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Petitioner: ABDUR RASHID VS Respondent: SECRETARY, PLANNING AND DEVELOPMENT DIVISION, GOVERNMENT OF PAKISTAN
1993 P L C (C
1993 P L C (C.S.) 220
[Federal Service Tribunal]
Present: Syed Ally Madad Shah, Chairman, S.M. Ishaq and Ch. Hasan Nawaz, Members
ABDUR RASHID and others
Versus
THE SECRETARY; PLANNING AND DEVELOPMENT DIVISION, GOVERNMENT OF PAKISTAN and others
Appeals Nos.156(R) to 163(R), 166(R), 167(R), 168(R), 170(R), 171(R), 173(R), 178(R),183(R) and 184(R) of 1990, decided on 14th October, 1992.
Per Syed Ally Madad Shah, Chairman, S.M. Ishaq, Member agreeing;‑‑‑Ch. Hasan Nawaz, Member, Contra‑‑‑
(a) Civil Servants Act (LXXI of 1973)---
‑‑‑‑S. 12‑A‑‑‑Government's Office Memorandum No.l/8/73‑ARC, dated 20th November, 1973‑‑‑Government's Office Memorandum dated 5‑12‑1983‑‑ Seniority‑‑‑Scrutiny of cases under provision of S.12‑A, Civil Servants Act, 1973, relating to appointment and promotion of civil servants during the period from 1st day of January, 1972 to the fifth day of July, 1977‑‑‑Civil servants in Grades 1 to 16 were excluded from the purview of scrutiny subsequently‑‑ Government's Memorandum, dated 20th November, 1973, provided modality for regularization of service of such civil servants‑‑‑Service Tribunal's Full Bench decision in Muhammad Zakria Khan's case reported as 1990 PLC (C.S.) 45,. which was given effect to by Establishment Division, whereby it issued instructions for implementation of decision to the effect that civil servants would be deemed to have been regularised from the dates of their original appointments by promotion and no separate order was necessary to be passed, whether afforded blanket cover to the irregularities in the appointments or promotions made during the relevant period between 1‑1‑1972 to 5‑7‑1977, being a question of interpretation of S.12‑A, another Bench of the Service Tribunal of equi‑composition could dissent from‑‑‑Such view having been adopted and followed by competent Authority and instructions having been issued by Establishment Division for implementation of same, judgment rendered in 1990 PLC (C.S.) 45, could not be made a target of attack in present case by Service Tribunal unless same was set aside by Supreme Court‑‑‑Service Tribunal adopting decision in 1990 PLC (C.S.) 45 found that any irregularity in the promotion of civil servants stood condoned and they would be deemed to have been regularised from the date of their initial promotion.
Per Ch. Hasan Nawaz, Member, (Contra)‑‑‑
Per Syed Ally Madad Shah, Chairman, S.M. Ishaq, Member agreeing‑‑‑
(b) Civil service‑
‑‑‑‑ Appointment simpliciter and regularisation in service‑‑‑Difference.
There is difference between appointment simpliciter and regularisation in service. `Regularisation' implies consideration for continuity in service and unless expressly provided otherwise, the regularisation is reckonable from the date of appointment/promotion. Where no date was specified for the regularisation of service regularisation of civil servants promotions were supposed to have been effective after they had put in at least five years service.
Per Syed Ally Madad Shah, Chairman, S.M. Ishaq, Member, agreeing; Ch. Hasan Nawaz, Member (Contra)--
Service Tribunals Act (LXXI of 1973)‑‑‑
----S.4‑‑‑Appeal‑‑‑Limitation‑‑‑Maintainability‑‑‑Tentative seniority list circulated on 28‑11‑1988‑‑‑Civil servants objecting to such list in December 1988‑‑‑Civil servants' representation was not entertained on the ground that they having failed to file any objection against the final seniority list dated 7‑8‑1985, their claim had become time‑barred‑‑‑Civil servants then preferred departmental representations/appeals in January, 1990 and filed appeals within thirty days after expiry of statutory period for 90 days to await decision on those appeals‑‑‑Provisional seniority list issued in 1988, re‑opened the case for contesting seniority position reflected in that list‑‑‑Although no appeal was competent against provisional seniority list but civil servants having made representations in pursuance of the objections invited against such list, on rejection of such representation, they did have the cause for filing appeals; case could be re‑examined in the li& of developments which took place after publication of seniority list in 1985 and civil servants' claim did not stand neutralized by acquiescence‑‑‑Appeals, therefore, did not suffer either from limitation or for non‑maintainability.
