Full Judgment Text & Judicial Ruling

1993 P L C (C

1993 P L C (C.S.) 488

[Federal Service Tribunal]

Present: Syed Ally Madad Shah, Chairman and Rasheed‑ud‑Din Arshad Member

Dr. Sh. ALEEM MAHMOOD

versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 142 others

Appeals Nos. 262(R), 268(R), 271(R), 272(R), 290(R), 293(R) and 386(R) of 1989, decided on 12th May, 1991.

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 10‑‑‑Seniority‑‑‑Determination of‑‑‑Civil servants serving in different departments. in Grade‑19, were transferred to Secretariat Group and were absorbed by way of induction, from the dates they had entered Secretariat Group by way of transfer and were allowed seniority from those date;‑‑‑Civil; servants so inducted claiming seniority from the dates they had entered Grade‑19 wherever they were‑‑‑Entitlement‑‑‑Civil servant's induction into Secretariat Group being unqualified, their plea for reckoning their seniority in accordance with provisions of O.M. dated 12‑4‑1976 was impliedly accepted i.e., their entitlement to reckon their seniority from the respective dates of their entry into Grade‑19, wherever they were‑‑‑Exercise of re‑determination of seniority would have, thus, to be made in the Establishment Division with option to aggrieved persons to have legal remedy as might be admissible to them, subject to the re‑examination of the order of induction of specified appellant in specified appeal.

Jahangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan PLD 1990 SC 1013 and Syed Ali Muktada Wahidi v. Establishment Division and others 1984 PLC (C.S.) 546 ref.

Appellant in person (in Appeal No. 262(R) of 1989).

Sardar Muhammad Amir Akbar Khan, Standing Counsel for the Government (in Appeals Nos. 262(R), 268(R), 271(R), 272(R), 290(R), 293(R) and 386(R) of 1989)

Respondent No. 104 in person (in Appeal No. 262(R) of 1989.)

Nemo for the other private Respondents (in Appeal No.262(R) of 1989)

Gulfam Akhtar Awan for Appellant (in Appeal No. 268(R) of 1989).

All the Private Respondents absent (in Appeal No. 268(R) of 1989).

Tanvir Bashir Ansari for Appellant (in Appeal No. 271(R) of 1989).

Saleem Zulfiqar for Private Respondents M/s. S. Ibrahim Shah, Dr. Sh. Aleem Mahmood and Miss Shirin Ghoury (in Appeal No. 271(R) of 1989).

Abdul Razaq Khan and S.M. Badrul Hassan Respondents in person (in Appeal No. 271(R) of 1989).

Rest of the private Respondents absent (in Appeal No. 271(R) of 1989)

Appellant in person (in Appeal No. 272(R) of 1989)

Ibrahim Shah, Dr. Sh. Aleem Mahmood, Akbar Hayat Khan and Abdul Raza Khan Private Respondents in person (in Appeal No. 272(R) of 1989).

Saleem Zulfiqar for Miss Shirin Ghoury Respondent (in Appeal No. 272(R) of 1989).

Rest of the private Respondents absent (in Appeal No. 272(R) of 1989)

Saleem Zulfiqar for Appellant (in Appeal No. 290(R) of 1989).

M/s. Ibrahim Shah, Dr. Sh. Aleem Mahmood, Akbar Hayat Khan Private Respondents in person (in Appeal No. 290(R) of 1989).

Rest of the private Respondents absent (in Appeal No. 290(R) of 1989)

Appellant in person (in Appeal No. 293(R) of 1989)

M/s. Ibrahim Shah, Dr. Sh. Aleem Mahmood Private Respondents in person (in Appeal No. 293(R)‑of 1989).

Rest of the private Respondents (Absent) (in Appeal No. 293(R) of 1989.

Appellant in person (in Appeal No. 386(R) of 1989)

None of the private Respondents present in Appeal No. 386(R) of 1989.

Dates of hearing: 24th and 25th February, 1991.

