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Petitioner: ALI MUQTADA WAHIDI VS Respondent: SECRETARY, ESTABLISHMENT DIVISION
1984 P L C (C
1984 P L C (C. S.) 546
[Federal Service Tribunal]
Before Muhammad Irshad Khan and Brig. (Retd.) Abdur Rashid, Members
Syed ALI MUQTADA WAHIDI
Versus
The SECRETARY, ESTABLISHMENT DIVISION AND OTHERS
Appeal No. 30 (R) of 1982, decided on 20th December, 1983.
(a) Service Tribunals Act (LXX of 1973)‑
‑‑ S. 4 read with Civil Servants Act (LXXI of 1973); S. 8 Seniority _ Maintenance of seniority list‑Purpose‑Not only proper administration of service, cadre or grade but also efficient functioning of administration itself ‑ Appointing authority under legal obligation to prepare and maintain up‑to‑date seniority list‑Impugned seniority list though succeeded by two earlier lists and acted upon for purposes of promotion- Taking shield of technical pleas with a view to avoid adjudication of claim relating to terms and conditions of a civil servant by Service Tribunal on plea that such list was yet provi sional in circumstances, held, really a pitty‑Respondent. Depart ment (Establishment Division) advised to shed such unreasonable and unjust attitude‑Representations of appellant against impugned seniority list remaining undecided‑Appeal filed after exhausting departmental remedy against such seniority, in circumstances, held, competent
S. H. M. Rizvi v. Maqsood and others P L D 1981 S C 612 and Sajjad Ahmed Khan v. Government of Sind and another 1981 P L C (C. S.) 203 distinguished.
Muhammad Afzal v. Government of the Punjab 1982 S C M R 408 and Islamabad Club v. Punjab Labour Court P L D 1981 S C 81 and P L D 1957 Kar. 685 ref.
Mrs. Munawar Sanni v. Director, Army Education 1984 S C M R 35 rel.
(b) Civil Servants Act (LXXI of 1973)‑
‑‑S. 8 (4)‑Seniority ‑ Determining factor‑Date of regular promotion to a post in particular grade‑Seniority as Deputy Secretary in Secretariat Group‑Officers drawing pay in N. P. S. 18 with special pay of Rs. 440 p. m. to in appointments as Officer on Special Duty and Deputy Solicitor equivalent to and comparable with post of Deputy Secretary subsequently formally appointed as Deputy Secretary‑Held: Entitled to seniority from date of his initial appointment in such posts and not merely from date of his joining post of Deputy Secretary.
(c) Civil Servants Act (LXXI of 1973)‑
‑‑S. 8(3)‑Seniority‑Lateral entrants‑Inter se seniority in Secretariat Group‑Principle of inter se seniority on basis of selection in one batch‑Cannot be availed for purposes of affecting adversely right of seniority of other members of group‑Such principle, held, not applicable to lateral entrants who are an admixture of direct recruit and promotees in absence of rules required to be framed under S. 8 (3)‑ Merit assigned after eight years not deserving any credi bility‑Alteration adversely seniority position of Members of Group on basis of such merit after eight years, held, illegal and mala fide‑‑Lateral entrants, held, entitled to seniority only with reference to dates of their continuous officiation as Deputy Secretary‑Mala fide‑Means ‑ In bad faith‑Such act usually taken maliciously to which person taking same does so out of personal motives either to hurt a person against whom such action taken or to benefit oneself or some other=Action in colourable exercise of power for collateral purposes not authorised by law also mala fide.
(d) Civil Servants Act (LXXI of 1973)‑
‑‑‑S. 8 (1)‑Only first seniority list to be treated as provisional‑ Every other list a final list‑Marking "provisional" every list due to one reason or the other, held utter violation of rules‑Service Tribunal observing that this field needs a serious attention.
Appellant in person.
Munir A. Sheikh, Deputy Attorney‑General of Pakistan for Respondents.
Respondents No. 32, 66 and 165 in person.
Date of hearing: 27th October, 1983.
