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Petitioner: CHAIRMAN, FBR through Member Administration VS Respondent: MUHAMMAD ASFANDYAR JANJUAHonorable Justice Sajjad Ali ShahHafiz S. A. Rehman
2019 P L C (C.S.) 449 [Supreme Court of Pakistan] Present: Mushir Alam, Qazi Faez Isa and Sajjad Ali Shah, JJ CHAIRMAN, FBR through Member Administration Versus MUHAMMAD ASFANDYAR JANJUA and others Civil Appeal No. 322 of 2018, decided on 30th May, 2018.
(Against the order dated 4.11.2018 passed by the Federal Service Tribunal in Appeal No. 161(K)CS/2015)
(a) Civil Servants Act (LXXI of 1973)---
----S. 25(2)---Office Memorandum, issued under S. 25(2) of Civil Servants Act, 1973--- Such memorandum had the force of law. [p. 454] A
Azra Riffat Rana v. Secretary Minister of Housing and Works and others PLD 2008 SC 470 and Fazali Rehmani v. Chief Minister N.W.F.P. Peshawar and others PLD 2008 SC 769 ref.
(b) Civil Servants Act (LXXI of 1973)---
----Ss. 8(3) & 9---Civil Servants (Seniority) Rules, 1993, R. 2(3)(b)---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990, R. 7(1)---Seniority, determination of---Question as to whether in cases where length of service was provided for promotion, the time spent in litigation prior to the first appointment of civil servant could be counted towards such length of service---Respondent passed civil services examinations conducted by the Federal Public Service Commission in the year, 1996, however, he was treated to be domiciled of Punjab, instead of Sindh (Urban) and consequently could not be declared successful on account of high merit list of Punjab---Respondent in the year 1997 challenged such treatment by filing a Constitutional petition before the High Court of Sindh, which was allowed upon his furnishing an undertaking that he would not claim the seniority---Said order was maintained by the Supreme Court and the respondent was finally allowed to proceed for training in Sindh Civil Service Academy from where he passed the mandatory final passing out examination on 1-9-2009---After requisite training and on completion of five years mandatory service, the respondent was promoted from BS-17 to BS-18---Respondent was aggrieved when the Departmental Selection Board in its meeting did not recommend his name for promotion from BS-18 to BS-19 for want of 12 years mandatory service in BS-17 and above, which length of service according to the department, the respondent would complete in future on 26-8-2019---Contention of respondent that it was the Board's fault that he was treated as Punjab domiciled and was declined his due right to join service and was made to litigate for a period of ten years, therefore, he could not be denied the benefit of such promotion, merely for want of length of service---Held, that provision of subsection (3) of S. 8 of Civil Servants Act, 1973 if read in conjunction with R. 2(3)(b) of the Civil Servants (Seniority) Rules, 1993 left no doubt that the seniority of a civil servant on initial appointment to a service, cadre or post had to be reckoned from the date of his joining the post after being recommended by the Selection Authority and not from a date prior thereto---Even Rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 empowered the Government to determine the seniority of the probationers after Final Passing Out Examination---No section of law or rule framed thereunder was brought to the court's notice which could empower the Government in cases of initial appointment to fix the seniority of a civil servant from a date prior to his induction in civil service upon successful completion of training---Respondent on account of certain acts or omissions on the part of the Board could not maintain his seniority with officers of his Common Training Programme (CTP) with whom he had cleared CSS examination and neither he completed his necessary training with officer of his CTP nor, he could be inducted in service with them---Remedy to such act or omission at the most could be induction in service by rectifying the wrong---In the present case, no mala fide on the part of the Board has been alleged but, even in cases where such act or omission was found to be tainted with mala fide the remedy could be anything but not seniority without actual length of service---Impugned order of Federal Service Tribunal whereby respondent was given benefit of placement of his seniority with officers of Common Training Programme (CTP) with whom he had cleared CSS examination, was set aside---Appeal was allowed accordingly.
