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Petitioner: SAAD ASHRAF, J.S. and Others VS Respondent: MUHAMMAD ASHRAF NADEEM and others JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Saeeduzzaman Siddiqui, Sh. Ijaz Nisar Title:SAAD ASHRAF, J.S. and Others vs MUHAMMAD ASHRAF NADEEM and others
JUDGMENT
Reported As: 1998 SCMR 1687 Result: Order accordingly Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, ACTG. C.J.---We propose to dispose of the abovementioned seven civil appeals by a consolidated judgment as the points of law arising in these appeals are common. ' Civil Appeal No,233 of 1995: This appeal arises from the order of Federal Service Tribunal dated 7-6-1994. Leave was granted in this case to consider, whether the seniority of appellant was fixed in accordance with the judgment of the learned Federal Service Tribunal dated 12-5-1991. The appellant, an officer in Grade 19, was inducted in the Secretariat Group by way of transfer under section 10 of Civil Servants Act 1973 (hereinafter to be referred as 'the Act') in the year 1982 and was allowed seniority in that service from the date of his absorption in the Secretariat Group. The appellant, however, claimed seniority from the date he entered Grade 19. The appellant after exhausting departmental remedies, approached the Federal Service Tribunal through Appeal No,262 R/89 which was heard alongwith six other similar appeals and was disposed of on 12-5-1991 as follows:-- "In pursuance of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal is that the seniority of the appellants shall be determined in accordance with
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provisions of Office Memorandum No,2/2/75-ARC, dated 12-4-1976 subject to the re-examination of the order of the induction of the appellant Dr. Abdul Hameed Qureshi in Appeal No,271 (R)/89." ' It appears that the appellant in his Appeal (No, 262(R)189 before the Federal Service Tribunal, besides claiming that he was entitled to get this seniority determined in the Secretariat Group in accordance with O.M. No,2/2/75-ARC dated 12-4-1976, also claimed seniority over the respondents who were inducted in the Secretariat Group through lateral entry test but their induction was declared illegal. They were accordingly, either reverted or removed from service but were later re- inducted in the service after their approval from Federal Public Service Commission (FPSC). The appellant, therefore, claimed that these lateral entrants (respondents) in the Secretariat Group, were entitled to reckon their seniority only from the date of their reappointment as Deputy Secretary in the Secretariat Group. The learned Member (Mr. Rasheed-ud-Din Arshad) who heard Appeal No,262(R)/89 filed by the appellant alongwith the Chairman of the Federal Service Tribunal, while agreeing with the judgment of the Chairman of the Federal Service Tribunal, appended the following further observation in his concurring note:-- "I have had the benefit of going through the judgment written by the learned Chairman. While I agree with the relief granted to the appellants, I would like to add that in the decision of Federal Service Tribunal in the appeal of Syed Ali Mukatada Wahidi v. Establishment Division and others (1984 PLC (CS) 546) relief was granted to the appellant vis-a-vis the lateral entrants whose appointments as Deputy Secretary were considered irregular and who were reverted/removed from service as a result of exercise under section 12-A of Civil Servants Act, 1973 and were asked to appear before the Federal Public Service Commission for determining their suitability for appointment as Deputy Secretary on regular basis. In the order of the Federal Service Tribunal it was directed that such Officers would take their seniority from the dates they were re-appointed. The Establishment Division appealed against the order of the Federal Service Tribunal before the Supreme Court of Pakistan (Civil Appeal No,670 of 1984 - Establishment Secretary v. S.A.M. Wahidi) but the appeal of Establishment Division was dismissed. The concluding sentence of the judgment of Supreme Court is: 'The judgment of the Federal Service Tribunal is unexceptionable and the appeal is dismissed with costs'. 13. The appellant has sought the same relief in the appeal under consideration. In my view, this relief should also be allowed to him following the decision of the Supreme Court." ' The appellant relying on the above-quoted observation of the learned Member of the Federal Service Tribunal, recorded in his Appeal (No,262(R)/89) filed a Miscellaneous Application No,70/91 in Appeal No,262(R)/89 before the Federal Service Tribunal, seeking addition of these observations in the operative part of the judgment of the Federal Service Tribunal. The learned Federal Service Tribunal, however, did not accede to the request of the appellant which was declined with these observations:-- "8. The main issue for determination of seniority was as to from which date the appellant was to reckon his