Per Ch. Hasan Nawaz, Member (Contra)‑‑‑
Per Ch. Hasan Nawaz, Member (Minority view)...
(d) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑S.9(1)‑‑‑Government's Memorandums dated 20‑11‑1973 and dated 5‑12‑1983‑‑‑Vires of Memorandums on the touchstone of S.9, Civil Servants Act, 1973‑‑‑Civil service‑‑‑Regularisation‑‑‑Post required to be filled by initial recruitment had to go to the direct appointees‑‑Civil servants' promotion in excess of departmental quota was bound to remain ad hoc in nature and they could not be regularised on the strength of administrative instructions in violation of the statutory provisions ‑‑‑Government s Office Memo. Dated 20‑11‑1973 and Memo dated 5‑12‑1983, were ultra vires of S.9(1),, Civil Servants Act, 1973, therefore, ab initio void and of no legal effect.
(e) Civil Servants Act (LXXI of 1973)‑--
‑‑‑‑S. 8(4)‑‑‑Civil servant‑‑‑Seniority‑‑‑Seniority in a post, service or cadre to which a civil servant had been promoted would take effect from the date of regular appointment to that post.
Per Syed Ally Madad Shah, Chairman, S.M. Ishaq, Member, agreeing; Ch. Hasan Nawaz, Member (Contra)‑‑‑
(f) Service Tribunals Act (LXXI of 1973)‑‑
‑‑‑‑S. 3‑A(2)(a)‑‑‑Civil servants' appeals claiming seniority over respondents (civil servants) were allowed and orders of rejection of their representation were set aside‑‑‑Representation of civil servants was directed to be considered on merits as per direction of majority view.
Raja Muhammad Asghar Khan for Appellants.
Sardar Muhammad Amir Akbar Khan, Standing Counsel for the Government.
Shah Abdur Rashid for Contesting Respondents.
Dates of hearing: 3rd, 7th and 8th September, 1992.
JUDGMENT
CH. HASAN NAWAZ (MEMBER): ‑‑This judgment is concerned with the disposal of seventeen appeals under section 4 of the Service Tribunals Act, 1973, taken together because of having given rise to identical questions of law and facts for determination.
2. The appellants were appointed as Lower Division Clerks on different dates during the period from 3‑11‑1966 to 12‑12‑1967. They claim to have been promoted as Upper Division Clerks on different dates during the period from 9‑2‑1970 to 23‑9‑1972. The respondents' pleadings indicate that, at least in some of the cases, promotion as Upper Division Clerks was only on temporary and ad hoc basis and that it was regularized much later on different dates in the case of different appellants. Anyway, the detail of this aspect of the matter need not be gone into, because except for Bhai Khan respondent No.21 and Muhammad Iqbal Khan respondent No.23, it does not have any bearing on the determination of the real questions in controversy between the parties.
3. They are now serving as Assistants in the Planning and Development Division, Government of Pakistan. The claim. which in fact is relevant with reference to the points, in dispute is regarding the nature and dates of their promotion as Assistants. It is that they were promoted as Assistants on the recommendations of the Departmental Promotion Committees on various dates from 30‑10‑1968 to 31‑5‑1975.
4. During the course of arguments,, their learned counsel put them into different categories with reference to their dates of appointments or promotion as Assistants. Because of its importance this aspect deserves a detailed address. The first category is of the following appellants:‑
S. No.
Appellants
Appeals Nos.
Date-of-appointment as Assistant
1
Mr. Abdul Rashid
167(R)/90
2‑12‑1972
2
Mr. Ghulam Shabbir
157 /90
21-2-1972
3
Mr. Safdar Hussain
158(R)/90
18‑10‑1969
4
Mr. Matloob Hussain Shah
159(R)/90
18‑10‑1972
5
Mr. Abdul Majeed
163(R)/90
21‑2‑1973
6
Mr. Muhammad Siddique‑III
168(R)/90
23‑9‑1972
7
Mr. Ghulam Sarwar
167()R/90
2-12-1972
8
Mr. Abdul Jabbar Tahir
170(R)/90
7‑7‑1969
9
Mr. Sher Zaman
171(R)/90
23‑9‑1972
10
Mr. Abdul Khalid
178(R)/90
9‑2‑1970
11
Mr. F.M. Arshad
183(R)/90
30-10-1968
5. These appellants are alleged to have been promoted in the light of the Establishment Division's instructions issued through Office Memoranda No.F.8/1/62‑F.11, dated 24‑11‑1967, No. F.8/1/62‑F.II, gated 22‑1‑1968 and No.18/1/68‑F.II, dated 20‑5‑1969. it is apparently discernible that these appointments or promotions, whatsoever be their nature, were made before the enforcement of the Civil Seri ‑rots Art, 1973. and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
6. The second category is of the following appellants:‑
S. No.
Appellants
Appeals Nos.Date of
Appointment as Assistant
1.
