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Petitioner: MANZOOR AHMAD VS Respondent: PAKISTAN
1991 P L C (C
1991 P L C (C.S.) 39
[Federal Service Tribunal]
Before Khawaja Abdul Jalil and Ch. Hasan Nawaz Members
MANZOOR AHMAD and others
Versus
PAKISTAN through Secretary, Ministry of Communications and 3 others
Appeals Nos. 152(L), 154(L) to 158(L) and 160(L) to 162(L) of 1986, decided on 23rd April, 1990.
(a) Service Tribunals Act (LXX of 1973)----
----S. 4---Civil Servants Act (LXXI of 1973), S. 8---Seniority---Provisional Seniority List, does not amount to a final order as would justify an appeal under S.4(1) of Service Tribunals Act---Provisional seniority list would not provide a civil servant with a cause of action and it was not within his rights to challenge its validity.
PLD1981 S C 612 rel.
(b) Locus poenitentiae----
----Power to rescind or withdraw.
(c) Maxim----
---`Animis revertendi'---Meaning---Intention of returning.
(d) Civil Servants Act (LXXI of 1973)----
---S. 8---Service Tribunals Act (LXX of 1973), S. 4---Seniority---Appellants, Telephone Operators, protesting against tentative seniority list in which they were allegedly not shown in accordance with dates of their original appointment before they had qualified in training course---Nothing existing on record to substantiate appellants' case of seniority---Order of their initial recruitments in the department had not been produced by them to determine nature of their appointment---Department placed certain documents on record which bore out that appellants' services were terminated on deputation for training course and that they were regularly appointed in the cadre only after having qualified the course---Said documents showed that their original appointment/recruitment was only provisional and that their seniority was to be reckoned with effect from date of their appointment after passing training course---Appellants were unable to produce either any document or rule which could have supported their assertion that seniority of Telephone Operators was to be determined on basis of their dates of initial recruitments in department---Held, seniority of appellant Telephone Operators was to be determined in view of dates of their regular appointment after clearance of training course as decided by the department.
(e) Civil Servants Act (LXXI of 1973)----
---S. 8---Seniority---Order of withdrawal of seniority list---Locus poenitentiae, limitation on---Limitation on locus poenitentiae or power to rescind or recall namely that it could be exercised only before that order had taken legal effect, is applicable only to those cases where that order was lawful and had been passed by competent authority---Principle would not be applicable to those cases where order was incompetent or otherwise illegal, simply because no law was meant to perpetuate an illegality---Wrong done to affected persons could not be made to exist for all times to come under any principle of law---Where order passed was basically incorrect, no legal effect could be deemed to have been given to a wrong order, irrespective of whether it had been acted upon.
Ch. Mushtaq Masood for Appellant.
Hafiz Tariq Naeem, A: G. with Laeeq Ali, A.D., and M. Latif Azad, D.R. for Respondents. ?????
Date of hearing: 27th February, 1990.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).--We are concerned, in this judgment, with the disposal of nine appeals under section 4 of the Service Tribunals Act, 1973, giving rise to identical questions of law and facts.
2. The appellants in all the nine appeals namely Manzoor Ahmad, Ilyas Akhtar, Ikramuddin, Muhammad Ramzan, Bashir Ahmad, Rafiq Insari, Muhammad Rafique, Abdul Sattar and Naeem Athar were recruited as Telephone Operators on 25-11-1960, 8-4-1961, 1-6-1960, 24-5-1961, 27-8-1960, 12-9-1961, 2-5-1961 and 1-6-1960 respectively. They were all deputed on different dates for training in T.O-1 Course for three months' duration. In each case, the order of deputation said that their services are terminated and they were entitled to draw stipend per month at different rates during the period of training. After the conclusion of training course they were appointed as Telephone Operators on regular basis against existing vacancies in different divisions.
3. Through covering letter dated 21-9-1982 (Annexure A/9), tentative seniority list of Telephone Operators was issued by the department. The letter said that the list was based on substantive appointments as Telephone Operator and that it has been prepared in accordance with the directions issued by the Director General, Telegraph and Telephone through letter No. Staff (1) 13-10-74 dated 15-8-1975. With the exception of Ikramuddin of Appeal No.155(L)/86, the appellants were mentioned in the aforementioned order, against serial numbers 400, 401, 406, 398, 474, 413, 411 and 472 of the list.