JUDGMENT
MUHAMMAD IRSHAD KHAN (MEMBER).‑Relevant facts giving rise to the present .appeal, in brief are that the appellant was appointed as Section Officer on the 30th June, 1961. On introduction of National Pay Scales he was allowed Senior Scale of Section Officer (N.P.S.‑18) w. e. f. 1st March, 1972. Thereafter, he was promoted and appointed to officiate as Officer on Special Duty (Adaptation) in Grade‑18 plus Special Pay of Rs. 440 per mensem with effect from 1st November, 1974. He was then appointed as Deputy Solicitor, again in Grade‑18 plus Special Pay of Rs. 440 p. m. with effect from 26th October, 1976. Subsequently, vide Establishment Division Notification, dated 24th October, 1978 he was appointed as Deputy Secretary to the Federal Government. On 21st February, 1975, in the wake of Administrative Reforms, the posts of the Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretariat as are borne on the cadre of All‑Pakistan Unified Grades were pooled together to constitute a Secretariat Group and in October, 1975, a provisional grade‑wise seniority list of officers of this group was circulated for eliciting objections etc. but the appellant's name was not included in that list. He, therefore, represented for the inclusion of his name in the list but, according to him, no decision was taken thereon until by his D. O. letter dated 17th August, 1981, the Establishment Secretary circulated a fresh grade‑wise seniority list of officers of the Secretariat Group and it was stated in the "Foreword" thereto that the lists circulated previously had been prepared without due regard to the extant laws and rules on the subject and that the fresh list had been prepared in accordance with the relevant laws/rules/ instructions as per details given in the Annexure to that "Foreword" Any omission, mistake or discrepancy was required to be communicated by the officer concerned to the Establishment Division by the 15th of September, 1981, which date was extended upto the 15th of October, 1981. The name of the appellant appeared in this list at Serial No. 246, most presumably, on the basis of his appointment as Deputy Secretary to the Federal Government, with reference to the date of his formal appointment as Deputy Secretary to the Federal Government viz. 24th October, 1978. He represented claiming, inter alla, seniority with effect from the 1st of November, 1974, the date when he was appointed as Officer on Special Duty in Grade‑18 plus Special Pay of Rs. 440 p. m. Failing to get any reply whatsoever from the Establishment Division he submitted a representation to the President of Pakistan which too remained unanswered, lter4ce the present appeal.
2. The sole emphasis of the learned Deputy Attorney‑General, appearing on behalf of respondent No. 1, was on his contention about the competence and maintainability of the appeal on purely technical grounds. His argument was that since the appeal was against a provisional seniority list, it was not maintainable. To support the contention he mainly relied upon the judgment of the Supreme Court in the case of S. H. M. Rizvi v. Maqsood Ahmed and others (P L D 1981 S C 612) and that of the Sind High Court reported as Sajjad Ahmed Khan v. Government of Sind and another (1981 P L C (C S) 203). The appellant's reply to the objection, briefly speaking, was that he bad approached this Tribunal after exhausting the departmental remedy against the final determination of his seniority. He also argued that while preparing the impugned seniority list of 1981, the legally settled principle of seniority had been incompetently and wrongly changed altogether and his appeal was directed against those changes as well which by themselves provided a cause of action to the appellant. He submitted that the case law referred to by the learned Deputy Attorney General is not applicable to his case. In support of his claim he cited the judgments of the Supreme Court reported as Muhammad Afzal v Government of the Punjab (1982 S C M R 408) and Islamabad Club v. Punjab Labour Court (P L D 1981 S. C. 81).
3. We have given our anxious consideration to the submissions of the parties and have carefully gone through the authorities cited by them. In the Supreme Court's case P L D 1981 S C 612 cited by the learned Deputy Attorney‑General, the respondent in that case had filed an objection to the seniority lists and after waiting for ninety days, filed an appeal under section 4 of the Service Tribunals Act, 1973, treating that seniority list to be the final order. It was held by the Supreme Court that the seniority list challenged before the Tribunal in that case was issued under the instructions of the Establishment Division which required that the first issue of the gradation list was to be provisional and objection were to be invited thereto and the list was to be finalized. Therefore, that was a provisional list notwithstanding the omission to mark it as provisional. The respondent in that case led an objection to the seniority list but before it was disposed of or the list was finalized he brought his claim before the Service Tribunal without even making a representation to the next higher authority. As there was no final order ever passed on the objection of the respondent and he had not exhausted the departmental remedy, his appeal before the Service Tribunal was held incompetent by their Lordships of the Supreme Court.
