1. G. D. MEMON (MEMBER).-----Consequent upon the .Re-organization of the Federal Secretariat and introduction of Section Officers scheme in August 1959, the appellant a permanent Assistant in the Finance Division (among others) was promoted as a Section Officer on a temporary basis for a period not exceeding six months (or until further orders, whichever was earlier) vide Establishment Division's Office Memorandum No. 3/13/61-III dated 16th July, 1965. He was to assume charge of his new assignment under intimation to the Establishment Division.
2. As he was working as Assistant in the Embassy of Pakistan, Washington, he could not be relieved, in public interest. It was therefore agreed not to recall the petitioner and the Economic Minister was informed d.o. Vide letter dated 17-9-1965 that the petitioner was allowed "pro forma promotion", to protect his seniority in the grade of Section Officer and a notification to that effect had already been issued. He was permitted to continue in that office.
3. Although, the tenure of deputation expired in 1968, he could not be relieved to join as Section Officer, for want of a substitute. He continued to work in the Embassy and the assurance given earlier, was reiterated in the Finance Division's d.o. Letter No. 489 Admn. IV/69 dated 2-2-1969.
4. After his return to Pakistan, he joined as Section Officer, in the Finance Division on 16-8-1969. He drew pay in the grade admissible to Section Officers, with effect from 16-7-1965 and in the gradation list issued. By the Establishment Division, the date of appointment was shown accordingly viz. 16-7-1965. Subsequently however, in the O. M. No. 8/1/74.C-III (A) dated 13-2-1975, and 26-5-1975, the date of his promotion as Section Officer was shown as 16-8-1969.
5. His representations to treat his continuous appointment as Section Officer, as from 16-7-1965, instead of 16-8-1969 have been turned down vide final reply contained in the Finance Division's O.
6. M. No. PF. AI/345/76, dated 9-8-1976.
7. It is contended that the Finance Division's Notifications No. 2819--Admn. II/65 dated 15-9-1965, No. F.
8. 6(38)-AII/66-1034 dated 7-4-1966, regarding formal appointment with effect from 16-7-1965, issued with the concurrence of the Establishment Division constitute a valid appointment order and should be regarded `ipso facto' proof of his continuous appoint--ment. Reliance has also been placed on Finance Division's O. M. No. F. 1(5) RI(RWP)/62 dated 21-4-1962, reproduced as Government's decision No. 17 below FR 30 and Establishment Division O. M. No. 6/15/48-ME dated 31- 3-1951.
9. It is further claimed that the appointment was permissible under rule 5(1) (f ) of the Central Secretariat Service (Class I) Rules which protected officers away on temporary deputation outside the Secretariat, for the purpose of initial constitution of service and that rule 13 ibid imposes no condition for the purpose of counting "continuous appointment" and assumption of charge in the Finance Division was not in the nature of afresh appointment but a mere posting: The petitioner prays that the Establishment Division be directed to fix his seniority as Section Officer as from 16-7-1965 and he be granted all the consequential benefits.
10. Respondent No. 1 has contested the claim of the appellant for redeter--mination of his seniority with effect from 16-7-1965, inter alia on the following grounds :-
(a) The appellant was approved for appointment as Section Officer in the Ministry of Finance on a temporary basis for a period of 6 month or until further orders whichever was earlier.
(b) The Service Rules came into force with effect from 23-10-1965 and as he had not joined before that date, he became ineligible for appointment vide rule 6(b) and (c) and rule 11 of the C. S. S. Rules, 1965 and that sub-rule (f) of rule 5 restricts application to only those Section Officers who had been appointed after 13-9-1961 but before 23-10-1965 and that his , appointment from 16-8- 1969, was made on compassionate grounds in relaxatian of the rules.
(c) The supplementary list and the list circulated on 13-2-1972, were revised vide Establishment Division's O. M. No. 8/1/74-C-III(A) dated 26-12-1975.
(d) C. S. S. Rules, 1965 provide for counting seniority with effect from continuous date of officiation in the grade and the appellant having assumed charge of the post only on 16-8-1969, there could be no other date of continuous officiation in the grade except 16-8-1969.
(e) With the enforcement of the Service Rules, 1965 appointment to the post of Section Officer was brought within the purview of the Federal Public Service Commission and that future recruitment was to be made through promotional examinations.
