' M. JAVED BUTTAR. J.--- The petitioner Mian Abdul Qadeer, former. Chief. Manager, House Building Finance Corporation, Zonal Office, Multan through this petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, is seeking leave to appeal against the judgment, dated 5-5-2003 passed by Federal Service Tribunal,. Islamabad, whereby petitioner's appeal (No,1657(K)/CE/ 2001), under section 4 read with section 2-A of the Service Tribunals Act, 1973, against the order, dated 27-8-2001 of the petitioner's dismissal from service, passed by respondent No,2 under section 3 of the Removal from Service (Special Powers) Ordinance 2000, as amended, was dismissed.
2. The relevant facts are that the petitioner joined the above said Organization directly as Assistant Manager on 19-2-1983. He was promoted as Manager in the year 1995 and as Chief Manager on 11- 2-1999, on the recommendation of the Selection Board of the said Corporation. Later, he was promoted as General Manager on acting charge basis on 21-7-1999. After about 8/9 months of his appointment in the year 1983, a batch of Superintendents was promoted (in the same calendar year) to the posts of Assistant Managers. In terms of House Building Finance Corporation's Service Regulation No,15, the petitioner was accorded seniority with effect from his date of appointment i,e, 19-2-1983 and the promotees were given seniority from the dates of their regular promotion. The petitioner was thus accorded seniority over the promotees. In the seniority list prepared in the years 1983, 1985 and 1989, the petitioner was ranked senior to the promotees. The said seniority list remained unchallenged till the year 1989 when such promoted Superintendents represented against the seniority list and asked for their seniority over the direct appointees in the same calendar year i,e, 1983. Their plea was accepted by the Management; the seniority list was accordingly changed and was notified on 10-2-1990. The petitioner having been adversely affected filed departmental representation on 18-10-1990, which was rejected on 2-4-1992. He continued to represent his case for a number of years and finally his appeal/representation was accepted in the year 1998 and he was accorded seniority over the promotees, with effect from 19-2-1983. Sometime in the said period, on the desire of respondent No,2, the petitioner was transferred to Head Office, Karachi and was posted in the Personnel Branch. He was also given, as mentioned above, the acting charge of the post of General Manager by the competent authority on 21-7-1999. On the basis of audit report that the petitioner's representation for his seniority over promotees was not acceptable, he was suspended from service vide Office Order No,128, dated 7-2-2001 and was issued a Charge-sheet on 19-3-2001 with the statement of allegations, which are as follows:--- "(a) Audit is of the view that the Officer was appointed in 1983 whereas the issue of seniority raised in October, 1990 i,e, after about more than 7 years when the representation time has since been barred i,e, should have been initiated within one year from the date of appointment. As such, the representation dated 18-10-1990 was not acceptable.
(b) When, once the appeal of Mian Abdul Qadeer, a direct appointee of 1983, stands rejected by the Management on 2-4-1992, what was the justification for reopening of the case in August 1998 i,e, again elapse of more than 6 years as there was neither any legal scope nor there was any binding under the rules for this reviewal.
(c) Why the seniority list was changed without the approval of competent authority and without into lime-light the opinion offered by the Legal Advisor (Services) Mr. Baqar Ali Khan on 25-8-1998 to the competent authority.
(d) What were the ulterior motives behind changing the seniority list? Was it just to upgrade the direct appointees of 1983 to that of the promotees of 1983?
(e) Why and on what grounds the seniority of other two Officers was changed the reason thereof may also be intimated?
(1) The illegal and unauthorized change 'in the seniority list be got rectified immediately and any advantage gained by virtue of this by the direct recruitees of 1983 in terms of seniority and Promotion be set aside with proper investigation under intimation to audit.
(g) The delinquent who has committed the act of tampering in seniority list be taken to task under Government Servants (Efficiency and Discipline) Rules, 1983 as this act does fall within the meaning of "gross misconduct".
' The petitioner was asked to submit written defence. The respondent No,(sic) constituted a three Member, Inquiry Committee comprising a General-Manager, a General-Manager, Zonal Office, Karachi and an Acting General-Manager, Zonal Office, Lahore. The petitioner, after receipt of the charge-sheet, submitted an application on 24-3-2001, to the Chairman Inquiry Committee of the Corporation, requesting the supply of the relevant record/documents and after failing to receive any response, he submitted an interim written defence to the charge-sheet. Finally, on receipt of relevant documents, written defence to the charge-sheet, was filed on 30-4-2001. The Inquiry Committee, after deliberations, found the petitioner guilty of the allegations. He was then issued a show-cause notice, dated 25-7-2001 along with a copy of inquiry report but without Annexures. The petitioner, requested for the supply of relevant documents and on the receipt of the same, he submitted his reply to the show-cause notice on 17-8-2001. Thereafter, he was dismissed from service by respondent No,2 vide order dated 27-8-2001. However, no opportunity of personal hearing was granted to the petitioner. The petitioner filed his departmental appeal, under section 9 of the said Ordinance, on 11-9-2001 and finding no response within the prescribed statutory period, filed the appeal before the Tribunal, which as mentioned above, was dismissed on 5-5-2003. The concluding paragraphs of the impugned judgment, for the sake of convenience are reproduced below:--- "(7) The proceedings against the appellant were initiated due to the seniority, dispute which arose between the direct recruits and the departmental promotees. It would, therefore, be appropriate to discuss the basic issue of the entire case, that is, whether the departmentally promoted Officers rank senior to the direct appointees appointed in the same calendar year. It will be recalled that the appellant was directly appointed as Assistant Manager in 1983 along with ten other people.
