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Petitioner: SHER WALI KHAN, ASSISTANT DIRECTOR, HEALTH SERVICE, NORTHERN AREAS, GILGIT VS Respondent: M. HASSAN KHAN AMACHA
1998 P L C (C
1998 P L C (C. S.) 736
[Supreme Court of Pakistan]
Present: Nasir Aslam Zahid, Munawar Ahmad Mirza and Abdur Rehman Khan, JJ
Dr. SHER WALI KHAN, ASSISTANT DIRECTOR, HEALTH SERVICE, NORTHERN AREAS, GILGIT
versus
Dr. M. HASSAN KHAN AMACHA and 4 others
Civil Appeal No. 527 of 1997, decided on 16th March, 1998.
(On appeal from the judgment dated 6-10-1994 of the Federal Service
Tribunal passed in Appeal No. 173-R of 1994).
(a) Civil Servants Act (LXXI of 1973)-
----S. 8---Constitution of Pakistan (1973), Art. 212---Seniority---Not z vested right---Exception---Appeal to Service Tribunal ---Scope-- Notwithstanding the fact that seniority in service of a civil servant has beer specifically declared under S. 8, Civil Servants Act, 1973 as not a vested right of the civil servant, a civil servant who has been wrongfully denied his rightful seniority in service is entitled to seek redress before the Service Tribunal in a properly instituted proceedings---Contention that appeal filed before the Service Tribunal was not maintainable was repelled in circumstances.
Jamal Khan Jaffar v. Rahim Shah 1994 SCMR 759 fol.
Muhammad Iqbal Khokhar v. Government of Punjab PLD 1991 SC 35; Capt. (Retd.) Abdul Qaym v. Muhammad lqbal Khokhar PLD 1992 SC 184; Ehsanullah Memon v. Government of Sindh 1993 SCMR 982; Federation of Pakistan v. Rias Khan 1993 SCMR 609 and Major (Retd.) Muhammad Matlub Khan v. Government of Pakistan 1993 SCMR 798 ref.
(b) Civil Servants Act (LXXI of 1973)---
----Ss. 8(4) & 23---Seniority---Ad hoc employee---Seniority dates back from the date of regular appointment---Period during which an employee held a post as an ad hoc appointee can be taken into consideration for pay and pensionary benefits---Period of ad hoc service followed by regular service as regards promotion and move-over to the next grade subject to the condition that there is no break of service---Principles.
Seniority dates back from the date of regular appointment, seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to the post in that grade. The period during which an employee held a post as an ad hoc appointee can be taken into consideration for pay and pensionary benefits and as regards promotion and move-over to the next higher grade period of ad hoc service followed by regular service in the scale shall also be counted towards length of service provided for promotion or move-over in the higher scale subject to the condition that there is no break of service. While exercising plenary powers under section 23' of the Civil Servants Act (or corresponding provisions in the Provincial Civil Servants Laws) or exercising powers for relaxation of rules, the President, or the Governor or the Government, as the case may be, benefits can be conferred upon the concerned employee so as to alleviate any hardship or injustice to which the employee might have been subjected to on account of adverse situations created or strict application of the rules which could not be undone under the ordinary rules but could only be done by relaxation of some rule or rules or by exercising plenary powers under section 23 of the Civil Servants Act, but without affecting the rights of another employee. In section 23 of the Civil Servants Act, (and in corresponding provisions in the Provincial Civil Servants Acts) power has been conferred upon the President (or the Governor or Government as the case may be) to deal with the case of any civil servant as may appear to him as just and equitable and such power is not limited or abridged by any provisions of the Act or any Rules made thereunder. While dealing with the provisions relating to relaxation of any rules where a strict application would cause hardship to the concerned individual, the general principle appears to be that such power should not be exercised to the prejudice of another employee.
Muhammad Iqbal Khokhar v. Government of Punjab PLD 1991 SC 35; Capt. (Retd.) Abdul Qaym v. Muhammad lqbal Khokhar PLD 1992 SC 184; Ehsanullah Memon v. Government of Sindh 1993 SCMR 982; Federation of Pakistan v. Rias Khan 1993 SCMR 609 and Major (Retd.) Muhammad Matlub Khan v. Government of Pakistan 1993 SCMR 798 and Jamal Khan Jaffar v. Rahim Shah 1994 SCMR 759 ref.