seniority in the Secretariat Group. The date had been determined in unambiguous terms as discussed in the judgment. The seniority of the appellant vis-a-vis the respondents, therefore, would need re-determination and that is that job of the department to do as so many factors have to be taken into consideration for re-fixing the seniority. The note appended by the learned Member will have to be taken into consideration by the department while predetermining the question of seniority but it cannot be included in the operative part of the judgment in view of the provisions of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973. The reference by the appellant to the provisions of Rule 22 of the Service Tribunals (Procedure) Rules, 1974 is totally misconceived as the prayer made by him tends to seek review of the judgment which power does not vest in the Tribunal and reference in this respect is made to the decision of
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the Supreme Court reported in 1986 SCMR 806. Moreover, the appellant has stated that he has preferred appeal before the Supreme Court and therefore, review application cannot be maintained in view of the provisions of Order 47 of the Code of Civil Procedure. The application is, therefore, dismissed." ' The appellant moved another Miscellaneous Petition No,106/93 in Appeal No,262 (R)/89 which was also dismissed on 23-8-1997, as under:-- "2. The departmental representative has clarified that since the judgment of the Tribunal was upheld by the Hon'ble Supreme Court, the petition from the appellant (Dr. S.A. Mahmood) had not succeeded, as it had been dismissed. In fact there lied no appeal or miscellaneous petition, whatsoever against the judgments of the Hon'ble Supreme Court and of Tribunal, and no deviation or follow-up action can now be taken, except as per points of relief contained in the said judgments. As such miscellaneous Petition No,106/93 of Dr. Sh. A. Mehmood is not meaningful and competent and it should be dismissed.' ' Undeterred by the dismissal of his two earlier miscellaneous applications, the appellant field another Miscellaneous Petition No,171/93 in Appeal No,262 (R)/89 and contended that in pursuance of the direction of the learned Federal Service Tribunal dated 20--5-1993, the Law and Justice Division has sent its advice in the case which may be forwarded by the Federal Service Tribunal to the Establishment Division for compliance. Mr. Rana Rifat Saeed, the learned Member of the Federal Service Tribunal who initiated the order on the above miscellaneous petition declined the request of appellant, as under:-- "The petitioner had pleaded that since the Bench on 20-5-1993 had directed the Establishment Division to refer the case to Ministry of Law and Justice for examination in the light of judgment of the Tribunal with particular reference to the rejoinder of the appellant for clarification of seniority Rules in the light of Establishment Division's O.M. Dated 12-4-1976 and advice had come which should now be conducted by the learned Tribunal to Establishment Division for assigning him said seniority, as recommended in the advice of the Law Division. It was made clear to the petitioner that the Tribunal was neither an Administrative Department over and above the Establishment Division nor a countersigning/endorsing body for the recommendations of Law Division in order to ask the Establishment Division to give the desired seniority to the petitioner/appellant. But the Tribunal is a judicial forum which decides the appeals/petitions on facts and merits, as obtained from the appellants/petitioners and comments objections submitted by the respondents with particular reference to relevant Rules/Law and directions of the Hon'ble Supreme Court if ordered. As such the Tribunal cannot resume an unlawful jurisdiction to countersign/endorse the advice of the seniority to press upon the respondents Division to assign a desired seniority to the appellant/petitioner who in fact have no fresh cause of grievance after his Appeal No,262(R)/89 stood decided by the Tribunal on 12-5-1991 and, upheld by the Hon'ble Supreme Court on 29-10- 1991 while dismissing his petition as having no force. The instant Petition No,171/93 stands dismissed, as it cannot have legal effect against the judgment of the Hon'ble Supreme Court dated 29-10-1991. However, at best the respondents Division i.e, the Establishment Division which has precedent in service and personnel matters over other Ministries/Divisions may consult any other Division if required, to decide the issue of seniority of the appellant/petitioner and other co-petitioners i.e, M/s. Akbar Hayat Khan and S. Ibrahim shah in the light of judgment of the Tribunal dated 12-5-1991 and of Hon'ble Supreme Court dated 29-10-1991. The other petitions Nos.173 and 174/93 filed by the co-petitioners mutatis mutandis also stand dismissed." ' The learned Chairman of the Federal Service Tribunal, however, did not agree with the order of learned Member (Mr. Rana Rifat Saeed) and allowed the miscellaneous petitions filed by the appellant and others as follows:--