4. The facts of the present case are, however, quite different. Here the impugned seniority list is not the first gradation list required to be prepared as provisional under the instructions of the Establishment Division but such a provisional grade‑wise seniority list of the concerned group was circulated by the Establishment Division vide letter No. 2/4/ 1975/A‑VI, dated 2nd October, 1975. In fact, yet another gradation list was issued in June, 1976, after the reconstitution of the Group. Therefore, by no stretch of imagination, the impugned list can be considered as provisional. It was admitted by the Representative of, the Establishment, A Division that the impugned list is in vogue and is being, acted upon for the purpose of promotion, etc. It appears to us that the learned Deputy Attorney‑General had not been properly briefed on facts as he was not even aware of the fact that the lists of 1976 and 1981 were being acted upon but also had been drastically changed twice‑first in 1979 and then in 1980‑without even circulating theta and promotions had been made on the basis of those modified lists which had not seen the light of the day. We could notice that the learned Deputy Attorney‑General was taken aback when these facts came to surface during the arguments and had to concede in most polite and tactful words that the action of the Establishment Division was improper. At any rate, the seniority of the appellant has been finally determined by the Establishment Division vide the impugned list which is now being acted upon, and, as stated above, he has exhausted the departmental remedy as well 'before filing the present appeal. In the Supreme Court's judgment relied upon by the learned Deputy Attorney‑General, a final order has been defined as having "the distinction of determining the rights of the parties." We are also clear in our mind that the ratio decidendi in that case was that, "not only the provisions of the law applicable so require it is in the interest of efficient and effective functioning of the Service Tribunal itself that it should adjudicate on concrete controversies concluded by a deter minative order of the departmental authority." The matter under adjudication in the present appeal, in our view, stood concluded by the determinative decisions and actions of the Establishment Division. It can thus be safely concluded that the aforesaid Supreme Court's judgment is, not attracted to the facts of this case.
5. In the Sind High Court's judgment cited by the learned Deputy Attorney‑General; the petitioner in that case had challenged the pro visional seniority list of officers of his grade on the ground that the Government had not fixed his seniority in light of the observation of the High Court in W. P. No. 27/1957 reported as P L D 1957 Kar. 685 and since the impugned action was provisional, he could not go to the Service Tribunal. The High Court, however, held that the seniority rules of the Government of Sind required that in January every year updated seniority lists should be prepared and that there was nothing on record to show that any effort bad been made by the petitioner to obtain the final seniority list which; under the rules, it was the duty of the appointing authority to cause to be prepared or revised every year. The High Court, therefore, refused to interfere in the matter in exercise of its extraordinary jurisdiction saying that "it cannot be allowed to be argued that the matter does not fall within the jurisdiction of the Service Tribunal." Evidently, therefore, this authority is also of no avail. We have, therefore, no doubt, in our mind, that the present appeal is legally competent and maintainable and the objection of Respondent No. 1 in this behalf is accordingly repelled. It may be pertinently added here that, as we will discuss later on, the Establish ment Division had perhaps realized that on merits they had no case to defend and were, therefore, taking shelter behind technical pleas. It is most unfortunate that the Establishment Division should be unable to dispose of representations/objections for years and still wish the poor Civil Servants to run from pillar to post so that the problem may, possibly solve itself with the retirement of the aggrieved civil servants. We may here quote with advantage the view taken by the Supreme Court in a recent case before it being entitled Mrs. Munawar Sanni v. Director Army Education (1984 S C M R 35). In that case the appellant appro ached the High Court by way of a writ petition seeking a declaration that the impugned order refusing the payment of arrears of salary payable to her, was passed without lawful authority and was of no legal effect. The High Court, however, refused to accept this prayer on the ground that the relief sought by the appellant was, in fact, a: money claim, for which the appropriate remedy was the Civil Court. It further observed that if the appellant was of the view that any of the terms and condi tions of her service had been violated, the proper venue for vindication of such a claim was either the higher appropriate authority under the rules or the Service Tribunal. Consequently, the approach of the appellant to the High Court in its constitutional jurisdiction was inappropriate. Her writ petition was accordingly dismissed. However, on the appeal filed by her the Supreme Court did not view with approval the technical objec tion and observed: ‑
"After hearing learned counsel for the parties, we are of the view that in case the appellant was, indeed, entitled to receive the arrears of her salary, during the ‑ entire period that she was kept out in service by an order of termination which was found to be unlawful the authorities should honour her claim for payment of arrears of the salary. The question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of the bounden obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post."