Later in the same calendar year, a batch of departmental Superintendents was also promoted as Assistant Managers. The direct appointees including the appellant continued to be shown as senior to the departmental promotees in Seniority lists issued from time to time i,e, in 1983, 1985 and 1989.
It was in 1989 i,e, after a lapse of five years that one of the Departmental promotees filed a representation against the directly recruited Assistant Managers to claim seniority over them. This representation was accepted in the light of rule 6 of the Civil Servants Seniority Rules, 1973 which inter alias lays down as under:-
(6) Inter se seniority of civil servants appointed in the same calendar year. ---Persons appointed by transfer in a particular calendar year shall, as a class, be senior to those appointed by promotion or by initial appointment to such posts in that year, and persons promoted to higher posts in a particular calendar year shall, as a class, be senior to those appointed by initial appointment to such posts in that year".
' Accordingly, the Revised Seniority List was issued on 10-2-1999 and objections were invited. Out of eleven direct recruits only two represented against the said List including the appellant. Their representations were considered and rightly rejected by the competent Appellate Authority in 1992.
There were neither any representations by the appellant and nor did he approach any legal forum against rejection of his appeal. The revised Seniority List circulated remained in field unchallenged till 1998 and attained finality. The seniority status of the direct recruits vis-a-vis departmental promotees was legal and in accordance with the rules.
(8) After eight years, when the appellant was transferred to the HBFC's Head Office and posted in the Personnel Department, he reactivated his already decided issue of seniority without regard to the law of limitation. He has not bothered to challenge the revised seniority list issued in 1990 in any legal forum after his representation was rejected. The seniority issue could not be reopened after eight years but he connived with one of his colleagues and manipulated the restoration of his seniority with effect from his date of appointment in 1983 by concealing the material facts and also bypassing the Deputy Managing Director of the HBFC and also secured his promotion. These illegal manipulations came to light during the course of audit. Respondent initiated the disciplinary proceedings against the appellant by the issue of the charge-sheet which contained as many as ten allegations most of which were proved by the duly constituted Inquiry Committee. After reading the Inquiry report, we find no merit in the appellant's averments that the Inquiry Committee acted with bias or malice against him. There is also no merit in the contention of the appellant that the audit objections cannot be made the basis of disciplinary proceedings. The irregularities pointed out by the audit do require proper investigation and appropriate action against the erring officials. Adverting to the conduct of the appellant on his posting in the Personnel Department of the HBFC, it transpires as mentioned earlier, that he reopened the decided case of seniority after a.
Lapse of eight years and colluded with his colleague, concealed material facts and bypassed the prescribed route and got his seniority restored. These actions indicate the appellant's dishonesty, misuses and abuse of the official position which deserves severest action as his conduct was not conducive to good office discipline and was also illegal and violation of rules. Appellant has not substantiated his contention that the Managing Director was not competent to issue charge-sheet.
However, HBFC's Circular No,(05-303) PSD/CC/2000/565, dated 18-11-2000 indicates that the Managing Director was competent to exercise powers of Authority for holders of post in BS-16 to 19 i,e, General-Manger, Chief Managers, Managers and Assistant Managers. As regards appellant's contention that he was not given personal hearing, the record shows that the, appellant was issued a letter, dated 28-7-2001 to appear for personal hearing and, as such, appellant has misstated facts. We are also not impressed by the appellant's contention that he was discriminated vis-a-vis Mr. Khalid Mehmood. The record does not indicate any misdoing by Mr. Khalid Mehmood and it was the appellant who re-activated the closed issue of seniority without regard to limitation. The rulings cited by the appellant do not support him as we do not find any infirmity in the proceedings against the appellant.
' In view of the above facts, the appeal being without merit is dismissed."
3. In nutshell, it was held that the revised seniority list issued on 10-2-1990 in the light of the rule 6 of Civil Servants Seniority Rules; 1993, (reproduced above) recognizing the seniority of departmental promotees over the direct recruits, was legal and in accordance with rules and having remained unchallenged till 1998 had attained finality, that the seniority issue could not be opened after 8 years and in this regard the petitioner connived with one of his colleagues and manipulated the restoration of his seniority with effect from his date of appointment in 1983 by concealing the material facts, that the inquiry report was without any bias or malice, that in getting his semority restored, the petitioner bypassed the prescribed route, that these actions indicate that the petitioner dishonestly misused and abused an official position and that his conduct was not conducive to good office discipline, it was illegal and in violation of rules.