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"As a consequence the Establishment Division vide its letter dated 28-8-1993 submitted to the Tribunal the opinion of the Law and Justice Division in compliance with the directions of the Tribunal and the relevant paragraphs of the letter dated 28-8-1993 are reproduced below: "2. Establishment Division would go by the Law and Justice Division advice after its acceptance by Federal Service Tribunal 3. In view of the above, the Federal Service Tribunal are requested to pass final orders in the miscellaneous petition of Dr. Sheikh Aleem Mahmood and communicate the same to this Division. ' I am of the view that interpretation of the O.M. Dated 12-4-1976, referred to above, tendered by the Law and Justice Division is just, fair and equitable and the Establishment Division is expected to honour its commitment as made in its letter dated 28-8-1993, to avoid unnecessary litigation as the appellants-petitioners are indulged in litigation for their rights since 1989. ' For the foregoing reasons, I held that the Miscellaneous Application No,34/92 filed by Dr. Sh. Aleem Mahmood, and so also by the petitioners M/s S. Ibrahim Shah and Akbar Hayat Khan for implementation of the judgment of the Tribunal still remain unimplemented, and would allow all the three Applications No,171/93 in Appeal No,262(R)/89; 173/93 in Appeal No,268(R)/89 and 174/93 in Appeal No,293(R)/89 with their directions that judgment of the Tribunal in all the three appeals may be implemented in the above terms. DATED (Sd.) CHAIRMAN) 10-10-1993 17-7-1993 ORDER OF THE TRIBUNAL ' By virtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal is expressed in the opinion of the Chairman and miscellaneous applications No,171/93 in Appeals Nos.262(R)/89; 173/93 are allowed with the directions that the judgment of the Tribunal in all three appeals may be implemented." ' The Establishment Division thereafter issued a memorandum being No .2/22/91-CP.2 dated 15-12- 1993 informing the appellant that in implementation of the judgment of the Federal Service Tribunal dated 12-5-1991, the seniority of the appellant was refixed and his name was entered at Serial No,19-A, below Mr. Javed Ahmed Noel (Serial No,19) and above Ali Nawaz Bahio (Serial No,20) in the gradation list of Secretariat Group Officers (BPS-19) as on 1-11-1987, at Serial No,8-A below Mr. Abdul Rashied Ghauri (Serial No, 8) in gradation list of Secretariat Group Officers (BPS-19) as on 1- 4-1990 and at Serial No,85-A, below Mr. Salim Khan (Serial No,85) in gradation list of Secretariat Group Offices (BPS-20) as on 15-12-1993. ' The appellant, apparently, dissatisfied with the placement of his name in the seniority lists as aforesaid filed Appeal No,187(R)/1994 on 6-6-1994 which was dismissed as follows:-- "2. The above letter of the Establishment Division had in fact been issued towards implementation of the earlier judgment of the FST dated 12-5-1991 and prima facie it seems that the appellant is not satisfied with the implementation/fixation of seniority and by way of submission of instant appeal he virtually wants a review of the earlier judgment of the FST which in fact had also been upheld by the Hon'ble Supreme Court vide judgment dated 19-10-1991. Accordingly the appeal requiring review is totally misconceived and incompetent. 3. Further the appellant has impleaded respondent No,3, Mr. Muhammad Hassan Bhutto (who is already promoted as Secretary in B-22, respondent 4, Nazar Muhammad A. Shaikh (who is promoted as Additional Secretary 13-21) & other Joint Secretary (B-20), he should not implead respondents 3 and 4 who are in B-22 and 21 at the moment. The appeal is, therefore, also technically hit by misjoinder of parties. 4. At the bar, the appellant has admitted that he has no fresh cause of grievance and he only wants re-fixation of seniority which, according to him, had not properly been assigned by the Establishment Division. Since he has no fresh case of grievance and the instant appeal is more a belated link with his last Appeal No,262(R)/89 which had already been decided by the FST on 12-5-
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1991, the appeal also technically suffers on this account too, as it has been submitted without any real grievance. Under the circumstances, the appeal is dismissed in limine." ' Against the order of the learned Federal Service Tribunal, leave was granted as aforesaid. CIVIL APPEALS NOS.71 AND 72 OF 1995 ' These two civil appeals are filed against the judgment of Federal Service Tribunal dated 5-6-1994 passed in Service Appeal No,18(R)/1994 filed by one Muhammad Ashraf Nadeem' (Respondent No,1 in Civil Appeals 71 and 72 of 1995) against Saad Ashraf (appellant in Civil Appeal No,71 of 1995), Secretary Establishment Division (appellant in Civil Appeal No,72 of 1995) and 9 others. Respondent No,1 was appointed Deputy Secretary through lateral entry test with