6. It is really a pity that the Establishment Division, which is con sidered to be a custodian of service rights of the civil servants, take shield of technical pleas with a view to avoid the adjudication by this Tribunal of a matter relating to the terms and condition of a civil servant. We, therefore, consider it our sacred duty to advise the Establishment Division to shed this unreasonable and unjust attitude and to set an example for others in the matter of disposal of representations/objections and finalization of seniority lists in respect of the groups with which they are concerned. There can be no two opinions that seniority lists required to be maintained not only for the proper administration of service, cadre, or grade but also for the efficient functioning of the administration itself. Indeed by virtue of section 8 of the Civil Servants Act, 1973, it is now a legal obligation of an appointing authority to cause such lists to be prepared and maintained up‑to‑date. It is very unfortunate that the seniority lists of the officers of the Secretariat Group, which was initially constituted on 21st February, 1975, should remain provisional till to date and should simultaneously be acted upon. It may not be out of place to mention here that "Foreword" to the 1981 list in its para. 4 says that `inclusion of a name in these‑ lists, by itself, does not amount to the validation of irregular appointment". What would be the position of an irregular appointee who is promoted to the higher post on the basis of a wrong position assigned to him in these lists? We leave it to the imagination of those who may be concerned with the administrative and financial aspects of the problem.
7. Adverting to the merits of the case we find that the most impor tant point for the purpose of disposal of this appeal is whether the appellant is entitled to count seniority in the gradation list of the Deputy Secretaries with reference to 1st November, 1974 when he was promoted and appointed as Officer on Special Duty or with reference to 24th October, 1978 when he was formally appointed as Deputy Secretary to the Federal Government. It is first to be seen that subsection (4) of section 8 of the Civil Servants Act, 1973, provides that seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. Para. 8 of the Establishment Division O: M. dated 12th April, 1976, whereby the Secretariat Group was reconstituted, also says that seniority of Deputy Secretaries in the Secretariat Group is to be determined from the date of continuous regular officiation as Deputy Secretary, or in a post in Grade‑19 whichever is earlier. The appellant's case is that the posts of Officer on Special Duty and Deputy Solicitor to which he was appointed prior to his formal appointment as Deputy Secretary to the Federal Government, carried the same pay scale as admissible to the Deputy Secretary and were, therefore, to be treated in Grade‑19; and since he was conti nuously officiating in Grade‑19 post of Officer on Special Duty/Deputy Solicitor/Deputy Secretary with effect from 1st November, 1974 on regular basis, he was entitled to count seniority from the same date. The Establishment Division conceded that the seniority of the Deputy Secretary is determined from the date of continuous regular officia tion as Deputy Secretary or to a post in Grade‑19 whichever is earlier but contended that the posts of Officer on Special Duty and Deputy Solicitor were not in Grade‑19 and, therefore, the appellant could not be given seniority from the date of his promotion as Deputy Solicitor. However, during the course of hearing Mr. A. H. Zuberi, Joint Secretary, representing the Establishment Division, conceded at the bar that if this Tribunal came to the conclusion that the posts of Officer on Special Duty,/Deputy Solicitor/Deputy Secretary carrying pay in Grade‑18 plus special pay of Rs. 440 were notionally in Grade‑19 or that the posts of Officer or Special Duty and Deputy Solicitor held by the appellant on his promotion were in the same grade as carried by the Deputy Secretary to the Federal Government then the appellant was entitled to count seniority from 1st November, 1974. Now, therefore, what remains to be determined is as to what was the status, and grade of the posts of the O. S. D. Deputy Solicitor. The appellant has explained by producing before us, the relevant Government orders contained in page 324 of the Estacode and Serial Nos. 9, 13 and 21 of section 11 of Compilation of Orders relating to the scheme of National Pay Scales which show that on the introduction of National Pay Scales the post of Deputy Secretary was placed in N. P. S. 19. Later on, as pay in N. P. S. 19 did not suit the promotee Deputy Secretaries, they were given the option to retain N. P. S. 18 plus a Special Pay of Rs. 440 p. m. Likewise, as N. P. S. 18 plus Special Pay of Rs. 440 did not suit the lateral entrance they were allowed to retain N. P. S. 19. The Representative of the Establishment Division conceded that some Deputy Secretaries have been drawing pay in N. P. S.