Mr. Muhammad Moinuddin
160(R)/90
2‑3‑1974
2.
Mr. Mushtaq Ahmad Siddoo
161(R)/90
31‑5‑1975
3:
Mr. Najamuddin
162(R)/90
2‑3‑1974 4.
4.
Mr. Shaukat Nawaz
166(R)/90
26‑4‑1975 5.
5.
Mr. Muhammad Nawaz
173(R)/90
3‑2‑19746.
6.
Mr. Zafar Jalil
184(R)/90
2‑3‑1974
Evidently, the distinction was made on account of the fact that they promoted after the promulgation of the aforementioned Act and the rules of 1973.
7. It may be mentioned at this stage, as a relevant fact that about the first category the argument of the appellants' learned regularised by virtue of the Establishment division instructions imparted through O.M. No. 1/8/73‑ARC, dated 2011‑1973. The contention; regarding the second category is that their appointments stand regularised by virtue of the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
8. The appellants appear to have made an attempt to cause an impression as if they were promoted as Assistants on regular basis on the recommendations of the concerned Departmental Promotion Committee. Only Para. XIV of the grounds of appeal betrays the correct factual position which is that they all were promoted on ad hoc basis against vacancies fallen in the quota of direct recruits. It was laid down in the order of promotion that they are purely temporary in nature and the officials are liable to reversion without notice to their original appointments either on the termination of the vacancy or on unsatisfactory performance reports. It was also laid down that these appointments are subject to replacement by the nominees of the Federal Public Service Commission or surplus eligible staff and that the promotees will not be entitled to permanent retention in the posts of Assistants.
9. Respondents Nos. 2 to 20 and 22 were appointed on regular posts against direct quota vacancies on different dates during the period from 1975 to 1987. Bhai Khan, respondent No. 21, and Muhammad lqbal Khan, respondent No. 23, were promoted as Assistants on temporary basis respectively on 15‑11‑1984 and 5‑8‑1985. Their appointments as such were regularised with effect from 13‑7‑1987 and 6‑6‑1988 on the ground that they had been regularised as Upper Division Clerks on 19‑3‑1975 and 1‑7‑1976 respectively prior to the regularisation of the appellants as Upper Division Clerks.
10. The appellants' case is that they were shown senior to the respondents Nos. 2 to 6 in the seniority lists issued in 1976 and 1979. The names of respondents Nos. 7 to 23 were
not given in those lists because they had not been appointed by the time of their circulation. It is alleged that, for the first time after the issuance of aforementioned lists, a tentative seniority list was issued on 28‑11‑1988 where the appellants were shown junior to respondents Nos. 2 to 23. Objections were filed by them against this Seniority List but they were rejected by the competent Authority on the ground of being time‑barred, which was based on the plea that they had failed to challenge the earlier final Seniority List .of 7‑8‑1985. After their objections against the said list had been turned down, they filed departmental appeals, either on one or two occasions, to the Secretary, Planning and Development Division. The dates of these representations, departmental appeals and their rejection by the competent Authority are not material from any point of view. What in fact is relevant is that in these representations and appeals, the claim was that their seniority had been wrongly fixed, on the plea that they had been promoted as Assistants earlier than tile contesting respondents and that they should have been shown senior to them.
11. The rejection of their departmental appeals ultimately brought them to the Tribunal with the present appeals under section 4 of the Service Tribunals Act, 1973, where the prayer is that "the impugned seniority list and the letters of rejection of objections may be set aside and the appellants be declared senior to respondents Nos. 2 to 23 with all consequential benefits".
12. The defence on merits is that the appellants' promotion was purely on temporary/ad hoc and replacement basis with no right of seniority, confirmation and retention as Assistants. It was clearly mentioned in the promotion order that it would not give any right of seniority to them. Since the contesting respondents had been appointed against 50% direct quota vacancies on regular basis, they were rightly shown as senior to the appellants in the impugned seniority list of 1988.
13. As for the seniority lists of 1976 and 1979 it was pleaded that they were only provisional in character and subject to modification. They were accordingly revised and brought uptodate in accordance with the rules and the relevant instructions. Objections regarding limitation, maintainability and competency of the appeals have also been taken in defence.