effect from 17-7-1974 vide Notification No,22/6/74-AV (76) dated 17-7-1974. In gradation list of the Secretariat Group Officers (BPS-19) issued in 1975 the name of respondent No,1 appeared at Serial No,162. The services of respondent No,1 were however, terminated w.e.f, 26-12-1977. Respondent No,1 challenged his termination before the Federal Service Tribunal in Appeal No,22(L)/1982 which was allowed. He was accordingly, reinstated in service vide notification dated 23-6-1986 with all consequential benefits. The period during which respondent No,1 remained out of service was treated as on duty. Respondent No,1 was promoted as Joint Secretary (BPS-20) vide Notification dated 17-9-1987. It appears that in the gradation list of officers of Secretariat Group (BPS-20), issued on 1-11-1987 the appellant was shown junior to many officers and his name appeared at Serial No,219 of the list. On his representation, respondent No,1 was allowed benefit of increment and fixation of his pay in (BPS-20) w.e.f, 19-5-1983 from the dated his junior (Abudllah J. Memon) was promoted to (BPS-20). He was also allowed re-fixation of his seniority in (BPS-20) by placing his name over Mr. Nazir Ahmed who was junior to him in lower rank vide notification dated 10-8-1988. The matter appears to have rested there. However, on 1-4-1993, respondent No,1 once again represented to Secretary, Establishment Division and relying on the judgments of the learned Federal Service Tribunal in the cases of Syed Ali Muqatada Wahidi (1984 PLC (C.S.) 546), Muhammad Rafiq Asghar (Appeal No,101(R) of 1988), prayed as follows:-- "2. In the light of the judgments mentioned above, I request that my seniority may also be reckoned from the date of my appointment as Deputy Secretary i.e, 17-7-1974 and my name may be placed immediately after Mr. Roshan Ali Mangi." ' The Secretary Establishment, however, turned down the request of respondent No,1 on 29-11-1993 as under:-- ' Subject: GRADATION LIST OF APUG OFFICERS OF SECRETARIAT GROUP ' The undersigned is directed to refer Kashmir Affairs and Northern Affairs Division O.M. No, E.7/6189, dated 3-4-1993, enclosing therewith an application of Mr. Muhammad Ashraf Nadeem, of that Division, on the above subject and to say that his case has been examined in the Establishment Division and the position is that the seniority of Mr. Muhammad Ashraf Nadeem has been correctly fixed under subsection (4) of section 8 of the Civil Servants Act, 1973. Therefore, his request for re- fixation of seniority is not maintainable. The officer may please be informed accordingly. (Sd.) Fayyaz H. Zaidi), Section Officer (CP.2.)" ' Respondent No,1 then preferred Appeal No,18(R)/1994 on 13-1-1994 before the learned Federal Service Tribunal, which was allowed as follows:-- "8. The contention of the appellant is that he may be given seniority retrospectively from 17-7-1974, the date when he was appointed as Deputy Secretary and thereafter all benefits be given due to that seniority. This request can hardly be considered as in the gradation list of Joint Secretaries issued in the year 1985 wherein he was shown junior to respondents which he did not challenge. However, he made representation claiming for seniority over Mr. Nazir Ahmed, Joint Secretary, who
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was junior to him in the lower grade, and his representation was accepted and he was allowed seniority over Mr. Nazir Ahmed whose name appeared at S.No,135 in the list of 1987, vide Office Memorandum dated 10th August, 1988 from the Establishment Division. Under the same O.M. He was also allowed the benefit of increments and fixation of pay in (BPS-20) with effect from 19-5- 1983 (the date of promotion of his another junior Mr. Abdullah, J. Memon to (BPS-20) to 17-9-1987, but without the benefit of seniority. The cause of grievance accrued to the appellant when his promotion to (BPS-20) was ante-dated in 1988 as such objection that he did not challenge seniority of 1987 is irrelevant as that time his promotion made in 1987 was not ante-dated. The crux of the matter is that the appellant in all respects was senior to the respondents as Deputy Secretary but due to unfortunate incident his services were terminated and he was reinstated with all benefits and from the orders issued from time to time it is clear that he was in continuous service right from his appointment as Deputy Secretary till his reinstatement viz. 23-6-1986 and was eligible promotion to (BPS-20) on the basis of that seniority. This has been accepted by the Government whereupon he was promoted to (BPS-20) with effect from 17-9-1987.. Therefore, the contention of respondent No,2 that the appellant accepted seniority of 1981 is repelled as at that time the appellant was not in service and his services stood terminated and there was no occasion for him to agitate at that time. He was reinstated in 1986. He made representation against the seniority position of Mr. Nazir Ahmed as it was on 1-11-1987 and also to ante-dation of his promotion