JUDGMENT

SYED ALLY MADAD SHAH (CHAIRMAN): ‑‑All the seven appeals are of identical nature. They have been heard together and are disposed of by this consolidated judgment.

2. All the seven appellants M/s. (Dr.) Sh. Aleem Mahmood, S. Ibrahim Shah, Dr. Abdul Hamid Qureshi, S.M. Badrul Hassan, Miss Shirin Ghory, Akhar Hayat Khan and Abdul Razaq Khan were inducted in the Secretariat Group in the cadre of Deputy Secretaries in the following circumstances. They have preferred these appeals for determination of their seniority in the said cadre.

3. The appellants were serving in different departments/ organisations in Grade‑19 when they were transferred to the Secretariat Group in the year 1982 under the provisions of section 10 of the Civil Servants Act, 1973 and were absorbed there by way of induction from the dates they had entered the Secretariat Group by way of transfer and were allowed seniority from those dates. The orders of their induction were issued in December, 1988. They claimed seniority from the dates they had entered Grade‑19 wherever they were. Their claim was turned down. Therefore, they preferred these appeals.

4. The facts and circumstances which led to the induction of the appellants in the Secretariat Group are concisely stated in the Summaries submitted to the President by the Establishment Secretary. The first summary was submitted under Establishment Division No.10/3/87‑CP.3, dated 1‑6‑1988. Its text and the orders made thereon are reproduced below:‑

"ESTABLISHMENT DIVISION SUMMARY FOR THE PRESIDENT

Subject:‑ INDUCTION OF OFFICERS SERVING AS DEPUTY SECRETARY/JOINT SECRETARY UNDER SECTION 10 OF THE CIVIL SERVANTS ACT 1N THE SECRETARIAT:

The Secretariat Group comprises posts of Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretariats as are borne on the cadre of All Pakistan Unified Grades in terms of Establishment Division O.M. No. 2/2/75‑ARC, dated 12th April, 1976 (Annexure `I').

According to the existing instructions contained in O.M. dated 12‑4‑1976 ibid, appointments to the post of Deputy Secretary and Joint Secretary can be made in accordance with the following methods:‑

DEPUTY SECRETARY:

(i). By promotion of Grade‑18 officers of the Office Management Group and Secretariat Group on the recommendations of the Central Selection Board.

(ii) By horizontal movement from the other Occupational groups of Grade‑19 officers who have been recommended by the Ministries/Divisions, Departments or Provincial Governments and have been found fit by the Central Selection Board.

(iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc. as may be prescribed.

JOINT SECRETARY:

(i) By promotion of officers in the grade of Deputy Secretary on the recommendations of the Central Selection Board.

(ii) By horizontal movement of such Grade‑20 officers of the various Occupational Groups as are recommended by Ministries/Divisions/ Departments/Provincial Governments etc. and are found fit by the Central Selection Board.

(iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualification and experience etc. as may be prescribed.

115. While the methods of direct appointment through FPSC was never used, the horizontal movement of officers from other occupational groups was also stopped in 1977. Thus appointments to the post of Deputy Secretary and Joint Secretary have only taken place through the method of promotion from the Section Officers and Deputy Secretaries. The utilization of only one source for manning the Secretariat resulted in a serious shortage of officers in the Secretariat at the level of Deputy Secretary. The stoppage of induction through horizontal movement as provided under the rules also deprived the Secretariat of officers with rich and varied field experience.

116. As the movement of officers from Occupational Groups to Secretariat has remained suspended during the last ten years, the Government have posted officers to Secretariat under section 10 of the Civil Servants Act, 1973. The Officers so appointed have now worked in Secretariat for a number of years and have been requesting for regular induction in the Secretariat Group.