(c) Federal Public Service Commission (Functions) Rules, 1978---
----R. 4---Civil Servants Act (LXXI of 1973), S. 23---Ad hoc employee-- Regularisation of service of ad hoc employee---Once the Federal Public Service Commission found the person fit to hold the post in Grade-17, the Competent Authority could validly pass orders regularising his service in Grade-17 and also pass consequential orders formally regularising his promotion to Grade-18, on the date when he had already been promoted to that grade---Principles.
Once the Federal Public Service Commission found the person working on ad hoc basis fit to hold the post in Garde-17, the Competent Authority could validly pass orders regularising his service in Grade-17 and also pass consequential orders formally regularizing his promotion to Grade-18 with effect from the date when he had already been promoted to that grade---Even if the said orders of the competent Authority regularizing the ad hoc service in Grade-17 with effect from 1975 were considered to have been passed under section 23 of the Civil Servants Act, 1973, in the peculiar facts and circumstances of case, specially where no objection had been raised for 14 years by any other employee of the Department and even no objection had been raised by the respondent when the combined seniority list of Grades-17 and 18 was issued in 1985 in which the appellant was shown in Grade-18 and the respondent's name was in Grade-17, coupled with the fact that this was a case of regularization of an appointment made between 1-1-1972 and 5-7-1977, prescribed in substituted rule 4 of the Federal Public Service Commission (Functions) Rules, 1978, such order of the competent Authority would be covered by the words "just and equitable" employed in section 23 of the Act. Additionally there was no allegation on record that the appellant was favoured in any way by any authority in his appointment or he managed to obtain promotion on the basis of any influence or pressure. The aforesaid facts and reasons, made this an exceptional case, and despite the fact that the same technically affected respondent the ad hoc service of the appellant having been validly regularized with effect from September, 1975, in effect seniority of respondent was not affected, he having joined service in Grade-17 much later in 1981. This was an exceptional case and the competent Authority was not debarred to regularize the ad hoc service of the appellant.
Muhammad Iqbal Khokhar v. Government of Punjab PLD 1991 SC 35; Capt. (Retd.) Abdul Qaym v. Muhammad lqbal Khokhar PLD 1992 SC 184; Ehsanullah Memon v. Government of Sindh 1993 SCMR 982; Federation of Pakistan v. Rias Khan 1993 SCMR 609 and Major (Retd.) Muhammad Matlub Khan v. Government of Pakistan 1993 SCMR 798 and Jamal Khan Jaffar v. Rahim Shah 1994 SCMR 759 ref.
K.M.A. Samdani, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Appellant.
Sh. Riazul Haq, Advocate Supreme Court for Respondent No. 1.
Maulvi Anwarul Haq, Deputy Attorney-General for Respondent No.3.
Date of hearing: 16th March, 1998.
JUDGMENT
NASIR ASLAM ZAHID, J. ---Appellant Dr. Sher Wali Khan passed his M.B.B.S. in 1972 and then rendered compulsory service in the Army from 22nd March, 1973, to November, 1975, as required under section 9(a) of the Compulsory Service in the Armed Forces Ordinance, 1971. On release from the Army, he was appointed on ad hoc basis in Grade-17 as a civil Medical Officer in the Northern Areas, Health Department, with effect from 26-9-1975 till the availability of a nominee of the Federal Public Service Commission vide office order dated 6-11-1975 of the Kashmir Affairs Division, Government of Pakistan.
By letter dated 12-4-1981 of the Director, Health Services, Directorate of Health Services for Azad Kashmir and Northern Areas, Government of Pakistan addressed to the Kashmir Affairs and Northern Affairs Division, it was informed that the appellant had since completed his five years in Grade-17 on 25-9-1980 and the performance of the officer had remained satisfactory and, therefore, it was recommended that he may be promoted to Grade-18. Thereafter, by office order dated 8-10-1981 the approval of the competent Authority was conveyed by the Establishment Division, and appellant was promoted to Grade-18 on the same post with immediate effect and until further orders.
It may be observed here that in 1981, the Health Department in computing the appellant's service recognised the service rendered by the appellant in the Army.
2. Respondent No. 1 Dr. M. Hassan Khan Amacha joined the Rural Health System Northern Areas on 8-8-1976, which was not Government service. However, on being selected by the Federal Public Service Commission and after approval by the competent Authority, he joined service of the Government of Pakistan and was appointed as Medical Officer in Grade-17 in Northern Areas Medical Department with effect from 24-1-1982.
3. The first combined seniority list of officers in Grades-17 and 18 of the Health Department of Northern Areas was issued on 2-11-1980. This was prior to the induction of respondent No. 1 in Government service. In this combined seniority list, amongst Grade-17 officers, appellant was shown at Serial No. 2 treating his date of appointment as 26-9-1975.