4.Then, through covering letter dated 13-5-1985, two other provisional seniority lists were circulated. List-A was of those Telephone Operators who had been appointed uptil 19-11-1962 whereas list-B was in respect of Telephone Operators appointed from 20-11-1962 to 5-2-1964. The list attached by the appellants with this letter is incomplete and it is not clear in which of the two categories it falls. Anyway, the appellant's names have been mentioned in the same order against serial numbers 275, 276, 273, 278, 274, 299, 284, 282, and 298 of the list. Like in the case of previous list, objections, if any, were invited from all concerned against the list. It may be mentioned that in accordance with the appellants' case. Their names were shown in these lists in accordance with the dates of their original appointments as Telephone Operators, before their deputation to the training course.
5. By order dated 13-7-1985 (Annexure A/11), the appellants were granted BPS-9 (Scale: 600-29-1200) after clearance by the Departmental Promotion Committee and approval of the competent authority "with immediate effect or from the dates they took over charge at their respective stations." The order said that they continued to be borne on the strength of Telephone Operators. This order was given effect by the office of Divisional Engineer Telephone (Services) Faisalabad, as is borne out by letter dated 8-8-1985 (Annexure A/12), which said that BPS-9 had been granted to them with effect from 1-1-1984. It may be pointed out as a matter of fact, that under order dated 13-7-1985, there was a note to the effect that "it was subject to revision on disclosure of facts which might have escaped notice inadvertently." Likewise, at the end of order of implementation dated 8-8-1985, there was a note saying that "these orders are subject to modification/cancellation on disclosure of facts which might have escaped notice inadvertently.
6. Subsequently, the Director General ordered the revision of aforementioned seniority list dated 17-9-1985 (Annexure A/13) on the ground that some officials had been given BPS-9 without taking into consideration the fact that there had been some break in their service on account of three months' training. This letter makes the following reading:
"PAKISTAN TELEGRAPH AND TELEPHONE DEPARTMENT OFFICE OF THE DIRECTOR GENERAL
No. Staff(I).39-7/84 Islamabad, the 17th September,1985
General Manager,???????????????????? Central Telecom: Region,????????? Lahore,
SUBJECT:????? FIXATION OF SENIORITY OF T.Os. IN CTR
Ref:???????????????? Your office No.SA/Y-534/TO/V/3 dated 21-4-1985
A meeting was held in the Conference Room of T & T DTO-General on 16-9-1985 in which General Manager C T R, Asstt. General Manager C T R, Chief Engineer (S&E), Director (Establishment), Asstt. Dy. Director-General (S-1) and Accounts Officer (PA&P) participated. The matter was thoroughly examined and it has been observed that while fixing seniority of Telephone Operators in C T R vide the letter cited above, the region had overlooked the break in service of several Telephone Operators when they were sent for T.O-I training as a result of which the seniority of Telephone Operators has not been correctly fixed. Therefore, it was decided that the region may revise both their lists A & B taking into consideration the break in service of Telephone Operators during their training period. This would mean that the date of appointment of the Telephone Operators shown in column 8 of the Seniority list would be the date of their continuous and regular appointment in the cadre in most of the cases and their seniority can be fixed on this basis. Region may
therefore prepare one consolidated list from both lists A & B as Part-I of the Seniority list covering all Telephone Operators regularised up to 1964 which are included in the existing lists of A & B.
Sd/-- 17-1-85
Received????????????????????????????????????????????? O/C Asstt. Dy. Director-General (S-I)"
(Sd.)--17-9-85
7. In pursuance of this letter, a revised tentative seniority list of Telephone Operators brought in service up till 1964 was put in circulation through letter dated 27-11-1985. It mentioned that this list had been prepared in accordance with dates of appointment after Telephone Operators had qualified in the training course in accordance with Director General's letter dated 17-9-1985 (Annexure A/13). Here again, objections were invited within 30 days of the circulation of the list. At the bottom we find a note to the effect that the list is liable to the change/modification on disclosure of facts which inadvertently might have escaped notice of the concerned Authority. None of the appellants figured in this list. .