117. It may be pointed out that the proposed reorganisation of the Secretariat Group in the wider context of Administrative Reforms also contains recommendation for induction of officers serving as Deputy Secretary/Joint Secretary under section 10 of the Civil Servants Act. As the matter is still under consideration of the Government and may take considerable time to finalise, the officers working in the Secretariat, both as Deputy Secretary and Joint Secretary under section 10 of the Civil Servants Act, are greatly concerned about their future prospects. The absence of these officers for a number of years, from their present Groups/Departments has adversely affected their career prospects. It would be only just and equitable if the fate of these officers is decided by inducting these officers in Secretariat Group through the Central Selection Board 11. This would ensure their continued availability to the Secretariat and also relieve them of their present state of uncertainty on this account.

118. The existing instructions permit manning of the post of Deputy Secretary and Joint Secretary in the Secretariat Group by officer belonging to various Occupational Groups through horizontal movement. Therefore, the officers who are working in the Secretariat under section 10 of the Civil Servants Act for the last 3 years or more. deserve to be appointed, subject to approval of the Central Selection Board‑II to the Secretariat Group on a regular basis.

119. In addition to the officers of Occupational Groups discussed in the preceding paras, there is another category of officers (six in number who were posted to the Secretariat in response to a D.O. letter dated 29th May, 1980 (Annexure II) of the then Establishment Secretary. It was stated in the D.O. Letter which was addressed to all Federal Secretaries, that some posts of Deputy Secretaries in the Secretariat Group were to be filled through horizontal movement and the officers selected would be considered for selection as Deputy Secretaries through the Central Selection Board. In response some Ministries/Divisions recommended officers for appointment as Deputy Secretary. There are six such officers for appointment as Deputy Secretary. There are six such officers who are still serving as Deputy Secretary in the Secretariat and have not so far been inducted in the Secretariat Group. Their cases should m all fairness have been placed before the Central Selection Board to determine their suitability for induction in the Secretariat Group in view of the commitment made by the Establishment Secretary in the letter of 29th May, 1980.

120. In view of the position explained in the preceding paragraphs the following proposals are submitted for the kind approval of the President:

(i) The officers belonging to regularly constituted Occupational Groups and presently serving as Deputy Secretary/Joint Secretary under section 10 of the Civil Servants Act, 1973 for the last three years or more may be inducted in the Secretariat Group subject to the recommendations of the Central Selection Board. There are five such officers working as Deputy Secretary and seven officers as Joint Secretary (Annexure III).

(ii) The six officers (Annexure `1V') appointed as Deputy Secretary under section 10 of the Civil Servants Act in pursuance of the D.O. letter of the Establishment Secretary may also be inducted as Deputy Secretary in the Secretariat Group subject to the recommendations of the Central Selection Board,

121. The proposal contained in para. 8(i) above does not require any change in the existing rules/instructions governing constitution of the Secretariat Group. The proposal in para. 8(ii) however has been recommended in relaxation of the existing instructions.

122. The approval of the President is solicited to the proposals at para. 8 above.

(Sd.) K.U. FARUQUI, Establishment Secretary. COS TO THE PRESIDENT

Estt. Divn. No. 10/3/87‑CP 3, dated 1‑6‑1988.

THE PRESIDENT

123. Please discuss.

(Sd.) President. 29‑7. ESTABLISHMENT SECRETARY

124. The President may like to see the proposal before discussing.

(Sd.) Estab. Secretary. 28‑8. COS TO PRESIDENT:

Estab. Divn. No. 10/3/87‑CP3, dated 29‑8‑1988

125. The President has been pleased to direct as‑under:‑

"A consolidated case covering officers both in para. 8(i) and para. 8(ii) plus that of the engineering s working in the Secretariat Group may be prepared for induction in the Secretariat Group subject to recommendations of the Central Selection Board".

(Sd.) BRIG. ZULFIQAR AHMAD KHAN, Director‑General (Coord.) 27‑9.

