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Petitioner: ANWAR FAROOQ SADOZAI, RESEARCH OFFICER, NATIONAL EDUCATION AND TRAINING COMMISSION VS Respondent: THE CHAIRMAN, NATIONAL EDUCATION AND TRAINING COMMISSION, ISLAMABAD (NOW PMLC)
2002 P L C (C
2002 P L C (C.S.) 1184
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ
ANWAR FAROOQ SADOZAI, RESEARCH OFFICER, NATIONAL EDUCATION AND TRAINING COMMISSION, (NOW PMLC), ISLAMABAD
Versus
THE CHAIRMAN, NATIONAL EDUCATION AND TRAINING COMMISSION, ISLAMABAD (NOW PMLC) and 2 others
Civil Appeal No.79 of 1997, decided on 15th June, 2001.
(On appeal from judgment dated 31‑10‑1996 passed by the Federal Service Tribunal, Islamabad in Appeal No. 14‑P of 1993).
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Re appointment in service‑‑‑Petitioner and respondent were appointed in a project which was disbanded and for the new project senior most four persons were to be appointed‑‑‑Contentions of the petitioner were that no seniority list was issued by the Competent Authority at the time of disbandment of the project and, therefore, the order of appointment of respondent was based on erroneous assumption of facts and that in any case, the petitioner was senior to the respondent before disbandment of the project; that with the disbandment of the project, the petitioner was appointed afresh on merits as Research Officer with back benefits of his previous service, in view of his rich experience on a high post and length of service and that appointment was lawfully made by the Competent Authority .and, therefore, respondent had neither locus standi to challenge the appointment nor lie had acquired arty vested right to hold the office of Research Officer in place of the petitioner‑‑‑Leave to appeal was granted by Supreme. Court ~to consider the contentions of the petitioner.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Seniority‑‑‑Reappointment in service‑‑‑Disbandment of previous project and appointment in new project‑‑‑New appointment was made; on the basis of seniority list prepared during the previous project‑‑‑Dispute was with regard to the seniority of the parties‑‑‑Respondent was at Serial No. 17 and the appellant was at Serial No.20 of the seniority .position and the recommendations of the Selection Committee were approved according to the Notification fixing their inter se seniority‑‑‑Appellant was appointed .by the Authorities despite the fact that the respondent was senior in the list‑‑ Respondent filed appeal before Service Tribunal which was allowed and respondent was appointed in place of the petitioner‑‑‑Validity‑‑‑Service Tribunal was right in allowing the appeal of the respondent as he was a Serial No. 17 of the seniority list prepared while the appellant was at No.20 of the list‑‑‑Appellant had not denied determination of inter se seniority o1 the employees on 23‑7‑1985 and the same was not objected to by him at any time between the years 1985 and 1992‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal and appeal was dismissed.
Federation of Pakistan and others v. Rats. Khan 1993 SCMR 609 distinguished.
Ziaul Haq and others v. Secretary, Ministry of Education, Islamabad and others 1991 SCMR 1632: Federation of Pakistan through Secretary, Establishment. Islamabad and another v. B.A. Tabassum and 11 others 1995 SCMR 1229 and Abdul Hamid Khan v. Secretary, Establishment Division and others 1994 SCMR 543 ref.
Bashir Ahmed Ansari. Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellant.
Salahuddin Khan, Deputy Attorney‑General, Punjab on Court's Notice:
Nemo for Respondents Nos. l and 2.
Shah Abdur Rashid, Advocate Supreme Court with M.A. Zaidi. Advocate‑on‑Record for Respondent No.3.
Date of hearing: 15th June, 2001.
JUDGMENT
CH. MUHAMMAD ARIF, J.‑‑‑Relevant, facts and the question of law find detailed reference in the leave granting order dated. 1-2‑1997, which makes the, following reading:
This petition for leave to appeal under Article 212(3) of the Constitution of Islamic Republic of Pakistan is directed against the judgment dated 31‑10-1996 passed by the, Federal Service Tribunal, Islamabad.
