad Chaudhry respondent No. 9 and one Afzal‑ur‑Rehman, with the approval of the competent authority conveyed through Establishment Division's O.M. No. 32/8/89‑CP.4, dated 27‑11‑1989.
22. The appellant addressed an appeal to the Prime Minister on 28‑12‑1989 against respondent No. 4's promotion as Deputy Director and his seniority, followed by various reminders. On 4‑2‑1990 a tentative seniority list of Deputy Directors was issued where respondent No. 4 was mentioned against serial No. 1 above the appellant's name. He filed objections against this list on 24‑2‑1990. Ultimately, on 2‑5‑1991 final seniority list of Deputy Directors Investigation (B‑18) was issued by the FIA, wherein respondent No. 4 was shown senior to the appellant. He addressed another representation to the Prime Minister on 1‑6‑1991 against this seniority list.
23. When it failed to bear any fruit, he filed Appeal No. 182(L) of 1991 on 14‑9‑1991 with the prayers that (a) respondent No. 4's name may be deleted from the seniority list of 2‑5‑1991 or in the alternative, the appellant may be shown senior to him and (b) respondent No. 1 may be directed to consider the appellant for promotion to B‑19 with effect from 1‑2‑1989, the date on which he completed the prescribed period in Grade‑17 and Grade‑18. Relief sought in Appeal No. 149(L)/88 is more or less the same.
24. This is the gist of the appellant's case: respondent No. 4 was appointed as Assistant Director in Grade‑16 (Legal Group) in the FIA on 27‑6‑1975 on purely temporary and ad hoc basis on transfer from the Ministry of Religious Affairs, by virtue of Notification dated 12‑3‑1976. He could not legally be brought into the investigation cadre and in any case there is absolutely nothing whatever on the record to show that he was allowed to change his cadre by the competent authority in accordance with law. He was found suitable for retention by the F.P.S.C. as Assistant Director (Legal) in Grade‑16 on review under section 12‑A of the Civil Servants Act, 1973 and the competent authority's necessary approval was conveyed through Establishment Division's O.M. dated 21‑11‑1979. It is on account of these facts that notification dated 11‑11‑1982 appointing him an Assistant Director Grade‑17 in the FIA "on regular temporary basis with effect from 27‑8‑1975 and until further orders" LS illegal. Consequently, the appearance of his name in the seniority list of investigation cadre in any capacity is also illegal and ineffective against the appellant's rights.
25. As for the pleadings of respondents Nos. 1 to 3, they have supported the appellant's case in all its material particulars. Seniority as Assistant Director (Investigation) in Grade‑17 has already been acknowledged and granted to him with effect from 1‑2‑1977. It can be easily spelled out of their pleadings that their case is that notification dated 11‑11‑1982 was without justification and illegal and that, in so far as they are concerned, it was cancelled on the advice of the Establishment Division by notification dated 7‑3‑1985. About respondent No. 4's promotion by notification dated 5‑12‑1989 and consequential presence of his name at the top of seniority list of Deputy Directors (Investigation) circulated on 2‑5‑1992, over that of the appellant, the excuse is that this was done on account of the Supreme Court's order dated 29‑10‑1989 in respondent No. 4's appeal. They have gone a step further to say that the concession made by the standing counsel of respondents Nos. 1 and 2 in his written statement filed before the Supreme Court was at the instance and under written instructions of the then Minister for Interior, which were motivated by political considerations.
26. Respondent No. 4's case is that he was appointed as Assistant Director (B‑17) on regular basis w.e.f. 27‑8‑1975 in FIA vide notification dated 11‑11‑1982 and that the subsequent notification of the Interior Division dated 7‑3‑1985 "stands to have been declared illegal, without jurisdiction and of no legal effect" by the Supreme Court of Pakistan in his appeal filed against the Tribunal's judgment dated 20‑4‑1989, which "also stands set aside". The effect of Supreme Court's order is that the original notification of 11‑11‑1982 "stands restored with all the rights accrued" in. his favour. There is no provision under which the Federal Service Tribunal can re‑examine or hear a matter/issue once decided by the Supreme Court of Pakistan". Since no petition was made within seven days for review of Supreme Court's judgment, it is "now binding and time‑barred".
27. These pleadings in view, the first point which requires determination is regarding the effect of Supreme Court's order dated 29‑10‑1989 and whether it is binding on the appellant. There is no doubt about the fact that the Supreme Court's judgment was the result of written statement filed by the standing counsel on behalf of Establishment and Interior Divisions, where respondent No. 4's claim was…
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