' MUHAMMAD NAWAZ ABBASI, J.---Civil Appeals Nos. 1504 of 1999, 1762 and 1763 of 2001 by leave of Court are directed against the judgments of the Federal Service Tribunal, dated 20-3-1999 and 21- 6-2000 and the same involving common question of law and facts are proposed to be disposed of through this single Judgment.
2. Civil Appeal No, 1504 of 1999 has been filed by Syn. Leader Farooq Janjua against the judgment, dated 20-3-1999 in Service Appeal No,694(R)!1998 whereas Civil Appeals Nos. 1762 and 1763 of 2001 have been filed by Jahangir M. Khan against the judgment, dated 21-6-2000 in Service Appeals No, 503(K) and 776(K) of 1998 involving the question of seniority and promotion respectively.
3. The brief facts giving rise to Civil Appeal No,1504 of 1999 are that appellant namely Squadron Leader Farooq Janjua while he was Flight Lieutenant in Pakistan Air Force was sent to Civil Aviation Authority as Senior Air Traffic Control Officer (PG-IX) on deputation on 29-5-1985 and subsequently was 'permanently absorbed in CAA w,e,f, 6-10-1990. The terms and conditions of the service of the appellant on his absorption in the CAA would be governed by CAA service regulations. In the year 1992 he was posted as Senior Facilitation/Vigilance Officer but later he was again posted as Senior Air Traffic Control Officer. The appellant sought his induction in CAA from the date when he joined the said organization on deputation through representation and on its rejection filed an appeal before the Federal Service Tribunal, which was dismissed through the impugned judgment with the observation that appellant was inducted in CAA on permanent basis w,e,f, 2-9-1990 on his retirement from Pakistan Air Force on 1-9-1990 with all pensionary benefits and that he could not claim the benefit of provision of Sl. No, 106 of the Estacode which would applicable only to the army officers who were inducted in the civil service on permanent basis prior to the promulgation policy, dated 10-2-1980 whereas the appellant was inducted w,e,f, 2-9-1990 after he was retired from Pakistan Air Force. Leave was granted by this Court in the following terms:- "Learned counsel for the petitioner contended that the petitioner was entitled to be given the seniority i,e, 29th of May, 1985, the date on which he was sent on deputation to join the Civil Aviation Authority (CAA). He has relied upon the rule laid down in Mehr Sher Muhammad and others v.
Federation of Pakistan (1999 SCM R 185).
(2) Mr. Mansoor Ahmad Khan, learned Deputy Attorney General and Mr. Fazal Ellahi Siddique, learned counsel for respondents oppose the petition and state that the petitioner has rightly been given the seniority from 2nd September, 1990 the date of his actual induction in Civil Aviation Authority and not from 29th of May, 1985, the date on which he started officiating on the post of SATCO'. They reply upon S.M. Farooq and others v. Muhammad Yar Khan and others (1999 SCM R 1039) in support of their plea.
(3) After hearing the learned counsel for the parties, we grant leave to appeal to consider whether or not the petitioner was entitled to the grant of seniority from the date on which he started officiating against the post of Senior Air Traffic Control Officer (SATCO) in Civil Aviation Authority on transfer from Pakistan Air Force. The appeal shall be set down for its hearing as early as possible because a short point is involved in it."
4. In Civil Appeals Nos.1762 and 1763 of 2001 the appellant namely Sq. Ldr Jehangir M. Khan was sent on deputation to Civil Aviation Authority as Corporate Manager initially for a period of two years w,e,f, 13-5-1985 which was extended for another period of 3 years. Meanwhile the appellant was promoted to the rank of Wing Commander in Pakistan Air Force and he was re-designated as Manager ATS Hqs CAA without any additional benefit. The competent authority considered the request of the appellant for permanent absorption in CAA on his retirement from PAF on 1-9-1990 and he was appointed on contract as Corporate Manager ATS (PG-IX). However, the appellant made successive representation for permanent absorption in CAA in PG-X from the date of his contract in terms of provision at SI. No,105 of the ESTACODE 1989 and the competent authority having considered the request of the appellant appointed him on regular basis w,e,f, 2-9-1990 vide letter, dated 6-11-1994 as a result of which the appellant joined as General Manager (PG-X) with all service benefits w.e.f 2-9-1990 and he was also placed at senior position to the private respondents in the provisional seniority list. The private respondents filed a representation claiming themselves senior to the appellant on the ground that he initially having been appointed on contract basis could not be subsequently treated a regular employee from the date of his appointment on contract and in any case could not be given seniority to the employees who joined service on regular basis before the date of his regular appointment. The grievance of the respondent was that notwithstanding the absorption of the appellant w.e.f 2-9-1990, the seniority of the employees of the organization would be determined in accordance with CAA regulations and according to the said regulation they were senior. The representation of the private respondents succeeded and appellant preferred an appeal before the Federal Service Tribunal which was dismissed vide impugned judgment. Leave was granted in this appeal vide order, dated 10-8-2001 in the following terms: "By this common order we propose to dispose of Civil Petitions Nos. 425-K and 426-K of 2000 as they involve identical questions of law and facts.