8. The appellants filed appeals/representations against this list on 19-12-1985 to the General Manager (CTR) Lahore (Annexure A/15 to Annexure A/15-8). It was pleaded in these representations that the training course did not bring about any break in their service and they should have been shown in the seniority list in accordance with the dates of their original appointment before they had qualified in the course. It was prayed that the seniority list issued through letter dated 27-i1-1985 may be cancelled.
9. However, before these representations had been decided, a telegram (Annexure A/16) was issued by the General Manager, Central Communication Region, Lahore (respondent No3) on 17-2-1986 whereby the earlier order of 13-7-1985 granting BPS-9 to the appellants was cancelled. The Divisional Engineers concerned were asked to submit compliance reports after implementation of the order. The appellants again addressed departmental appeals (Annexures A/17 to A/17-9) to respondent No.3, which proved abortive and they came to the Tribunal, after expiry of the statutory period of 90 days, with the present appeals where the following two prayers were made: First, the Tribunal may "accept the appeals and strike down the impugned seniority list dated 27-11-1985 and set aside order/telegram dated 17-2-1986." The second was that "the seniority list dated 27-11-1985 prepared by the respondents ignoring the continuous dates of appointment of the appellants in service be set aside and directions may graciously be issued to the respondents to include the names of the appellants in the seniority list of Telephone Operators in BPS-9 on the basis of continuous service without considering any break because of intervening training".
10. In support of the reliefs sought by the appellants, their case is that the period of deputation did not bring about any break in their service and that their names had rightly been mentioned in the earlier seniority lists prior to 27-11-1985 on the basis of their continuous service from the dates of original appointments. Another ground in support is that order dated 13-7-1985 granting BPS-9 to them with effect from 1-1-1984, had been implemented and acted upon and that it could not be cancelled or withdrawn on the principle of locus poenitentiae. It was pleaded that arrears of pay had also been paid to them with effect from 1-1-1984 in accordance with BPS-9 and that they have ever since been drawing pay in that Scale. Since the order had taken legal effect, it could not be rescinded by the Authority and the telegram of 17-2-1986 was unlawful and of no legal effect. It is also in their pleadings that irrespective of the intervening period of training course, they were entitled to be mentioned in the seniority list of 27-11-1985 at the appropriate place in accordance with the dates of their original appointments.
11. In defence, it was pleaded that the appellants original appointments were purely on temporary basis and their services were terminated before they were deputed for three months' training course. They were appointed as Telephone Operators on regular basis after the year 1964, which explains their absence from the list. It was pleaded that since they did not agitate the matter at the time of their appointments on various dates in the year 1965-1966, the appeals are time?-barred. Higher BPS-9 was granted to them on the basis of provisional seniority list of 13-5-1985 which was subsequently cancelled and the order dated 13-7-1985 granting BPS-9 was rescinded after it had been deprived of its basis. It was further pleaded in defence that there was no legal justification for counting the appellants' employment of pre-training period. '
12. It will be worthwhile to mention that on 14-10-1986, when the appeals came up for admission before the Tribunal, it was submitted by the appellants' learned counsel that the prayer against the seniority list of 27-11-1985 may not be taken into account because necessary parties had not been impleaded. He submitted that his second prayer regarding cancellation of telegraphic order dated 17-2-1986 rescinding the earlier order of 13-7-1985 may be considered. The result is that before us, there is no appeal for cancellation of the seniority list of 27-11-1985 and all what the appellants now seek is the cancellation of order dated 17-2-1986 which purports to rescind the competent authority's earlier order of 13-7-1985 granting BPS-9 to them.
