' HASAN RAZA PASHA (MEMBER).--- These appeals are directed against the promotion of Maj. (Retd.)
Muhammad Arshad Mirza, an Officer of Offices Management Group to BPS-19 by ignoring the appellants who consider -themselves senior to him. These appeals involve similar facts and issues of law and, therefore, are being disposed of by a common judgment.
2. Brief facts of these appeals are that the four appellants as well as the respondent No,3 joined the Office Management Group (OMG) in 1991 and were assigned their respective seniority by the Federal Public Service Commission (FPSC). According to the appellants they were placed in positions senior to that of respondent No,3. They got promoted to BPS-18 in 1995 whereas the.
Respondent No,3 was promoted to BPS-18 in 2001. Respondent No,3 was further promoted to BPS-19 in January, 2002. The appellants submitted departmental appeals against his promotion and ignoring them but the same were rejected. The following table will show the relevant dates relating to their service career and their departmental appeals:-- Nance of appellantJoined OMGSerial No. as the original seniority listPromoted to BS-18Dep.
Appeal onOrder on Dep. Appeal Aziz-ur-Rehman Malik10-10- 1991108 29-12-1995 29-1-20024-2-2002 Waqar Ahmed19-10- 1991110 26-12-1995 28-1-200214-2-2002 Akhtar Jan18-11- 198988 31-1-1995 20-1-200211-3-2002 Munir Ahmed18-11- 198970 31-1-1995 20-1-200218-3-2002 Maj. (Retd.) Muhammad Arshad Mirza, respondent No.3.1991 111 1-10-2001
3. Aggrieved by the order rejecting their departmental appeals the appellants have approached the Federal Service Tribunal (FST) in appeals under section 4, Service Tribunals Act, 1973.
4, Mr.Abdur Rahim Bhatti and Mr. Abdur Rashid Saqib, Advocates represented all the four appellants, Mr. Jawaid Azii Sandhi) Standing Counsel represented Secretary, Establishment Division respondent No,1, Lt.-Col. Iqbal Hashmi, Assistant Judge ocatc General represented Secretary, Defence Division, respondent Nu.2 and Mr. M. Shoaib Shaheen, Advocate represented Maj. (Retd,)
Muhammad Arshad Mirza, the private respondent No,3.
5. Mr. Abdul Rahim Bhatti led the arguments for the appellant, and maintained that the respondent No:3 has been given the advantage of the army service in changing his seniority by misapplication of the Compulsory Service in the Armed Forces Ordinance, 1971 as amended in 1978 whereby the service rendered by respondent No,3 in the army between 1984-1991 was counted as compulsory service and, therefore, added to his total length of service thereby making him senior to the appellants and enabling the respondent No,1 to promote the respondent No,3 to BPS-18 on 1-10- 2001 and to BPS-19 after less than four months on 11-1-2002. The learned counsel argued that the only seniority list in respect of the OMG Officers relating to the appellants and the respondent No,3 was issued in 1993 which shows that the appellants were senior to the respondent No,3. He next argued that the respondent No,3 illegally took the advantage of section 9-A of the Compulsory Service in the Armed Forces Ordinance, 1971 as amended in 1978. He argued that the respondent No,3 actually joined the Pakistan Army on 21-4-1984 through Inter-Service Selection Board (ISSB) and was given Short Service Regular Commission. In this behalf he referred to a document submitted by the respondent No,3 himself to the C.B.R. For his consideration for move-over, as well as the written comments of respondent No,2 wherein the Judge Advocate-General's Branch of the General Headquarters (GHQ) has stated in unambiguous terms that the appellants got Short Service Regular Commission and that he was not inducted in the Pakistan Army through the Compulsory Service Ordinance, 1971. The statement submitted by the respondent No,3 to the C.B.R.
Shows that he had got regular commission in Pakistan Army through ISSB. He next argued that the respondents have acted in a mala fide manner in dealing with their departmental appeals and the earlier representation of respondent No,3 for adding his army service to his seniority in the OMG. He pointed out that the departmental appeals were disposed of by the respondent No,1 in a very short time which indicated that the same had not been placed before the Chief Executive and that these were disposed of at some lower level. He in particular referred to the departmental appeal of Mr. Azizur-Rehman Malik, appellant which was submitted on 29-1-2002 and disposed of on 4-2-2002.
He argued that it was not possible that the Establishment Division would have processed the case, prepared summary for the Chief Executive and obtained his orders in just about one week. He further argued that the respondent No,3 submitted his representation for antedation of his seniority about eight years after entering into service and that he waited for submission of his latest representation till his own appointment as Private Secretary to the Minister for Communication, a retired Army Lt.-General, and the appointment of a retired Brigadier as a Joint Secretary in the Establishment Division who facilitated a positive decision in favour of respondent No,3 by misinterpreting the law. He next argued that seniority of Officers of OMG is governed by clause 12, Establishment Division's Office Memorandum No,1/2/1975-ARC dated 27-1-1995 as amended from time to time appearing at page 1187 to 1193, ESTACODE 2000 and Rule 5, Civil Servants (Seniority)
Rules, 1973 which relate to seniority of army officers on induction into the civil posts and stipulate that seniority of such officers counts from the date of such induction. The learned counsel finally argued that the appeals before the FST were submitted in time because they invoked the FST's jurisdiction under section 4, Service Tribunals Act, 1973 soon after their departmental appeals were rejected. He, therefore, argued that the appellants be given their due seniority and promoted to BPS-19 from the date their junior, respondent No,3, was promoted.
6. The learned counsel for respondent No,1 initiated the arguments from the respondents' side. He argued that the appellants have assailed the promotion of respondent No,3, whereas they should have in the first instance challenged his seniority and got their own seniority restored. He, therefore, argued that the appeals were misconceived and premature. He next argued that the respondent No,3 was given the benefit of section 9-A of the Compulsory Service in the Armed Forces Ordinance, 1971 which was incorporated in 1978 with an amendment.