14. Separate written statements have been filed by some of the contesting respondents. They have pleaded that at the time of the appellants' promotion as Assistants, no post of promotion quota was available. Being in excess of quota, it did not confer any right of seniority on the appellants. The respondents were senior to them on account of having been appointed by initial recruitment against the vacancies of direct quota. Since their appointments were regular, they were rightly shown senior to the appellants in the impugned seniority lists.
15. We have noticed in the statement of facts that the appellants' learned counsel divided them into two distinct categories with reference to the dates of their appointments. We will deal with the significance of this categorisation at a later stage in the light of the learned counsel's contentions. This apart, he put them in two other groups. In the one he placed Messrs Abdul Jabbar Tahir. Abdul Khaliq and S.M. Arshad respectively of Appeals Nos. 170(R) of 1990, 178(R) of 1990 and 183(R) of 1990. They were promoted as Assistants on ad hoc basis respectively on 17‑7‑1969, 9‑2‑1970 and 30‑10‑1968. The differentiating factor was that they were so promoted before the period from 1‑1‑1972 to 5‑7‑1977. About these appellants, his contention was that they stand regularised as Assistants on i6 'strength of the Establishment Division's instructions imparted through O.M. dated 20‑11‑1973.
16. The other group is of the remaining appellants who were promoted as Assistants, again on ad hoc basis, during the period from 1‑1‑1972 to 5‑7‑1977. About this category the argument of the appellants' learned counsel was that they stand regularised as Assistants on account of the Government's decision to exempt the employees of Grade‑1 to Grade‑15 from the purview of section 12‑A of the Civil Servants Act, 1973. A detailed application to the appellants' pleadings regarding this aspect of the matter is unnecessry and it will be sufficient to say that the aforementioned contention has been relied upon as mainstay in support of their case. The thrust of the arguments of their learned counsel was that since the officials in BPS‑1 to BPS‑15 were exempted by a subsequent decision of the Federal Government from the operation of section 12‑A of the Civil Servants Act, 1973, their promotions as Assistants stand regularised with effect from the dates they were so promoted.
17. In support of this argument, reliance has been placed on a Full Bench ruling of this Tribunal in the case of Muhammad Zakaria Khan v. Secretary, Establishment Division and 23 others cited at the Bar as 1990 PLC (C.S.) 45. In the appellants' own words, the ratio decidendi of Zakaria Khan's case is fully applicable to the present appeals and the appellants would thus be "deemed to have been regularised from the dates of their original appointments by promotion and no separate order was necessary to be passed". It is further pleaded that the Tribunal's judgment in Muhammad Zakaria Khan's case, having gone without challenge, has attained finality and that the Establishment Division, the main respondent in that appeal, had not only accepted the Tribunal's verdict but had also implemented it.
18. In Muhammad Zakaria Khan's case the appellant was appointed as an Assistant on 14‑9‑1976 in the Ministry of Agrarian Management against a post advertised in the press. The appointment, though not ad hoc, was temporary. On the abolition of this Ministry in the year 1977, he was absorbed in the same capacity in the Establishment Division which he joined on 1‑1‑1978 without any break in service. Earlier, during the period from 1969 to 1973, respondents Nos. 2 to 16 of that case had been directly appointed as Assistants in the Establishment Division, whereas respondents Nos. 17 to 24 were promoted as such against direct quota vacancies pending recruitment by the Federal Public Service Commission. Subsequently, however, the cases of respondents Nos. 2 to 16 were considered by the Departmental Promotion Committee concerned in the light of the instructions imparted by the Establishment Division in their O.M. dated 20‑11‑1973 and their appointments as Assistants were regularised by order dated 5‑2‑1985 "in terms of the Establishment Division's O.M. No. 4/4/81‑R‑6, dated 5‑12‑1983". No order for regularisation was passed in respect of respondents Nos. 17 to 24 who had been promoted on ad hoc basis against direct quota basis on the plea that no formal order of regularisation was necessary in their case because the irregularity or infirmity, whatever it was, involved in their appointments stood condoned on account of the Government's decision to exempt the cases of BIOS‑1 to BPS‑15 employees from the purview of section 12‑A of the Civil Servants Act, 1973. It was maintained that, in consequence of this exemption, their appointments stood regularised with effect from the date they were originally promoted on ad hoc basis.