13. Therefore, before proceeding further in the matter, to make an address to the point of limitation and examine the case on merits, we are required to see whether it would be possible, without offence against any law, to grant the requisite relief without disturbing or in any manner revising the seniority list of 27-11-1985. There is no dispute about the fact that the earlier order of 13-7-1985 granting BPS-9 to the appellants was withdrawn by order dated 17-2-1986, only because the appellants' names did not figure in the seniority list of 27-11-1985, which had been prepared, as already noticed from letters dated 17-9-1985 and 27-11-1985, on the basis of dates of appointment after the training course had been passed. The seniority list of 27-11-1985 was prepared in compliance with the decision conveyed by the Director-General through letter dated 17-9-1985 which was the result of thorough examination by all concerned. It was observed that while fixing seniority of Telephone Operators, the Region had overlooked the break in the service of several Telephone Operators when they were sent for the training course. The competent authority came to the conclusion that the seniority of Telephone Operators had not been correctly fixed. It was, therefore, decided that the Region concerned may revise the list after taking it into consideration the break in service of Operators caused on account of the training course. It was laid down that the dates of appointment shown in column No. 8 of the seniority list would be the dates of their continuous and regular appointment in the cadre in most of the cases and their seniority would be fixed on that basis. The letter gave a direction to the effect that a consolidated list covering all the Telephone Operators regularised upto 1964 may be circulated. Since the appellants had not passed the course till the year 1964, their names were not mentioned in that list, irrespective of the fact that they had been mentioned in the previous provisional lists on the basis of the dates of their initial appointments.
14. It is thus clear, and there appears to be no dispute between the parties on this point, that basis for the grant of BPS-9 was provided by the tentative seniority list circulated in the first instance through letter dated 21-9-1982 (Annexure A/9) and then through letter dated 13-5-1985 (Annexure A/10) where the names of the appellants had been mentioned, in accordance with the dates of their initial appointment, in column No. 6 of the list, even though they had cleared the training course in the years 1965 and 1966. For the sake of emphasis, in view of the importance of the point, we can afford to repeat that both the orders, first passed on 13-7-1985 granting BPS-9 to the appellants and the second on 17-2-1986 rescinding the first, were the result of seniority lists circulated on 13-5-1985 and then on 27-i1-1985. In other words, order dated 13-7-1985 is linked with the seniority list dated 13-5-1985 whereas subsequent one of 17-2-1986 is the result of seniority list of 27-11-1985. What necessarily follows is that the maintenance of order dated 13-7-1985 would amount to the maintenance and preservation of seniority list of 13-5-1985, whereas upholding of impugned order dated 17-2-1986 would involve the sustenance of subsequent seniority list of 27-11-1985. Therefore, under the circumstances, the impugned order of 17-2-1986 cannot possibly be struck down without cancellation of the seniority list of 27?11-1985, which the appellants do not want us to do and rightly so because the persons to be affected have not been impleaded as parties. Since the impugned order is wedded with the seniority list of 27-11-1985, the withdrawal of prayer regarding that list, amounts to automatic withdrawal of other relief regarding setting aside the impugned order of 17-2-1986. We have no doubt that under the aforementioned circumstances, relief sought by the appellants cannot possibly be granted without disturbing the seniority list, of 27-11-1985, which cannot be done merely because the persons going to be affected are not before us. We find it difficult to comprehend how the appellants' learned counsel wants us to grant the requisite relief while conceding that the seniority list of 27-11-1985 cannot be disturbed in the absence of necessary parties. We cannot legally afford to uphold the order of 13-7-1985 without reviving the tentative seniority list of 13-5-1985, which merits apart, according to the department's case, proceeded on wrong view of the matter and involved an offence against those Operators who had cleared the training course at any time uptil the year 1964.
15. Before coming to any definite conclusion on this point, we might as well take notice of another aspect of the matter. It becomes available from the fact that, like the previous one, the seniority list of 27-11-1985 was also tentative. On the basis of Supreme Court authority in S.H.M. Rizvi's case P L D 1981 S C 612 where it was held that a provisional seniority list does not amount to a final order as would justify an appeal under section 4(1) of the Act, it may be pointed out that the provisional seniority list did not provide the appellants with a cause of action and that they were not within their rights to challenge its validity in accordance with Supreme Court's ruling and that they had no alternative but to ask the Court, as they have done at the admission stage, that they are not seeking any relief in respect of the seniority list of 27-11-1985 and that all they ask for is the cancellation of order dated 17-2-1986.