‑19 while others in N. P. S. 18 plus Special pay of Rs. 440 p. m. Simply it is not conceivable that some of the posts of the Deputy Secretary could be in Grade‑19 while some others in Grade‑18 (plus Special Pay). The option to the incumbents to elect either N. P S. 19 or N. P. S. 18 plus Special Pay of Rs, 440 clearly shows zo9 15V01la~i`that the two were equal and quite obviously the or' in N. P. S. 19 could not be placed in Grade‑18. As a necessary corollary, therefore, the officers; drawing pay in N. P. S. 18 with Special Pay of Rs. 440 p. m. had to be t placed in Grade‑19. This view is further supported by the fact that the Establishment Division vide O. M. of 21st February, 1975 initially cons tituting the Secretariat Group itself conceded that posts of the Deputy Secretary would be deemed to be posts in Grade‑19. It was, however, argued by Mr. Zuberi that the concession had been omitted in the O. M of 12th April, 1976 and, therefore, could not be relied upon. This argument, on the face of it, is untenable. The O. M. of 21st February, 1975 remained operative uptil 11th April, 1976, which means that at least till then the post of Deputy Secretary was deemed to be in Grade‑19. With effect from 1st January, 1978 the post has been formally placed in Grade‑19 vide Finance Division O. M. dated 18th January, 1979. This being the position, we are not prepared to accept that during the period from 12th April, 1976 to 31st December, 1977 the posts had been downgraded to Grade‑18 despite the fact that the financial status of the posts remained unchanged and Deputy Secretaries continued to remain tagged with Grade‑19 officers for the purpose of seniority. 1n any case, such a down‑gradation could not be affected without the specific orders of the Government. It may be pertinent to mention here that Respondent No. 66, Mr. Muhammad Rafiq Asghar, who was a Deputy Secretary in the Ministry of Finance at the time of the hearing of appeal and has in the meanwhile been promoted as Joint Secretary in the same Ministry, supported the appellant's case; in this behalf. Although he was not officially representing the Ministry of Finance yet since he has been working in that Ministry for quite a some time and appeared to be a knowledgeable officer thoroughly well‑versed in the relevant rules and regulations, we are obliged to give due consideration to his opinion in this regard: -
8. The appellant further produced before us a copy of another letter, dated 12th July, 1973 of the Government which clearly shows that the post of the Officer on Special Duty (held by the appellant) was sanc tioned in the Law Division with the status of Deputy Secretary. Similarly the sanction letter, dated 20th April, 1960 shows that the post of Deputy Solicitor was sanctioned with the pay admissible to a Deputy Secretary. Yet another letter of the Law Division dated 12th February, 1975 shows that Mr. S. A. Nizami was appointed as Deputy Solicitor with the status of Deputy Secretary, while a D. O. letter of the Establishment Division, dated 29th December, 1966 speaks that "in view of the past practice the Central Selection Board had approved the proposal of grant of status of Deputy Secretary to Mr. A. F. S. Rehman while hold ing the appointment of Deputy Solicitor in the Law Division". Lastly but most pertinently para. 3 of the then Law Secretary's D. O. whereby the appellant's case for promotion was initiated is reproduced below with advantage: ‑
3 Mr. S. A. M. Wahidi is an experienced Section Officer in Grade‑18. He was promoted as Section Officer in the 2nd batch as a result of review of his case. He has been working as such since 1961 and has been in this Division as incharge of Solicitor's Section since June, 1970. He is the senior most Law graduate Section Officer in this Division. Solicitor and other officers of the Division have been speaking highly of him, and for whatever work I have seen of him, I am also of the opinion that he can acquit himself well if he is promoted as Deputy Solicitor (Deputy Secretary). In fact, his services were specifically asked for by my predecessor, Mr. Justice Qazi Muhammad Gul, from the Labour and Social Welfare Division, and it was with great reluctance that Division agreed to spare him for us. I would, therefore, strongly recommend that Mr. Wahidi may be promoted as Deputy Solicitor in the vacancy of Mr. Nizami."
9. We have noticed that the above proposal was considered by the Central Selection Board in its…
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