Chairman Federal Board of Revenue v. Iqbal Hussain Shaikh 2016 SCMR 773; Haroon Muhammad Khan and others v. Rukhsana Yasmeen and others 2014 SCMR 358; Ghulam Rasool and others v. Government of Balochistan and others 2002 PLC (C.S.) 47 and G.C. Gupta v. N.K. Pandev AIR 1988 SC 654 distinguished.
(c) Civil Servants Act (LXXI of 1973)---
----Ss. 8 & 9---'Seniority' and 'Promotion'---Not vested rights---Neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights. [p. 458] D
Hafiz S. A. Rehman, Senior Advocate Supreme Court for Appellant.
Respondent No.1 in person.
Date of hearing: 30th May, 2018.
JUDGMENT
SAJJAD ALI SHAH, J.---Leave was granted by this Court on 6.3.2018 to examine as to whether "in cases where length of service is provided for promotion, the time spent in litigation prior to the first appointment of civil servant could be counted towards such length of service".
2. Briefly, the respondent No.1 passed civil services examinations conducted by the Federal Public Service Commission in the year, 1996. However, he was treated to be domiciled of Punjab, instead of Sindh (Urban) and consequently could not be declared successful on account of high merit list of Punjab. The respondent in the year 1997 challenged such treatment by filing a Constitutional Petition before the High Court of Sindh, which was allowed on 29.5.2003 upon his furnishing an undertaking that he would not claim the seniority. The said order was maintained by this Court by declining leave vide order dated 15.11.2006. The respondent, on 6.1.2008, was finally allowed to proceed for training in Sindh Civil Academy from where he passed the mandatory final passing out examination on 1.9.2009. It also appears to be a matter of record that the respondent from 1996 to 2007 had remained abroad and according to his claim has undertaken various exams as well as remained on job with world's best multinational companies. It also appears to be an admitted position that after requisite training and on completion of five years mandatory service, the respondent on 6.9.2012 was promoted from BS-17 to BS-18. The respondent claimed to have been aggrieved when the Departmental Selection Board in its meeting held on 26.11.2014 did not recommend his name for promotion from BS-18 to BS-19 for want of 12 years mandatory service in BS-17 and above, which length of service according to the department, the respondent would complete on 26.8.2019. The respondent consequently approached the Federal Service Tribunal which through the impugned order directed the appellant "to give benefit of placement of the appellant with 25th Common, however, he would be treated at the bottom of the list of that batch and will also be given the necessary benefits of length of service and his pay will be fixed after allowing the notional increments all along so that keeps up with his batch mates, but the salary and allowance for that period would not be disbursed to him".
3. Hafiz S. A. Rehman, learned Sr. ASC for the appellant contends that in compliance of the judgment of this Court, the Secretary Establishment approved creation of vacancy in Income Tax Group in CE-1996 and its allocation to the respondent against Sindh (U) quota. He further submits that the respondent was issued offer of appointment on 22.2.2007 and clause-VII of such appointment letter stipulated that the seniority of the respondent in the examination group would be determined by the Government after the final passing out in accordance with Rule VII of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 and the respondent having accepted such offer submitted his joining on 27.8.2007 and proceeded on training with 35 Common Training Program (CTP) on 6.1.2008. The respondent on 1st September, 2009 was notified to have completed his training along with 35 CTP and was, however, declared to have successfully completed his probation as 25th CTP. The respondent being short of period of minimum requirement of five years mandated for promotion from BS-17 to BS-18, was given BS-18 on 'acting charge basis'. The respondent completed five years of service in BS-17 on 12.3.2012 and was thus regularized in BS-18 on 6.9.2012. Per counsel the respondent's representation against the seniority list as circulated by the Federal Board of Revenue (FBR) dated 