2. The facts, in brief, are that the petitioner and respondent No. 3 were appointed as Research Officers in Literacy and Mass Education Commission (hereinafter referred to as LAMEC). A development project known as National Literacy programme was sponsored by LAMEC in 1985 and certain appointments were made for running the project. The staff working in the National Literacy Programme was absorbed, in Nai Roshni Schools Project. However, on the disbandment of Nai. Roshni School Project on 30‑6‑1989, all the project posts were abolished except recurring permanent pops of LAMEC which included four posts of Research officer 1BPS47). It was alleged by respondent No. 3 that these posts were allowed‑to be occupied by the senior most tour persons then available according to inter se seniority list of 23‑7‑1985. However, contrary to the said list the petitioner who was junior, to respondent No.3 was reinstated as Research Officer. Being unsuccessful in the departmental representation, respondent No.3 preferred an appeal before the Federal Service Tribunal which dismissed his appeal on the ground that, he was not a civil servant. This Court by order dated 16‑6‑1996. passed, in Civil Appeal No.840 of 1993, set aside the said order of the Tribunal and remanded the case to the Federal Service Tribunal for decision afresh on merits. In consequence, the Federal Service Tribunal vide impugned ardor accepted the appeal of respondent No.3 and declaring him senior to the petitioner directed the respondent Department to reinstate him in place of the petitioner being senior to him with all back benefits.
3. Learned counsel for the petitioner contended that no seniority list was issued by the competent Authority at the time of disbandment of the project and, therefore, the impugned order is based on erroneous assumption of facts and that in any case, the petitioner was senior to respondent No.3, as Research Officer before disbandment of the project. It was next contended that with the disbandment of the Nai Roshni Schools Project, the petitioner was appointed afresh on merits as Research Officer, with back benefits of his previous service in view of his rich experience on a high post like Resident Director of N.W.F.P. and length of service. His appointment was lawful having been made by the competent A Authority and, therefore respondent No.3 had neither locus standi to challenge it nor he had acquired any vested right to hold the office of Research Officer in place of the petitioner.
4. Leave to appeal is granted to consider the above points.
5. Status quo order granted on 2‑12‑1996 shall continue till the final decision of the appeal. Needless to observe that mere pendency of this appeal shall not debar the competent Authority to consider the case of respondent No. 3 for fresh appointment/adjustment against any equivalent vacant post on merits and in accordance with law."
2. Mr. Bashir Ahmed Ansari learned Advocate Supreme Court appearing in support of this appeal has vehemently contended that as respondent‑Fazali Rehman had taken the charge of one of the posts of Research Officers (BPS‑17) on 17‑8‑.1985 admittedly after 2‑days of his client having done so on 15‑8‑1985, the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) was in error in not considering the above facet of the case while accepting Appeal No. l4‑P of 1993 brought by respondent Fazali Rehman. According to him, even re‑determination of the disputed seniority position of the private parties herein (and other employees) on 27‑11‑1991 has not been given .due weight throughout the proceedings at all levels. He sought support from .Federation of Pakistan and others v. Rais Khan (1993 SCMR 609) wherein it was held that seniority in a post. Service or cadre to which a civil servant is promoted would take .effect from the date of regular appointment to that post and that for purposes of seniority in a particular grade, regular appointment is the determining factor. He concluded his arguments by making a reference to pp. 43‑44, being hand‑written seniority position of as many as 24 persons as below:
On the recommendation of the Selection Committee, approval is hereby accorded under clauses 4 (1) and 4 (3) of Notification dated 19‑4‑1984 to the appointment, on temporary basis, of following persons‑ in BS‑17 as Assistant Directors/ Research Officers/... Field Officers in LAMEC. The list also fixes their inter se seniority:‑‑‑
1. Mrs. Rozina Shamirn Akhtar 2. Liaqat Munir 3. Syed Umar Hayat 4. Melvin (check spelling (sic)) Hashim Din 5. Zafar Iqbal Tabish 6. Mulazam Hussain Mujahid 7. Mrs. Rashida N. Aslam 8. Muhammad Sarwar 9. Waseem Akhtar 10. Hafiz Muhammad Sharif 11. Shahid Mahmud 12. M. Ayub 13. Miss Rahila Ikram 14. Mrs. Razia Shati 15. Muzar Hussain Cumhro 16. Muhammad Arif 17. Fazli Rehman 18. Sadaqat Ali Beg 19. Syed Ratif Shah 20. Anwar Farooq Sadozai 21. Shfahbaz Khan 22. Irshad Ahmed Memon 23. Qazi Atiqur Zaman 24. Muhammad Daood
(Sd.) 23‑7‑1985. "
and contended that the dates of joining by the appellant and the private respondent (appellant before the Tribunal) were neither mentioned in the list nor brought to bear upon the facts and circumstances of the case in the Light of the observations of this Court in Rais Khan (supra).