19. It may be mentioned that the Tribunal, after due consideration, gave seniority to the appellant with effect from 14‑9‑1976 which was the date of his initial appointment as Assistant in the Ministry of Agrarin Management. About respondents Nos. 2 to 16 the question was whether after the passage of order of regularisation dated 5‑2‑1985, they should be treated to have been regularly appointed as Assistants with effect from the dates of their original appointments. It was decided on interpretation of the provisions of, the Establishment Division's Office Memoranda dated 20‑11‑1973, 5‑12‑1983 and 27‑12‑1983 that the effect of order dated 5‑2‑1985 was that they will be deemed to have been regularised with effect from the dates of their original appointment and that the appellant's claim of seniority over them was not tenable.
20. While dealing with the case of respondents Nos. 17 to 24 the Tribunal observed that they had admittedly been temporarily promoted against direct quota basis during the period from 1972 to 5‑7‑1977 and that their appointments were required to be regularised. It was held as follows:‑‑
" ... These irregular appointments fell under the purview of section 12‑A of the Civil Servants Act, 1973, and their cases were to be reviewed. But later, officials in Grade‑1 to Grade‑15 were exempted from the purview of the said section. Following that exemption, the respondent‑Establishment Division rightly took the view that the appointments which suffered from one or the other irregularity stood regularised. This decision covered the cases of the respondents named above and, therefore, in our view, no separate order had necessarily to be passed in their cases. Thus, the respondents Nos. 17 to 24 will be deemed to have been regularised from the dates of their original respective appointments and they will take their seniority with reference to those dates."
21. So, the argument on the basis of the Tribunal's decision in Muhammad Zakaria Khan's case is that the appellants' ad hoc appointments as Assistants against direct quota vacancies stood regularised, before the appointments or promotions of respondents Nos. 2 to 23, on the strength of the Government's decision to exempt the cases of employees of Grade‑1 to Grade 15 from the purview of section 12‑A of the Civil Servants Act; that this regularisation will be deemed to have become effective from the date of original promotions on ad hoc basis and that no separate order was required to be passed to produce that result.
22. For appreciation of what was granted by this exemption to the employees of Grade‑1 to Grade‑15, it is necessary to know what had been taken away by section 12‑A of the Civil Servants Act, 1973, obviously because its advantage has to be commensurate with the disability or disadvantage caused by the insertion of this section in 1980. It makes the following reading:
"12‑A. Certain Persons to be liable to removal etc.‑‑Notwithstanding anything contained in this Act or in the terms and conditions of a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977, the President or a person authorised by him in this behalf may‑‑
(a) without notice, remove such a civil servant from service or revert him to his lower post as the case may be, on such date as the President or, as the case may be, the person so authorised may, in the public interest, direct; or
(b) in a case where the appointment or promotion of such a civil servant is found by the President or, as the case may be, the person so authorised to suffer from a deficiency in the minimum, length of service prescribed for promotion or appointment to the higher grade, direct, without notice, that seniority in such case shall count from the date the civil servant completes the minimum length of service in such appointment or promotion, as the case may be."
The purpose was to examine the cases of those civil servant who had been appointed or promoted for the period from 1‑1‑1972 to 5‑7‑1977, with a view to find out if those appointments or promotions were the result of favourtism for considerations of political nature. It empowered the President or person authorised by him to remove a civil servant from service or revert him to a lower post, in the public interest, whose appointment or promotion had been motivated by such considerations and was thus irregular and unjustified. It provides that in case the appointment or promotion of such a civil servant was found to have suffered from a deficiency in the minimum length of service prescribed for promotion or appointment to the higher grade, the competent Authority may direct, without notice, that seniority in such case shall count from the date he completes the minimum length of service in each appointment or promotion.
23. Therefore, the only advantage of this exemption was that the employees of Grades 1 to 15 were saved from the consequences of liability caused by this section. Its operation extended only to the scope of section's mischief and by no means did it take away the basic irregularity or infirmity inherent in the appellants' ad hoc and contingent promotions as Assistants. They were promoted as such against posts meant for direct recruits and it was on account of this reason that this was specifically laid down to serve only as ad hoc promotion. It was provided in the order of promotion that it was purely temporary in nature and that the appellants will be liable to reversion to their original posts on availability of recommendees of the Federal Public Service Commission. The exemption enured for the benefit of only those employees who had been appointed or promoted during the aforementioned period for ulterior considerations by nepotism and it served as a blanket cover to save them from demotion or removal from service, regardless of the motive behind their promotions and appointments. Howsoever, the strain on the import of this exemption in so far as the appellants as the appellants are concerned, its effect at the most was that section 12‑A will be deemed to have never been placed on the Statute. In the situation…
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