(2) Resume of the case is that the petitioner was taken by respondent No,1 on deputation from 13- 5-1985 which period was extended for further three years. During said period, the petitioner was promoted from Sq. Leader to Wing Commander, therefore, his designation was re-designated from Corporate Manager, ATA to Manager, ATS i,e, 5th of September, 1987. Thereafter on his request and corresponding understanding given by the respondent for his permanent absorption, the Air Headquarter issued order of his premature retirement w,e,f, 1-9-1990. After his retirement from PAF, the respondent changed his status from deputation to contract and reverted him from Manager, ATS to Corporate Manger i,e, 2-9-1990. The petitioner filed representations, dated 15-12-1992, 25-7- 1993 and 24-4-1994 for his permanent absorption in pay group No,X i,e, 2-9-1990 in terms of para. 19 and 29 of Part-IV of Serial No, 105 "Induction/re-employment of Officers of Armed Forces of Pakistan in Civil Posts" (Estacode 1989 pages 167-168). The competent authority, on his representation, approved his permanent employment i,e, 2-9-1990, vide order, dated 22-11-1994.
His seniority was fixed i,e, 2-9-1990. The respondents Nos.3 to 6 made representation and claimed seniority over the petitioner, as a consequence of which, the departmental authority issued orders, dated 11-2-1996 and 18-2-1996 without issuing notice and affording any opportunity of hearing to the petitioner. The petitioner filed departmental appeal on 14-3-1997 and thereafter approached the Civil Court, who on insertion of section 2-A in the Service Tribunals Act, 1973 returned the plaint.
Thereafter, he filed Appeal No, 214-K of 1997 before the Federal Service Tribunal, Karachi which was dismissed on 1-11-1997 as being not competent, which decision was not challenged by the petitioner before this Court. The petitioner then filed Appeal No, 503-K of 1998, which has been dismissed by the Tribunal vide judgment, dated 21-6-2000, impugned in Civil Petition No,425-K of 2000.
(3) On 21-1-1998, the respondent promoted respondent No,3 from PG-IX to PG-X. Feeling aggrieved, he filed Appeal No,776-K of 1998, which has also been dismissed vide separate judgment of the Tribunal of even date, impugned in Civil Petition No,426-K of 2000.
(4) After hearing the petitioner in person and the learned counsel for the respondents, we grant leave to appeal, inter alia to consider the following points:--
(i) whether the appeal of the petitioner before the Service Tribunal was maintainable when firstly, no departmental appeal/ representation against the order impugned before the Tribunal was filed and secondly his earlier appeal was dismissed by the Tribunal and no appeal was filed thereagainst which, as such, attained finality?
(ii) whether seniority of the petitioner is to be reckoned from the date he was employed on contract basis i,e, 2-9-1990 or from the date he was absorbed in Civil Aviation Authority i,e, 22-11- 1994, and whether contract period of his service could be counted for his retrospective promotion?
(iii) whether the petitioner after his promotion to pay group X could be reverted back to pay group- IX without affording him any opportunity of hearing?
Leave in identical matter has already been granted in Civil Petition No,843 of 1999. Office is directed to fix all the appeals together as early as possible because short point is involved therein as observed in the earlier leave granting order."
5. Learned counsel for the appellant in Civil Appeal No,1504 of 1999 contends that notwithstanding the formal retirement of appellant from Pakistan Air Force, he would deem to be inducted in CAA w,e,f, 29-5-1985 when he initially joined the organization on deputation. The learned counsel submitted that the policy contained in provision at Serial No,106 of ESTACODE 1989 would be applicable to an army officer who was sent on deputation in civil department and was subsequently absorbed on permanent basis, therefore, the view taken by the Tribunal that the provision was applicable only to those army officers who were inducted on permanent basis in the civil department prior to the promulgation of induction policy 1980 was in conflict to the correct legal position.
6. We having heard the learned counsel for the appellant and gone through the relevant provision at Serial No, 106 of Estacode, 1989 and also the view taken by the Tribunal find that appellant was not entitled to the grant of seniority from the date of his joining CAA as Senior Air Traffic Control Officer on deputation. The case of the appellant being of distinguishable feature cannot be decided in the light of judgment in Mehr Sher Muhammad and others v. Federation of Pakistan (1999 SCM R 185) on the strength of which he claimed seniority. It was observed in the above judgment as under:-- "It may be seen that crucial point requiring determination revolves around, the date when inductees/deputationists could be entitled to seniority. There is no doubt that twenty contesting deputationists were transferred from their respective departments in public interest. They undenyingly have been continuously performing functions in the different sections of Federal Secretariat, since their respective posting in pursuance of initial transfer. The record manifestly discloses that competent authority considering the working capability of deputationists and for maintaining proficiency in the respective departments had sought their consent for retention in Office Management Group. It is the stand of deputationists that "Forward" to O.M. No,7/12/81-C, H- I(B)/0MG-H, dated 4-11-1985 which regulated method of assigning seniority to the officers of various grades serving on deputation in the Federal Secretariat; which was later affirmed in the shape of Notification No,8/17/90-0MG-I, dated 28-1-1991 held the field when their consent was sought and no other rules in that behalf existed till then.