which was accepted by the competent authority and the appellant was made senior to him. Not only this but, as stated above, he was given pro forma promotion in (BPS-20) from 19-5-1983, when one of his junior Mr. Abdullah J. Memon was promoted in (BPS-20) from 19-5-1983, with the benefit of increments and fixation of pay in (BPS-20). By virtue of this, the claim of the appellant stands admitted and we see no reason as to why he should be deprived of his due seniority as Joint Secretary which he achieved by entering into service through lateral entry as Deputy Secretary much earlier than the respondents under section 8 (4) of the Civil Servants Act, 1973. It is an admitted position that on the issue of gradation list of (BPS-20) officers in 1987 the appellant made representation and accordingly his request was accepted and the name of the appellant was placed above the name of Mr. Nazir Ahmed who was at Serial No,135 in the gradation list of 1987, therefore, the objection of Establishment Division that he did not challenge seniority list of 1987 is not tenable. Respondent No,2, Mr. Saad Ashraf was promoted as Joint Secretary (BPS-20) with effect from 4-8-1983, but since the appellant was granted ante-dated promotion in BPS-20 with effect from 19-5-1983, and none of the private respondents agitated against this antedation, as such the appellant has to rank senior to Mr. Saad Ashraf, respondent No,2. 9. As regards the objection of time bar the appellant soon after the acceptance of appeal filed by Mr. Roshan Ali Mangi, by the Tribunal and also upheld by the Supreme Court made representation on 1-4-1993 wherein it was prayed that the principle of determination of seniority of lateral entrants as laid down in the case of Syed Ali Muqtada Wahidi; Muhammad Rafiq Asghar etc., may also be extended to his case and his name may be placed just below the name of Mr. Roshan Ali Mangi. His representation was rejected by the Establishment Division vide O.M. Dated 29-11-1993 and decision was conveyed to him vide endorsement dated 16-12-1993. In the meanwhile, seniority list of Joint Secretaries (BPS-20) was issued as on 15-2-1993. He then filed this appeal on 13-1-1994 and the appeal is not time-barred. 10. For the foregoing reasons, we accept the appeal and direct the Establishment Division to 'recast the seniority of the appellant in the rank of Joint Secretary in the terms indicated above. 11. This order is ex parte in respect of private respondents namely M/s. Syed Navaid Ali Nasir, Iftikhar Ahmed Khan, Zulfiqar Khan. Dr. Sahibazada Masood Ali, Muhammad Zafar Mian, Dr. Khalid Hassan Bokhari, Muhammad Rashid, S. Farogh Naveed, and Shamsul Haq and they have neither bothered to file objections nor attended the Tribunal to contest their cases."
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Leave was granted in these two appeals against the judgment of the Federal Service Tribunal to consider the following contentions:-- "4. It is, inter alia, alleged that the appeal before the Tribunal was barred by time as the gradation list of 1975 was revised in the year 1981 against which respondent No,1 did not file any representation when he was reinstated with all back benefits. That the respondent was promoted on the basis of such seniority and gradation list published in the year 1987 which too was not challenged. That on his failure to clear Federal Public Service Commission or by the precedent under section 12(a) of the Civil Servants Act, 1973 and he having failed in his Lateral Entry Examination his appointment as Deputy Secretary was not regularised, therefore, he could not have claimed seniority over those who had been regularised earlier within the meaning of section 8(4) of the Civil Servants Act. ' We grant leave to appeal to consider the above contentions. " CIVIL APPEALS NOS.285, 286 AND 287 OF 1995 ' These three civil appeals are directed against the consolidated judgment of the Federal Service Tribunal dated 21-7-1994 rejecting Service Appeals Nos.204(R)/1994, 216(R)/1994 and 218(R)/1994 filed by Javed Ahmed Noel (appellant in Civil Appeal No,285/95), Dr. Abdul Hameed Qureshi (appellant in Civil Appeal No,286/95) and Akbar Hayat Gandapiir (Appellant in Civil Appeal No,287/95). For the sake of convenience, we will refer the Appellant in each case by his name. Leave was granted in the above three appeals as follows:-- "Mr. Zakaullah Jan has filed comments in writing. It appears from the impugned judgment at page 18 of the paper book of C.P. 439/94 that, before the Service Tribunal, Mr. Zakaullah Jan had stated that the case of the petitioner had been reviewed in the Establishment Division in the light of the observations contained in S.A.M. Wahidi's case; whereas the comments filed in writing herein, contrary stand is taken that S.A.M. Wahidi's case is distinguishable. 2. Leave is granted to consider whether S.A.M. Wahidi's case is applicable in the instant case or not." CIVIL APPEAL NO.285 OF 1995 ' Javed Ahmed…
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