3.8.2012, claiming inter se seniority along with 25th CTP of Inland Officers was accepted on 13.9.2012 but such notional seniority could not be a substitute to the actual length of service of 12 years required for promotion to Grade BS-19 as provided under the rules. It was further contended that the offer of appointment issued to the respondent clearly narrates that his seniority would be determined in the examination group after the final passing out in terms of Rule VII of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 which provides that seniority of the probationers shall be determined by the Government after final passing out of examinations. Additionally, per counsel, subsections (2) and (3) of section 7 of the Civil Servants Act, 1973 provides that seniority on initial appointment to service, cadre or post is to be determined, as may be prescribed, whereas, rule 2 of the Civil Servants Seniority Rules, 1993 provides that if two or more persons are recommended in open merit, their seniority inter se is determined in order of merit as assigned by the selection authority. However, in case there is only one candidate recommended as in the present case the seniority is to be counted in terms of sub-rule (3)(b) of Rule 2 ibid from the date of his joining the post after being recommended by the selection authority. It was, therefore, submitted that the seniority of the respondent is to be reckoned from the date when he actually joined the service and, therefore, he cannot be given the benefit of the time which he has spent on litigation prior to his first appointment as a civil servant. In support of his contention that seniority of a person is to be reckoned from the date of his regular appointment or absorption in the transferee group, reliance has been placed on the judgment of this Court in the case of Chairman Federal Board of Revenue v. Iqbal Hussain Shaikh (2016 SCMR 773). Counsel further in support of his contention that seniority cannot be determined without reference to continuous appointment in a particular group, referred the judgment of the Court in the case of Haroon Muhammad Khan and others v. Rukhsana Yasmeen and others (2014 SCMR 358) as well as Ghulam Rasool and others v. Government of Balochistan and others (2002 PLC (C.S.) 47) and G.C. Gupta v. N.K. Pandey (AIR 1988 Supreme Court 654).
4. On the other hand, the respondent despite his counsel being in attendance, opted to argue the matter himself and contended that it was the appellant's fault that he was treated as Punjab domiciled and was declined his due right and was made to litigate for a period of ten years, therefore, he cannot be denied the benefit of such promotion, merely for want of length of service. As to the undertaking submitted for getting into civil service, it was contended that such undertaking cannot take away the vested right of the petitioner to be treated along with his batch-mates. It was next contended that once he was granted seniority with his batch-mates by the appellant vide letter dated 12.10.2012 by accepting his representation, he cannot be denied such seniority for want of actual length of service. It was lastly contended that he is being discriminated as the appellant-Government has granted promotion in various cases without actual length of service and in that pursuit the respondent has referred to the cases of Abdul Qadir, Tariq Pirzada and Faisal Bashir Memon. He, therefore, prays that similar benefit be also extended to him. In support of his contentions, the respondent randomly referred the judgments of this Court in the cases of Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others (2011 SCMR 265), Tariq Aziz ud Din and others in re: Human Rights Cases Nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009 (2010 SCMR 1301), Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others (PLD 2008 Supreme Court 395), Abid Hussain Sherazi v. Secretary Ministry of Industries and Production, Government of Pakistan, Islamabad (2005 SCMR 1742) and Ch. Muhammad Saleem v. Government of Punjab through Chief Secretary, SGA&I Department, Lahore and 5 others (1994 SCMR 517).
5. We have heard the learned counsel for the appellant, the respondent, in person and have perused the record as well as the case law cited at bar.