In October, 1985, separate seniority lists for Grades-17 and 18 officers were issued. By then appellant had already been promoted to Grade-18 yin October, 1981) and his name appeared at Serial No. 3 in the seniority list of Grade-18 officers. In the seniority list of Grade-17 officers, also issued in October, 1985, respondent No. 1 was shown at Serial No. 4.
4. Apparently, till 1989, no dispute arose about the seniority of appellant vis-a-vis respondent No. 1 or any other officer. In February, 1989, A.G.P.R pointed out that neither the appellant had been regularised by the competent Authority nor he had been replaced by a nominee of the Federal Public Service Commission. Thereafter, a summary was floated by the Ministry of Kashmir Affairs and Northern Areas for regularisation of the ad hoc appointment of the appellant. The said summary gives the background and reasons for regularisation of appellant's service and the same reads asp follows:--
"Government of Pakistan Ministry of Kashmir Affairs and Northern Areas
Subject: REGULARISATION AT AD HOC APPOINTMENT CAPT. DR. SHER WALI KHAN AS MEDICAL OFFICER (B-17) IN THE HEALTH DEPARTMENT NORTHERN AREAS
After being released from the Army Medical Corps. Capt. Dr. Sher Wali Khan was appointed as Medical Officer (BPS-17) on ad hoc basis, in the Health Department Northern Areas, with effect from 26-9-1975. He was promoted to BPS-18 with effect from 8-10-1981, with the approval of the competent Authority prior to the regularisation of his ad hoc appointment (Establishment Division's U.O. No. 35/2/81-CP.5, dated 4-10-1981 refers). After his promotion he was posted as District Health Officer, Diamer and is presently posted as Assistant Director, Health Services Northern Areas.
2. In February. 1989 the A.G.P.R. Sub-Office, Gilgit pointed out that neither the ad hoc appointment of Dr. Sher Wali Khan, as Medical Officer (BPS-17) has been regularised by the competent Authority nor he had been replaced by the F.P.S.C. nominee. Considering his 14 years' service in the Northern Areas, the Establishment Division were requested vide this Ministry's summary dated 9-7-1989 (Annex-I) to regularise his ad hoc appointment in BPS-17 for the period 26-9-1975 to 8-10-198:. The case was referred to the F.P.S.C. by that Division for advice. The Commission advised that the case needed regularisation of his ad hoc appointment in accordance with rule 4 of the F.P.S.C. (Functions) Rules, 1978 (extracts at Annexure I). Under this provision, the cases of appointment made during the period between 1-1-1972 to 5-7-1977 were required to be sent to the Commission for regularisation only with the approval of the President. As advised by the F.P.S.C. the Ministry of Kashmir Affairs and Northern Areas moved a summary for the President for regularisation of ad hoc appointment of Dr. Sher Wali Khan through the Establishment Division vide U.O. of even number dated 21-7-1990. The Establishment Division have conveyed the approval of the President to the F.P.S.C. in terms of Rule 4 of the F.P.S.C. (Functions) Rules vide Letter No. 2/45/89 CP.5, dated 14-10-1991.
3. After interviewing him and scrutiny of his record, the F.P.S.C. have regularised ad hoc appointment of Dr. Ser Wali Khan as Medical Officer (BPS-17) in the Health Department Northern Areas with effect from 26-9-1975, in terms of the said rules vide their Letter No. F.4-1/89-S, dated 1-2-1992 (Annexure III).
Approval of the competent Authority is, therefore, now solicited to the appointment of Dr. Sher Wali Khan as Medical Officer (BPS-17), in the Health Department Northern Areas and his promotion to BPS-18 with effect from 8-10-1981. The A.C. dossier of the officer is also enclosed.
(Sd.) Secretary."
Establishment Division (Mr. U.A.G. Acini Secretary), Islamabad
M/O K.A./NAS U.O. No. E.II.2/13/75, dated 10th February, 1992."
Thereafter, two separate office orders were issued by the Kashmir Affairs and Northern Areas Division. The first office order is dated 14-4-1992 which was to the effect that the competent Authority had regularised the ad hoc appointment of the appellant as Medical Officer (B-17) in the Health Department of Northern Areas with effect from 26-9-1975 in terms of rule 4 of the Federal Public Service Commission (Functions) Rules, 1978. The other office order is dated 23-7-1992 and it was to the effect that the competent Authority had regularised the promotion of the appellant, a Medical Officer (B-17) in the Health Department Northern Areas to BPS-18 with effect from 8-10-1981 as notified vide that Division's office order dated 8-10-1981, referred to earlier.