4. We have heard the learned counsel for the parties and have also seen the relevant record.
5. It is submitted by the learned counsel for the petitioner that the proceedings against the petitioner were initiated due to personal grudge, bias and malice of his colleagues, that the charge of making representations could not be made basis for initiating the disciplinary proceedings against him, that the entire proceedings are based merely on the audit report,, that the seniority, according to Regulation No,15 of the HBFC Service Regulations, 1957, framed by the Board of the Corporation, in exercise of the powers conferred by clauses (j) and (h) of subsection (2) of section 42 of the HBFC Act, 1952 (XVIII of 1952), with the previous sanction of Central Government, was to be assigned from the date of confirmation and since the petitioner had been appointed on regular basis, his seniority will be counted from that date and he cannot be relegated below the promotees, who were promoted 8 months after the petitioner's appointed, that the inference drawn by the Tribunal that the representation of the promotees was accepted in the light of rule 6 of the Civil Servant (Seniority) Rules, 1993 (wrongly written as 1973 in the impugned judgment) is against the law as the promotees seniority was determined in 1989 when the above said seniority Rules were not in existence, that petitioner was condemned unheard as he was not afforded a personal hearing (reliance has been placed on Abdul Aziz Khan v. The Postmaster General, Southern Punjab Circle, Lahore 2000 PSC 1248 and Inspector General of Police, AJ&K etc. v. Zaheer- ud-Din Qureshi 2002 PLC (C.S.) 1246, that the Authority which passed the order of dismissal had become functus officio on 21-8-2001 when his transfer was ordered and he could not perform the duties as M.D. On the said date when he passed the dismissal order (reliance has been placed on PLD 1978 SC 1, 1991 SCMR 311 and Agricultural Development Bank of Pakistan v. Muhammad Anwar Bajwa and others 1994 SCMR 852) that the inquiry committee recommended for the penalty of demotion, whereas the competent authority without recording any reason dismissed the petitioner from service in violation of provisions of section 24-A of the General Clause Act (reliance has been placed on Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330, WAPDA v. Muhammad Riaz Butt, Ex. LS-II 1993 SCMR 1134 and Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Sherwani 1996 SCMR 248, that it is apparent from para. 14 of the inquiry report that the charge of gross misconduct had not been proved, that the order of the Tribunal is based on surmises and conjectures, that the letter, dated 27-8-2002 for granting personal hearing was not issued to the petitioner but to another person and that the orders of dismissal of petitioner from service are not legal and the Tribunal illegally acted in not accepting the petitioner's appeal.
6. The contentions have been opposed and the learned counsel representing the respondents have opposed the petition and have submitted that the entire proceedings against the petitioner were conducted strictly in accordance with the rules and regulations of the organization and that this petition has no merit.
7. Our reading of the record, the order of dismissal and the impugned judgment is that at the most it was a case of irregular promotion of the petitioner and the petitioner has been victimized merely because he kept on representing repeatedly against the rejection of his representation in regard to the revised seniority list issued by the competent Authority in 1992. No misconduct on the part of the petitioner was proved. Mere repeated representations would not amount to a misconduct on the part of a civil servant warranting extreme penalty of dismissal from service. The so-called illegal manipulations on the part of the petitioner have not been proved. Merely the fact that the petitioner kept on representing against the same and got his seniority restored in the year 1998 with effect from the date of his appointment i,e, 19-2-1983, cannot lead to the conclusion that the petitioner is guilty of gross misconduct, collusion and illegal manipulations. The so-called collusive colleagues of the Competent Authority which restored the petitioner's seniority in the year 1998 were never proceeded against under the Efficiency and Disciplinary Rules. No evidence has surfaced for establishing misconduct and manipulations. Similarly there was no charge of any embezzlement, fraud, corruption and forgery not the same were ever proved against the petitioner.
8. It is, however, our view that Revised Seniority List issued on 10-2-1990 had attained finality because the petitioner's representation against the same was rejected by the Appellate Authority on 2-4-1992, which order was not set aside or modified by any higher competent Executive Authority and was not assailed before any competent judicial forum. The issue of seniority had therefore, become past and closed.
9. In view of the above-mentioned, this petition is converted into an appeal and is accepted, the impugned judgment passed by the Authority of the dismissal of petitioner from service, is set aside and the petitioner is reinstated into service. However, the petitioner's seniority will be in accordance with the revised seniority list issued on 10-2-1990 and the year promotees, who were promoted in the same calendar year in which the petitioner was appointed directly, would rank senior to the petitioner. There is however, no order as to costs.