6. It is not disputed before us that in terms of in O.M. No.1/9/80-R-II(A), dated 2.6.1983 issued by the Establishment Division, minimum length of 12 years of service in grade BS-17 and above is required for promotion in Grade-19, which the petitioner would acquire on 26.8.2019. Further it is by now settled law that Office Memorandum, issued under section 25(2) of Civil Servants Act, 1973 have force of law. [see Azra Riffat Rana v. Sec. Minister of Housing and Works and others (PLD 2008 Supreme Court 470), Fazali Rehmani v. Chief Minister N.W.F.P. Peshawar and others (PLD 2008 Supreme Court 769)]. The Office Memorandum No.1/9/80-R.2 dated 2.06.1983 prescribing minimum length of service for promotion in Grade-18 and above reads as follows:
GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION
No.1/9/80-R.2 Rawalpindi, the 2nd June 1983
OFFICE MEMORANDUM
Subject: MINIMUM LENGTH OF SERVICE FOR ELIGIBILITY IN PROMOTION OF OFFICERS
In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division's Office Memorandum No.1/9/80-R. II (A), dated the 12th January, 1981, the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:-
For Grade-18 5 years in grade 17 For Grade-19 12 years in grade 17 and above For Grade-20 17 years in grade 17 and above For Grade-21 22 years in grade 17 and above Proved that: -
Where initial appointment a person not being a person in government service takes placed in a post in grade 18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods:
First appointment in Reduced by Grade-18 5 years Grade-19 12 years Grade-20 17 years
Where initial appointment of a person already in government service takes place, on recommendations of the Federal Public Service Commission in a post in grade 18, 19 or 20 the length of service specified in this office memorandum shall be reduced by the periods specified in proviso (i), iii) Where first appointment of a person other than a person covered by proviso (ii) was made to government service in grade 16 or below, one-half of the service in grade 16 and one fourth in grade 15 and below may be counted as service in grade 17 for computing length of service for the purpose of promotion only.
Sd/xxx
(Mashkoor Ahmad Khan)
Joint Secretary To the Government of Pakistan
All Ministries/Divisions
7. It is also a matter of record that the respondent pursuant to the orders of the Court was finally issued the offer of appointment on 22.2.2007, Clause-VII whereof reads as under:
"Your seniority in the Examination Group will be determined by the Government after the Final Passing Out in accordance with Rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990. "
The respondent while accepting such offer letter, proceeded on training at Civil Services Academy, Lahore on 6.1.2008. After successful completion of training, his probation was terminated vide notification dated 1.9.2009 and thereafter upon completion of required length of five years of service in Grade-17 he was promoted on 6.9.2012 to Grade-18. The respondent in the meanwhile had challenged the seniority list circulated by the appellant in respect of officers of Inland Revenue Services from 22nd CTP to 30th CTP by filing a representation and claiming inter se seniority with 25th CTP of 1997. The representation of the respondent was allowed on 13.11.2012 and he was granted inter se seniority with 25th CTP of 1997 by placing his name at serial No.13. However, it is yet to be seen whether such seniority could be allowed and if yes then as to whether such notional seniority at the time of promotion could entitle the respondent to actual prescribed length of service or that such notional seniority could be a substitute for actual length of service.
8. The manner in which the seniority of a civil servant is to be determined and the way he becomes eligible to the promotion are detailed in sections 8 and 9 of the Civil Servants Act, 1973, Rule 2 of the Civil Servants (Seniority) Rules, 1993 and Rule 7 of "The Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990". The relevant portions of the said Sections and rule are reproduced for better understanding the controversy:
"The Civil Servants Act, 1973.
8. Seniority.---(1) For proper administration of a service, cadre or post the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or cadre whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.
(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post:
Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post retain their inter se seniority as in the lower post.
9. Promotion.---(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs;
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed.
(a) in the case of a selection post, on the basis of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority-cum-fitness."
"The Civil Servants (Seniority) Rules, 1993.
2. Seniority on initial appointment.
(1) ....
(2) ...
(3) If only one candidate is recommended in open advertisement by the selection authority, he shall count his seniority from-
(a) the date of recommendation by the selection authority, if he was already holding the same post on ad hoc basis; and
(b) the date of his joining the post after being recommended by the selection authority, if he was not already holding the same post."
"Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990.
7. Seniority.---(1) The seniority of the Probationers shall be determined by the Government after Final Passing Out Examination.