5. In 1992, a seniority list of BPS-18 Officers was issued by the competent Authority which had shown the appellant senior to respondent No.1, who, against the seniority of appellant, filed an appeal before the Federal Service Tribunal. Before the Tribunal, case of respondent No. 1 was that the entire service of appellant was on ad hoc basis while respondent No.1 was appointed as regular Medical Officer with effect from 6-2-1982 having been selected by the Federal Public Service Commission and as such in all respects he was senior to the appellant. It was additionally argued before the Tribunal on behalf of respondent No. 1 that, before regularisation of service of the appellant, respondent No. 1 was regularly promoted to BPS 18 on 7-1-1990 when regularisation of appellant was made in contravention of the two orders after regular appointment of respondent No. 1 in BPS-18.
The Tribunal in its judgment noted that when the summary was submitted to the then President for regularisation of the appellant as Medical Officer in BPS-17, the then President recorded the following note:--
"11. Dr. Sher Wali Khan was appointed as Medical Officer BPS-17 on ad hoc basis in the Health Department Northern Areas with effect from 26th September, 1975. Under the law the appointment should have been advertised and nominee of the F.P.S.C. appointed within a maximum period of one year. Not only was this done but the ad hoc appointee was also promoted to BPS-18 which is a serious irregularity, as ad hoc appointments are against specific posts and have no right to promotion. In order to prevent such irregularities in future there is a requirement to go into the entire range of ad hoc appointments which are at present continuing indefinitely and suitable action initiated against the delinquent officials.
12. Apparently by referring the case of Dr. Sher Wali Khan to F.P.S.C. the intention appears to be to enable the F.P.S.C. to pronounce on the suitability of his appointment in BPS-17. After so many years it is doubtful whether F.P.S.C. will be able to make an objective assessment in this respect. However, since the Prime Minister has so advised, the President is pleased to refer the case of Dr. Sher Wali Khan to F.P.S.C. in terms of Rule 4 of the F.P.S.C. (Functions) Rules, 1978 to report on the fitness of the officer to hold his post. "
The Tribunal further noted that the case of the appellant was the referred to the F.P.S.C. by the Establishment Division vide letter dated `I4-10-1991 with the request to regularise his ad hoc appointment as Medical Officer (B-17) on the direction of the President and that appellant was interviewed and found suitable for appointment as Medical Officer (B-17) in the Health Department Northern Areas. The letter dated 1-2-1992 of the F.P.S.C. addressed to the Kashmir Affairs and Northern Areas Division has also been referred by the Tribunal in its judgment and the same is also reproduced here:--
"I am directed to refer to your Letter No. E-II-2/13/75 (NA-III), dated the 27th November, 1991 and this office letter of even number dated 26th December, 1991, on the above subject and to say that in terms of Rule 4 of the F.P.S.C. (Functions) Rules, 1978, the Commission has interviewed Dr. Sher Wali Khan, Medical Officer (BPS-171 on 2nd January, 1992 at Islamabad. Mr. Taj M. Naeem, Development Commissioner, Northern Areas, has assisted the Commission as Departmental Representative. The Commission has found Dr. Sher Wali Khan suitable for regularisation of his service as Medical Officer (BPS-17) in the Health Department Northern Areas, under the Kashmir Affairs and Northern Affairs Division.
2. Further action in the matter may please be taken under intimation to his office. The A.C.Rs. of the above-named officer from 1975 to 1990 are returned herewith. The receipt of the same may please be acknowledged."
Paras. 11, 12 and 13 of the judgment of the Federal Service Tribunal which gave the reasoning of the Tribunal in allowing the appeal of respondent No. 1 read as follows:--
"It has been vehemently argued by the learned counsel for respondent No. 4, Dr. Sher Wali Khan that under section 23 of the Civil Servants Act, 1973, the President has got vast powers to deal with the case of any civil servant which he exercised and regularised the services of Dr. Sher Wali Khan, and as such, he is entitled to reckon seniority over and above the appellant. There is no cavil about this issue and for the sake of convenience, section 23 of the Act is also reproduced hereunder:--
Saving.---Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable.
Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule.'