ESTABLISHMENT SECRETARY

(Sd.) Estab. Secretary 27‑9. In pursuance of the direction of the President as per the concluding paragraph of the aforesaid Summary, 'the case was further examined and another Summary was submitted to the President under Establishment Division No.10/3/87‑CP.3, dated 27‑10‑1988. The entire text of the Summary and the order of the President recorded thereon by the Principal Secretary to the President, are reproduced below:

"ESTABLISHMENT DIVISION SUMMARY FOR THE PRESIDENT

Subject;‑ INDUCTION OF OFFICERS AS JOINT SECRETARY DEPUTY SECRETARY IN THE SECRETARIAT GROUP.

On the summary regarding induction of officers, presently serving as Joint Secretary/Deputy Secretary under section 10 of the Civil Servants Act, 1973 or on deputation from other Occupational Groups/Cadres, in the Secretariat Group submitted to the President vide U.O.No.10/3/87‑CP.3, dated 1st June, 1988 (Annexure I) he was pleased to approve as under:‑

(a) The officers belonging to regularly constituted Occupational Groups and presently serving as Deputy Secretary/Joint Secretary under section 10 of the Civil Servants Act, 1973 for the last 3 years or more may be inducted in the Secretariat Group subject to the recommendations of the Central Selection Board.

(b) The 6 officers not belonging to any regularly constituted group and the engineers serving for a period of 3 years or more as Deputy Secretary under section 10 of the Civil Servants Act, 1973 or on deputation may also be inducted in the Secretariat Group, in relaxation of the existing instructions, subject to the recommendations of the Board.

2. Consequently the cases of officers, listed in Annex. II, were placed before the Central Selection Board for determination of their suitability for induction as Joint Secretary/Deputy Secretary in the Secretariat Group. The Central Selection Board examined the record of the officers on the panel and recommended (minutes at Annex‑III) as under:‑‑

(a) The following officers may be inducted as Joint Secretary in the Secretariat Group:‑‑ .

(1) Mr. Fakhuruddin Mallick.

(2) Mr. Ghazanfrullah Khan.

(3) Mr. Manzoor Hussain.

(4) Mr. Shaukat Hussain.

(5) Mr. Farhat Hussain.

(6) Mirza Hamid Hasan.

(7) Mr. Muhammad Younis Khan.

(b) The following officers belonging to regularly constituted occupational groups may be inducted as Deputy Secretaries:‑

(1) Mr. Zaheeruddin Babar.

(2) Mr. Muhammad Iqbal Malik.

(3) Mr. Pervez Ejaz Sheikh.

(4) Mr. Ahmad Waqar.

(51) Mr. Abdul Hafeez Mirza.

(c) The following officers belonging to Cadres other than regularly constituted occupational groups may be inducted as Deputy Secretary in relaxation of the existing instructions:‑

(1) Sheikh Pervez Nusrat.

(2) Mr. Ajmal Mahmood Qureshi.

(3) Dr. Shaikh Aleem Mahmood.

(4) Mr. Akbar Hayat Khan Gandapur.

(5) Mr. S. Ibrahim Shah.

(6) Miss Shireen Ghauri.

(d) The following engineers may be inducted as Deputy Secretary in relaxation of the existing instructions:‑

(1) Mr. Abdul Razak Khan.

(2) Mr. Zafar Ahmed.

(3) Mr. Badrul Hasan.

(e) Since the record of the following officers was not complete, the Board recommended deferment of their cases and directed the Establishment Division to put up their cases in the next meeting after completing their record:

(1) Dr. Abdul Hamid Qureshi.

(2) Mr. Idrees Muhammad.

(f) The performance of Mr. Muhammad Aslam Farouk was not found satisfactory as such it was recommended that he may not be inducted as a Deputy Secretary in the Secretariat Group.

(g) The following engineers had not completed 3 years service as Deputy Secretary as such the Board recommended that their case may be resubmitted to the Board on completion of 3 years period:‑

(1) Mr. Muhammad Hashim Leghari.

(2) Mr. Jehangir Shaikh.

(3) Mr. Sher Akbar.