16. It may be so, but then they should not have assailed the validity of this list in their appeals. Their pleadings show that the entire structure of their case is based on the seniority lists of 13-5-1985 and 27-11-1985, and it could not have been otherwise, because, as already pointed out, the relief regarding cancellation of order dated 17-2-1986 cannot possibly be granted unless the seniority list of 27-11-1985 is struck down. The appellants had no alternative but to rely upon the seniority list of 13-5-1985 in support of their case for the grant of BPS-9 and the prayer that the subsequent order regarding withdrawal of this grant may be set aside; which means that they had no choice but to assail the seniority list of 27-11-1985. If this be so, they could have done it only by impleading those who are going to be affected by the cancellation of order dated 17-2-1986; on whose behalf it can be argued that if the grant of relief sought by the appellants is bound, as it is, to involve the modification and cancellation of seniority list dated 27-11-1985, they have got the right to be heard before it is done.
17. There is yet another aspect of the matter. As already noticed, the appellants' counsel did not press the appeals against the seniority list of 27-11-1985 at the time of admission and he asked the Tribunal to consider only the relief sought in respect of telegraphic order dated 17-2-1986. During the course of arguments, he took pains to convince that he could legally adopt this course and that we can grant the requisite relief without adverting to the seniority list of 27-11-1985. For the reasons already mentioned, we feel that the learned counsel's contention is not tenable. However, it may then be advocated that since the impugned order of 17-2-1986 proceeds only on the basis of a provisional seniority list, it may be struck down for that reason alone and the respondents be directed to finalise the seniority list before depriving the appellants of the benefits of BPS-9 already granted to them. If this be the line of thinking, how can it be possible to escape from the fact that earlier order dated 13-7-1985 granting BPS-9 to the appellants is also based on a provisional seniority list of 13-5-1985. Therefore, if the impugned order of 17-2-1986 be held to be of no legal authority on the ground that it is based only on a provisional seniority list, the earlier order of 13-7-1985, would also be illegal by the same token, exactly for the reason that that too is based on a provisional seniority list. As a matter of fact, the crux of they respondents' case is that the order of 13-7-1985 could not hold the ground because it was based on a provisional seniority list which was against the factual position and in violation of the rules. Therefore, we hold that the appellants should not have come to the Tribunal with the present appeals for the reason that the seniority list of 27-11-1985 was only provisional and that no final seniority list had yet been circulated. They should have waited for the finalisation of the list to avoid premature appeals. But now if they have chosen to have recourse to the Tribunal, without waiting for the finalisation of the list, praying for the cancellation of order dated 17-2-1986, necessarily involving disturbance of that list, we will have to hold that the appeals are bad for non joinder of necessary parties; simply for the reason that either the provisional seniority list should not have been made the subject of challenge, or, if it has been done, the affected parties have the right to be heard.
18. As spelled out of the grounds of appeal, the appellant's case in the main is that "the impugned order and the impugned seniority list offend the well-settle principles of locus poenitentiae and Animis Revertendi and that "the orders since having been acted upon could not be rescinded". There seems to be some misunderstanding regarding the true import of expressions "Locus poenitentiae" and "Animis revertendi". Locus poenitentiae means the power to rescind or withdraw. Animis revertendi conveys "the intention of returning". If this be so, then the impugned order has been passed in exercise of rather than offence against this principle. What, in actual fact, the appellants or their learned counsel must have wanted to say was that it was not attracted by the facts of the case and the power of withdrawal was no longer available for the reason that the impugned order had been acted upon. Be it as it is, it is further pleaded that the prayer regarding seniority list is no longer for consideration and we are left only with the impugned order of 17-2-1986 which rescinded the earlier order of 13-7-1985. About this it has been pleaded that the appellants have received arrears of pay and are continuously drawing pay in BPS-9 in implementation of the order and it could not be withdrawn on the principle of locus poenitentiae.
19. However, before dealing with the question of locus poenitentiae, it will be worthwhile to see if there is any substance in the appellants' case on merits. It has been pleaded that the seniority should be determined on the basis of their initial recruitment regardless of the period of training which, according to them, did not cause any break, in the continuity of their service and that it is incorrect to say, as the respondents do,…
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