11. We have heard the arguments in great detail. We do not agree with the view that the petitioner's appointment is not continuous (from July 1965) and that his appointment would be treated as continuous from 16-8-1969, and that it was made on compassionate grounds and in relaxation of Rules.
12. On the pretext of compassion and relaxation of rules, the benefit which has already accrued by reason of pro forma appointment/promotion' from July 1965 could not be taken away. This benefit however, is in the matter of fixation of pay in the grade of Section Officer and the annual increments earned in that grade.
13. What however the petitioner is claiming is the benefit of seniority in the grade/cadre with effect from the date of appointment as Section Officer in July, 1965. The question of seniority in the service/cadre of Section officer however is dependent upon the determ nation of the date, on which he was formally inducted into the service end became a member of that cadre.
14. For that purpose, it would be necessary to undertake examination of the Central Secretariat Service (Class 1) Rules, 1965. Rule 3, relates to the `Constitution of Service'. This rule contemplates :
(a) Persons appointed to the service on initial Constitution of the service, as provided in rule 5, and
(b) Persons subsequently appointed to the service by direct recruitment or by promotion in accordance with the rules.
15. It would be necessary to examine whether the petitioner was appointed to the service on its initial constitution under rule 5 of the Rules 1965. Sub-- rules (d) and (f ), relevant in the context of the petitioner's case, are reproduced for facility of reference :-- "5.-(d) Such of the Superintendents, Assistants and other Class II officials appointed as Section Officers in the Secretariat before the 14th day of September 1961, as have been declared in consultation with the Commission, fit for permanent retention .
16. (f). S. R. O. 507(1)/71.-Officers appointed as Section Officers after the 13 day of September, 1961 but before the 23rd day of October 1965, as have been declared in consultation with the Commission, fit for permanent retention."
17. The petitioner was appointed/promoted in July 1965. Since, he was not appointed/promoted before the 14th day of September 1961, the provisions of sub-rule (d) of rule 5 are not applicable in his case.
18. Sub-rule (f) contemplates (i) appointment before the 23rd day of October, 1965 and (ii) declaration in consultation with the Commission regarding fitness for permanent retention. The petitioner having been appointed before the 23rd day of October 1965, the first condition laid down le in the sub-rule has been met.
19. As regards (ii), it was considered necessary to examine, whether the petitioner was declared in consultation with the Commission, fit for permanent retention.
20. During the course of arguments, it was brought to our notice that the petitioner had appeared in the examination conducted by the Public Service Commission in 1967 but he failed to qualify. He therefore availed of the second chance in 1973 (no examination was held in between) and qualified. Whether, under the Rules, it was incumbent upon the petitioner to take the examination and qualify for the purpose of permanent retention and the effect of failure to qualify in the first attempt on seniority now being main issues presently, in the context of the instant case, were not gone into in detail. Rule 11, which has reference to recruitment by promotion, to be made on the basis of written competitive examination and interviews to be held by the Commission, obviously relates to future recruitment to the service, contemplated under rule 6 ibid. The point at issue in this case concerned the regularization of the appointment and declaration in consultation with the Commission that the petitioner was fit for permanent retention.
21. Finding on this issue alone, would enable, the Tribunal to determine, how his seniority could be fixed under rule 13 of the Rules of 1965.
22. Accordingly, in our order dated 4-12-1977, we directed that copies of the correspondence between respondent No. 1 and the Commission in regard to the regularization of the petitioner's appointment be produced. These documents, have since-been produced.
23. As a result of the examination of the relevant documents, it is evident that the petitioner was allowed (among others) "to continue as Section Officer in excess of six months, on a temporary basis and until further orders. It was further stipulated that he would take the examination, in pursuance of the provisions of rule 11 of the Central Secretariat Service (Class 1), Rules, 1965 for promotion to the Section Officers' grade and that the question of his regular retention was to be decided on the results of `that' examination. This has reference to Establishment Divisions Letter No. 3/12/61-C-III dated 22nd March 1966, a copy of which was endorsed to Ministry/Division concerned.
24. That being the position, the question of his regular retention has yet to be decided (although he passed the examination in 1975). The question of seniority in the cadre would arise only thereafter and not until then.
25. The petition is therefore premature and is disposed of accordingly.
26. Parties to be informed.th