(highlighted to supply emphasis)
9. Perusal of subsection (3) of section 8 of the Act, 1993 reflects that the seniority of a civil servant on initial appointment to a service, cadre or post is to be determined as may be prescribed. Whereas, rule 2 of the Seniority Rules, 1993 framed under the Act of 1973 prescribes the reckoning of seniority in case of initial appointment from the date of joining the post. The provision of subsection (3) of section 8 of Act, 1973 if read in conjunction with rule 2(3)(b) of the Seniority Rules, 1993 leaves no doubt in our minds that the seniority of a civil servant on initial appointment to a service, cadre or post has to be reckoned from the date of his joining the post after being recommended by the Selection Authority and not from a date prior thereto. Even Rule 7 of the Seniority Rules, 1990 empowers the Government to determine the seniority of the probationers after Final Passing Out Examination. Neither any Section of law or rule framed thereunder was brought to our notice which could empower the Government in cases of initial appointment to fix the seniority of a civil servant from a date prior to his induction in civil service upon successful completion of training. It is to be kept in mind that seniority of a civil servant is always determined keeping in view his regular appointment to a post and, thereafter the continuous service in that particular grade.
10. In the instant case the respondent, consequent to the offer of appointment letter dated 22.2.2007 joined the Civil Services Academy Lahore on 6.1.2008 and successfully completed training on 1.9.2009 with 35th CTP. However, he has been given seniority by treating him one of the 25th CTP. It is also important to note that neither seniority nor promotion are the vested rights of a civil servant, therefore, neither any seniority nor any promotion could be claimed or granted without actual length of service on account of vested rights. The purpose of prescribing a particular length of service for becoming entitled to be considered for promotion to a higher grade, of course, is not without logic as the officer who is initially inducted to a particular post needs to actually serve on the said post in order to gain experience to hold the next higher post and to serve the public in a befitting manner. It is also important to note that grant of seniority to a civil servant without actual length of service virtually violates the entire service structure as a civil servant inducted in Grade-17 by claiming such benefit without any experience be directly posted in any higher grade, which is neither the intention of the law nor of the equity. In this context it is pertinent to record that earlier the respondent's request to waive off the minimum length of service of five years for promotion to BS-18 was declined on 1.3.2010. However, the competent authority on 12.3.2012 while exercising powers conferred under Rule 8-B of the Civil Servant (Appointment, Promotion and Transfer) Rules, 1973 promoted the respondent to BS-18 on "acting charge basis" as he was otherwise eligible for promotion but, was short of minimum required length of service and later, on completion of five years of mandatory service he was regularized in BS-18 on 6.9.2009.
11. We are mindful of the fact that the respondent on account of certain acts or omissions on the part of the appellant could not maintain his seniority with officers of 25th CTP with whom he had cleared CSS examination as neither he could complete his necessary training with officers of 25th CTP nor, he could be inducted in service with them. However, the remedy to such act or omission at the most could be induction in service by rectifying the wrong. In, the instant case no mala fide on the part of the appellant has been alleged but, in our opinion, even in cases where such act or omission is found mala fide the remedy could be anything but not seniority without actual length of service.
12. It appears to be a case of first impression, as none of the reported judgments referred to by the parties apply or relevant to the controversy involved in matter in hand, though principles of seniority are dealt with in cited cases. The case of Chairman, Federal Board of Revenue (Supra) while dealing with the seniority of deputationist held that the seniority of a person on deputation was to be reckoned from the date of his regular appointment-permanent absorption in the transferee group or department and not from the date of his posting or, transfer or any earlier date. Likewise, in the case of Haroon Muhammad Khan (Supra), this Court held as under:
"(18) Promotion and seniority are definitely not vested rights. Sections 8 and 9 of the Civil Servants Act, 1973 read together with section 4(1) proviso (b) of the Service Tribunals Act, 1973 are very clear on that. However, to be considered for promotion and seniority is…
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