3. Another important issue related with the induction of these officers is the determination of their seniority on induction in the Secretariat Group. With the' amendment in Civil Servants Act, 1973 through Ordinance No. III of 1984, appointments, whether by direct recruitment or promotion, are now made to the post in a Service/Cadre and not in a grade. In the light of this amendment, seniority in a post in a service or Cadre, to which a civil servant is appointed takes effect from the date of regular and continuous appointment to that post. To stay within this framework it is proposed that the officers to be inducted in the Secretariat Group may be appointed on a regular basis as Deputy Secretary/Joint Secretary from the date they joined such posts in the Secretariat. The notifications to be issued would take care of this aspect. Accordingly it is proposed that the inducted officers may be allowed seniority from the date they started officiating in the Secretariat Group Cadre to the posts of Joint Secretary/Deputy Secretary, in the Federal Secretariat, either under section 10 of the Civil Servants Act, 1973 or on deputation. This would also ensure that the seniority assigned to the inducted officers is not such as would adversely effect the interest of the existing members of the Secretariat Group.

4. Before notifying the induction of the officers in the Secretariat Group, they will be given an offer of appointment in the light of the seniority principle proposed above.

(S d.) K.U. FARUQU1, Establishment Secretary.

COS TO THE PRESIDENT:

No. 10/3/87‑CP, dated 27‑10‑1988.

Establishment Division No. 10/3/87‑CP. 3, dated 27‑10‑1988.

6. The President has been pleased to approve the proposals in paras and 3 above.

7. The President has also been pleased to direct that the Establishment Division must fix a percentage of vacancies both in BPS‑20 and BPS‑19 against which such induction can be made in future, which will be essential to:

(a) ensure off and on/haphazard inductions.

(b) Safeguard the interest of existing officers in the Secretariat Group.

(Sd.) VA. JAFAREY, Principal Secretary to the President 29‑11‑1988.

ESTABLISHMENT SECRETARY:

148. Issue notifications.

(Sd.) K.U. FARUQUI, Establishment Secretary. 1/12."

The appellant except Dr. Abdul Hameed Qureshi (Appeal No. 271(R)/89) were informed accordingly under Office Memo. No.59‑23/88‑E.2, dated 6‑12‑1988 and they were called upon to communicate within 15 days if they would accept the offer unconditionally. They accepted the offer of their induction in the Secretariat Group in the cadre of Deputy Secretary but they did not accept the condition of their reckoning seniority from the date of their regular officiation in the Secretariat Group and claimed seniority from the date they had entered Grade‑19 in their parent departments in accordance with the provisions of Rule 8 of para. 3(2) of the Establishment Division Office Memorandum No. 2/2/75‑ARC, dated 12‑4‑1976. However, orders of their induction in the Secretariat Group with effect from the respective dates of their entry in the Secretariat Group were issued on 24‑12‑1988 and no decision on their claim for determination of their seniority with retrospective effect was communicated to them. It is in the context of the above facts that the appellants have filed these appeals for determination of their seniority after the rejection of their departmental representations/appeals.

5. The subtle question for determination is the date from which the appellants are entitled to reckon their seniority in the cadre of Deputy Secretary in the Secretariat Group. It would be worthwhile to reproduce here in below the relevant paragraphs of Establishment Division O.M. No.2/2/75‑ARC, dated 12‑4‑1976 (as corrected until its publication in ESTACODE 1983 edition), where under the Secretariat Group was constituted:

Secretariat Group:

Sl. No. 18:

In continuation of the Establishment Division Office Memorandum No. 1/2/75‑ARC, dated the 27th January, 1975, it has been decided to constitute another occupational group to be called the "Secretariat Group". The group will comprise posts of Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretariats as are borne on the cadre of All‑Pakistan Unified Grades.

2. The Secretariat Group will be under the administrative control of the Establishment Division and will function in accordance with the rules and procedure outlined below.

3. Deputy Secretary.‑‑‑Appointments to the post of Deputy Secretary will be made in accordance with the following methods:‑

(i) By promotion of Grade‑18 officers of the Office Management Group and the Secretariat Group on the recommendations of the Central Selection Board.