3. Contrarily, Mr. Shah Abdur Rashid, learned Advocate Supreme Court appearing on behalf of respondent Fazali Rehman has supported the impugned judgment of the Tribunal to the effect that all the employees having been appointed with effect from 15‑8‑1985, their inter se seniority was rightly determined by CSB in BPS‑17 as Research Officers in Literacy and Mass Education Commission. LAMEC for short. He referred to Ziaul Haq and others v. Secretary, Ministry of Education. Islamabad and others (1991 SCMR 1632), Federation of Pakistan through Secretary, Establishment, Islamabad and another v. B.A. Tabassum and I I others (1995 SCMR 12291 and Abdul Hamid Khan v. Secretary. Establishment Division and others (1994 SCMR 543) to contend that assignment of seniority to civil servants in earlier list having not been challenged by any of the civil servants shown junior to his client, the "...Authority after lapse of about three years revising such list and assigning seniority‑to one of those civil servants who was shown junior to (him)", could not be ignored by the Tribunal in reaching" .... the conclusion that seniority assigned ... in earlier list could not be revised after so many years specially in absence of representation against the same." B.A. Tabassum (supra).
4. Mr. Salahud Din Khan, learned Dy. A.‑G. appearing on behalf of the official‑respondents has supported Mr. Bashir Ahmed Ansari.
5. We have considered the arguments addressed at the Bar and have also been taken through the available material by the learned counsel of the parties and the learned Law Officer. A perusal of the handwritten order dated 23‑7‑1985 clearly brings it to the fore, that respondent‑ Fazali Rehman was at Serial No. 17 and the appellant at Serial No.20 the seniority position and that the recommendations of the Selection Committee were approved under sub -clauses (1) and (3) of clause (4) of Notification dated 19‑4‑1984 fixing their inter se seniority as above. The Tribunal was quite right in allowing the appeal of respondent‑Fazali Rehman vide the impugned judgment dated 31‑10‑1996.
6. Further, it is not even so much as denied on behalf of the appellant that the determination of 'inter se seniority of the employees on 23‑7‑1985 was not objected to by him at any time between the years‑1985 and 1992. The reliance placed by Mr. Ansari on Rais Khan (supra) pales out in significance when the same is considered in juxtaposition with the following observations of this Court in B.A. Tabassum (supra):
"Respondent No. 1 (B.A. Tabassum) was assigned seniority at Serial, No.5 in the seniority list which was issued by the Department in the year 1990. The learned Service Tribunal came to the conclusion that the seniority list issued by the Department was a final list against which no representation was made by any officer who were shown junior to respondent No. 1. However, the said list was revised by the Department at its own in 1993 and in the comments filed before the learned Tribunal the Department took up the position that while determining the seniority of respondent No. 1 in the list of BPS‑19 Officers a mistake was committed whereby seniority of another officer of that grade namely, Mukhtar Ahmed Zahid, was overlooked. It was also mentioned in the comments that there was some irregularity in the promotion of respondent No. 1 from Grade‑16 to Grade‑17 and from Grade‑17 to 18, which was not noticed at the time of assigning seniority at Serial No.5 of the list issued in 1990. The learned counsel for the petitioners is unable to point out from the record before us any .representation made by any of the officers shown junior to respondent No. l in the gradation list of 1990 against assignment of seniority to respondent No. 1 at Serial No.5 of the said list. The learned Tribunal, therefore, rightly reached in the conclusion that in the absence of representation against the assignment of seniority to respondent No. 1 in the seniority list of 1990, the seniority of respondent No. l could not be revised by the petitioners after lapse of about 3 years. We may also mention here that Muhammad Afzal Safvi who was one of the respondents before the Service Tribunal has also tiled Civil Petition No.317 of 1994, challenging the order of Tribunal, mentioned above and has supported the petition .tiled by the Government. He also contends that the assignment of seniority to respondent No. l in the gradation list of 1990 was wrong as he was senior to respondent No. 1 while he was shown junior to him. However, when we enquired from Mr. Afzal whether he tiled any representation against the seniority list issued by .the petitioners in 1990, he admitted that he preferred no representation against the seniority list issued in 1990 in which he was shown junior to respondent No. 1.
7. Resultantly, the appeal fails and is hereby dismissed with costs.
Q.M.H./M.A.K./A‑193/S Appeal dismissed.