(13) We may, however, mention here that the Government retains plenary authority to make rules in the interest of efficiency of service. Therefore, deputationists who have been already performing functions in B-17 or B-18 of Office Management Group to the entire satisfaction of their superiors; after permanent absorption in said Group obviously became *entitled to be regulated for purposes of seniority under the prevalent procedure, instructions and rules. Needless to say that special procedure or rules contained in O.M. Dated 28-1-1991 would regulate seniority of inductee/deputationists in the absence of any specific rules or general provisions."
7. The appellant was admittedly retired from Pakistan Air Force w,e,f, 1-9-1990 with all pensionary benefits and was appointed in CAA on 2-9-1990, therefore, for all practical purposes he would be deemed to be appointed in CAA from the date of his induction without taking the benefit of the period of his deputation in the CAA. It was held in S.M. Farooq and others v. Muhammad Yar Khan 1999 SCM R 1039 as under:-- "(12). In the background of legal and factual aspects and adverting to real controversy it may be seen that Notification, dated 8th August, 1995 unambiguously disclosed status of respondent Yar Muhammad Khan being-surplus and his consequential absorption as Deputy Controller (BPS-18) in the Department of Tourist Services. Obviously in pursuance of above Notification said respondent had assumed duty without any protest. Therefore, his seniority was properly fixed keeping in view provisions of rule 3(3) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 as amended and instructions issued by the Establishment Division regarding absorption of surplus employees. Besides rule 4 of Civil Servants Seniority Rules, 1993 promulgated by Notification S.R.O.
(1)/93, dated 28th February, 1993 lays down that seniority in service, cadre or post, by transfer shall take effect from the date of regular appointment ,of civil servant to said service, cadre, or post.
Therefore, necessary corollary would be that such civil servant on his appointment by transfer would rank junior to those who were already serving in permanent capacity in the same grade. This is in consonance with principle of justice and fairplay because service rights of employees in the absence of any rules cannot be normally affected by outside introduction. The respondent No,1 Muhammad Yar Khan till date of his absorption continued to be member of his parent service or cadre. Therefore, unless transferred and absorbed on account of conscription; the seniority of above respondent in Tourist Services Department had to be reckoned from the date of his regular appointment against permanent post. It may be mentioned here that respondent No,1 had option to refuse and in such eventuality, he would be entitled to seniority reckoned in the parent department.
(14) Thus on the careful analysis of all aspects we feel inclined to hold that learned Federal Service Tribunal in allowing the appeal filed by respondent has completely misconstrued the legal position and overlooked the relevant service rules therefore, conclusions drawn in the impugned judgment suffer from material defects. Additionally, the Tribunal while deciding the appeal has based findings on presumptive suppositions and perceptions extraneous to record which is not permissible. Therefore, impugned judgment deserves to be struck down."
8. In the light of the foregoing discussion this appeal fails and the same is accordingly dismissed.
The parties to bear their own costs.
9. The appellant in person in Civil Appeals Nos.1762 and 1763 of 2001 contends that he having been made permanent employee of CAA w.e.f 2-9-1990 was rightly given seniority from the said date but on the representation of the respondents his seniority was disturbed vide order, dated 11-2-1996 and 18-2-1996 without issuing notice and providing an opportunity of hearing to him and that his appeal before the Service Tribunal was dismissed without considering the matter in proper manner. We having gone through the record find that the Tribunal after discussing the question relating to maintainability of appeal filed by the appellant held that the service appeal without availing the remedy of departmental appeal was not maintainable and consequently dismissed the same being incompetent and also barred by time. While dealing the appeal on merits the Tribunal has observed that on the expiry of deputation period in CAA the appellant was employed on contract basis and subsequently was absorbed on permanent basis from the date of his appointment on contract but he could not claim seniority from previous date against the employees who were appointed on permanent basis before he was made permanent.
10. We having heard the appellant in person at length have thoroughly considered the point raised by him in support of the appeal. We find that appellant voluntarily accepted the offer of appointment on contract and subsequently on representation he was absorbed on permanent basis, therefore, the period of his contract despite having been treated as part of his regular service, he would not be entitled to he given seniority over the employees who were appointed on permanent basis during the period when he was on contract. The regular appointment from retrospective date with the grant of pay and allowances to the appellant would not make him senior to his colleagues who joined service on permanent basis before he joined. We have not been able to find out any illegality in the judgment of the Tribunal and further no question of public importance is involved in the present case for interference of this Court.
11. For the foregoing reasons these appeals having no merits are dismissed. The parties are left to bear their own costs.