(ii). By horizontal movement from other Occupational Group of Grade‑19 Officers who have been recommended by the Ministries/Divisions, Departments or Provincial Governments and have been found fit by the Central Selection Board.

(iii) By direct appointment an the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc. as may be prescribed.

4. xx xx xx

5. xx xx xx

6. xx xx xx

7. xx xx xx

Seniority

8. Deputy Secretary.‑‑‑Seniority would be determined from the date of continuous regular officiation as Deputy Secretary, or in a post in Grade‑19, whichever is earlier.

9. xx xx xx

10. xx xx xx

11. xx xx xx

12. xx xx xx

13. xx xx xx

14. The terms and conditions of Government servants belonging to this Group will be governed, as in the case of other Government servants, by the‑provisions of the Civil Servants Act, 1973, and rules and orders issued thereunder from time to time.

15. This supersedes Establishment Division O.M. No. 2/2/75‑ARC, dated the 21st February, 1975."

6. The appellants Dr. Sh. Aleem Mahmood, Mr. S.M. Badrul Hassan and Mr. Abdul Razak Khan argued the appeals themselves; while the appellants Mr. S. Ibrahim Shah, Dr. Abdul Hameed Qureshi and Miss Shirin Ghory were represented by their respective Advocates Mr. Gulfam Akhtar Awan, Mr. Tanvir Bashir Ansari and Mr. Saleem Zulfiqar. The appellant Dr. Sh. Aleem Mahmood took the lead and argued the appeal extensively. His arguments were by and large adopted by or on behalf of the other appellants ` with few additions here and there. The appeals are directed against a large number of respondents besides the Federal Government through the : ' Establishment Secretary. There are 144 respondents in Appeal No. 262(R)/89; 125 in Appeal No. 268(R)/89; 64 in Appeal No. 271(R)/89; 160 in Appeal No.272(R)/89;19 in Appeal No. 290(R)/89; 147 in Appeal No. 293(R)/89 and 17 in Appeal No. 386(R)/89. All the appeals have been resisted by the Federal Government which has filed written objections and was represented at the hearing by the Standing Counsel Sardar Muhammad Amir Akbar Khan. From amongst the private respondents, a few of them have filed written objections but none of them appeared at the hearing of the appeals. Only respondents, 56, 78, 87, 95, 100, 118 and 131 have filed objections in Appeal No. 262(R)/89. In Appeal No. 268(R)/89, only respondents 34, 59, 81, 97 and 101 have filed written objections. None of the private respondents in Appeal No. 271(R)/89 has filed written objections. Only respondents No. 77 and 99 have filed written objections in Appeal No. 272(R)/89. None of the private respondents has filed written objections in Appeal No. 290(R)/89. Only one respondent No. 78 has filed written statement in Appeal No. 293(R)/89 that he had already retired from service and the matter will be attended to by the Establishment Division and others. None of the private respondents has filed objections in Appeal No.386(R)/89.

7. The main thrust of the arguments of the appellants was that on their induction in the Secretariat Group, in whatever manner, they are entitled to ' reckon their seniority as laid down in paragraph 8 of the O.M. dated 12‑4‑19'76, i.e. from the date of their continuous regular officiation as Deputy Secretary or from the date they held a post in Grade‑19, whichever was earlier. The appellant Dr. Sh. Aleem Mahmood cited some authorities in support of his submissions. He also urged emphatically that they were initially transferred to

the service in the Secretariat with the purpose of their induction in the Secretariat Group and he made pointed reference to the D.O. letter of the Establishment Secretary dated 26th/29th May, 1980 which was circulated amongst the Secretaries of the Federal Government. It would be worthwhile to reproduce the D.O. letter in extenso:

"SYED IJLAL HAIDER ZAIDI ‑

ESTABLISHMENT SECRETARY

TEL. 67651 ESTABLISHMENT DIVISION RAWALPINDI 26th/29th May. 1980.

My dear Secretary,

Some posts of Deputy…

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