The proviso to section 23 of the Act clearly lays down that where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule. Since Dr. Sher WAR Khan's ad hoc appointment as Medical Officer (Grade-17) continued for a considerable long period, which was in utter disregard of the rules, the then President took serious notice of such an irregularity directing initiation of suitable action against the delinquent officials and as the Prime Minister had advised, it seems that he, under Rule 4 of F.P.S.C. (Functions) Rules, 1978, perhaps, half-heartedly and on humanitarian grounds, referred the case of Dr. Sher Wali Khan to F.P.S.C. to report on the fitness of the officer to hold his post, but he did not regularise his appointment in B-17 or promotion in B-18. Therefore, the objection of learned counsel for respondent No. 4, Dr. Sher Wali Khan is repelled.
The other objection raised by the Advocate for respondent No. 4, is that seniority is not a vested right, but according to the Civil Servants Act, 1973 which regulates the terms and conditions of service of the civil servants, section 8 thereof provides for seniority and the appointing authority has been enjoined to cause a seniority list of the members of service for which rules have been framed by the Legislature called the General Principles of Seniority to redress the grievances of the civil servants. Since seniority plays a major role in hosting up service prospects of the civil servants, we are of the view that seniority is very much a term and condition of service, and particularly in the circumstances when the respondent No. 4 has been allowed seniority over and above the appellant mala fidely by regularising his irregular service rendered in B-17 and also the promotion to B-18, and, therefore, this objection is also repelled.
12. From the above discussions the position that emerges is that appellant having been appointed on regular basis as Medical Officer (B-17) with effect from 6-2-1982 and respondent No. 4 Dr. Sher Wali Khan's ad hoc appointment in B-17 was regularised to the extent that he may not be removed from service but the commission had not given him benefit of regularisation retrospectively and earlier opined that his promotion to B-18 was not legal. Thus, the Commission has not regularised his promotion but the Ministry without justification took up his promotion to B-18 as regular and issued the notification, without processing his case through the procedure prescribed by rules. As such his regularisation in B-18 was not regular and it was all along objected by the Minister. Federal Public Service Commission and even the President, and in such circumstances he could not have a legitimate right for reckoning seniority order and above the appellant.
13. For the reasons recorded above, we allow the appeal with the direction that the appellant shall rank senior to respondent No.4."
6. Being aggrieved by the impugned judgment dated 6-10-1994 of the Federal Service Tribunal, appellant filed a petition for leave and, by order dated 9-4-1995, leave was granted to the appellant. We have heard at length the arguments of Mr. K.M.A. Samdani, learned Senior Advocate Supreme Court for the appellant, Sh. Riazul Haq, learned Advocate Supreme Court for respondent No. 1 and Maulvi Anwarul Haq, learned Deputy Attorney General, who appeared for the Federal Government. With the assistance of the learned counsel, we have referred to the relevant record.
7. Mr. K.M.A. Samdani, learned counsel for the appellant has argued that appellant had joined Government service in Grade-17 on 26-9-1975, though the appointment was shown to be ad hoc, whereas the respondent No.1 joined Government service in January, 1982 in Grade-17, appellant was promoted to Grade-18 in October, 1981, before respondent No. 1 joined service in Grade-17 in January, 1982, and that also initially on probation and was promoted to Grade-18 in January, 1982, the first combined seniority list of officers of the Health Department of Northern Areas of Grades-17 and 18 was issued on 28-9-1980 and, amongst the Grade-17 officers, appellant was shown at Serial No. 2 whereas the name of respondent did not appear in the list as he had not joined Government service till January, 1982, then according to Mr. Samdani, in October, 1985, a separate seniority list of Grades-17 and 18 officers was issued and as the appellant had already been promoted to Grade-18 in October, 1981, his name appeared in that seniority list at Serial No. 3 whereas, in the seniority list of Grade-17 officers respondent's name appeared at Serial No. 4 and no objection was raised by the respondent in respect of the name of the appellant appearing in the seniority list of Grade-18 officers. According to Mr. Samdani, therefore, throughout the appellant was senior to the respondent and in age also the appellant is much senior to respondent No. 1. It was then submitted by Mr. Samdani that on objection being raised by A.G.P.R., the question of formal regularisation of appellant's service cropped up and the matter was referred, through proper channel, to the President who referred the matter to the Federal Public Service Commission and the Commission found the appellant fit for regularisation and, once the service of the appellant was regularised in Grade-17, no objection could be raised as to his seniority in Grade-17 from the date he joined Government service in 1975 nor to his promotion to Grade-18 in 1982. According to learned counsel, in the circumstances, the view taken by the Federal Service Tribunal that respondent was senior to the appellant cannot be…
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