7. The representative of respondent No,2 categorically questioned the position taken by the learned counsel for the respondent No,1 and in his short presentation argued that the respondents have misinterpreted and misapplied the Compulsory Service in the Armed. Forces Ordinance, 1971. He also stated very clearly that the respondent No,3 had been given short service regular commission as a Doctor in the Pakistan Army and was not, inducted through. The 1971, Ordinance.
8. The learned counsel for the respondent No,3 adopted the arguments of the learned counsel for the respondent No,1 and also added that the present appeals were hit by the bar of limitation. He argued that the appellants had the knowledge of the change in seniority In the year 2000. He referred to a letter of the Establishment Division dated 10-5-2002 conveying the order of respondent No,1 allowing seniority to the respondent No,3 in BPS-17 in the OMG by adding the period of army service from 21-4-1984 to 21-11-1991 in terms of section 9-A. Compulsory Service in the Armed Forces Ordinance, 1971 as amended, which was addressed to Mt. Waqar Ahmed, appellant: He argued that the appellant should have challenged this seniority of respondent No,3 with reference to 10-5-2000 and having failed to do so he had attracted the bar of limitation and therefore,his appeal was liable to be dismissed on this ground alone. The learned counsel also referred to the prayer of the appellants in the memorandum of appeals submitted to the FST.
According to him the prayer only related to denial of promotion to them and not about the change in their seniority. He argued that unless the appellants' position on their seniority vis-a-vis respondent No,3 was accepted by respondent No,1 they could not question the promotion of the respondent No,3. In this behalf he referred to Order II, rule 2, Code of Civil Procedure (C.P.C.) and maintained that having failed to take this plea in the memorandum of appeals they. Could not raise it in the course of the arguments. He next argued that the principle of locus poenitentiae was attracted in this case, in that the respondent No,3 has acquired a vested right conferred on him by. a. Competent authority by, following the prescribed procedure for promotion. Since a legal right has been created and taken effect the order of promotion of respondent No,3 could not be withdrawn. He, therefore, argued 'that the appeals have no force and be dismissed.
9. We have carefully considered the arguments advanced on behalf of the parties. We have also examined the record produced before us. We will first take up the issue of limitation. This was raised only by the learned counsel for the respondent No,3. His argument that the order conferring seniority to respondent No,3 above had come to the notice of Mr. Waqar Ahmed, appellant on 10- 5-2000 and, therefore, any appeal would have been maintainable within thirty days of this order before the departmental appellate authority in the first instance and thereafter before the FST if no relief was provided in the department. The learned counsel for the appellants denied that Mr. Waqar Ahmed had any knowledge of this letter of 10-5-2000 and that he as well as other appellants came to know of the change in the seniority only on seeing the order impugned by them. The said letter is reproduced below:- Government of Pakistan Cabinet Secretariat Establishment Division ' No,8/I/2000.OMGI Islamabad, the 10th May, 2000 ' Office Memorandum Subject Application of Dr. Muhammad Arshad Mirza, Officer of (BS-17) of OMG for adding the period of service rendered in the Armed Forces of Pakistan towards the length of service in the Federal Service of Pakistan and consequently the fixation of applicants seniority, accordingly.
' The undersigned is directed to refer to Revenue Division (Central Board of Revenue's O.M.
No,103(80)/94-AIT.II/936, dated 25-2-2000 on the subject noted above and to say that Dr. Muhammad Arshad Mirza, an officer (BS-17) of OMG presently posted as Assistant Commissioner of Income Tax has been allowed seniority in BS-17 Officer of OMG w,e,f, 21-4-1984 i,e, by adding the period of service from 21-4-1984 to 21-11-1991 i,e, 7 years and 7 months rendered by him in the Armed Forces from the date of his appointment (21-11-1991) in terms of section 9-A of Compulsory Service in the Armed Forces Ordinance, 1971 as amended on 28-1-1978.
(Sd.) Muhammad Saleem Section Officer, OMG-I ' Central Board of Revenue, ' (Mr. Waqar Ahmed, Second Secretary-AIT-II)
' Islamabad.
' This letter does indicate that it was addressed to one Mr. Waqar Ahmed, but the learned counsel for respondent No,3 has not been able to produce any concrete evidence to establish that it was the same Mr. Waqar Ahmed who is an appellant before us or that it was seen by him. He only presumed that Mr. Waqar Ahmed had the knowledge of this letter. We know from common experience that all letters addressed to particular officers and examined in a Government Organization may not be necessarily opened or seen by such Officer; such letters may be received even by an officer at a lower echelon. In the absence of any proof we are not persuaded by the argument that the appellants had the knowledge of the change of seniority on 10-5-2000 and that, therefore, the present appeals were time-barred, and particularly the appeals of the remaining appellants to whom this letter was not addressed.
10. The learned counsel for respondents 1 and 3 also took the position that the appeals were misconceived, in that the change in seniority should have been questioned in the first instance and since the present appeals only assailed the promotion of respondent No,3, therefore, no relief could be provided to the appellants.
11. We have seen the common prayer in these appeals which reads as follows:-- "Service appeal may kindly be accepted with costs and the appellant may kindly be considered for promotion as Deputy Secretary (B-19) from the date respondent No,3 was promoted to B-19, by setting aside the impugned Notification dated 1-1-2002, with all consequential back benefits.
' Any other relief, which this Honourable Service Tribunal deems fit under the circumstances, may also be graciously granted to the appellant."
' Though part-I of the prayer relates to promotion, part-II seeks intervention of the FST for providing any other relief which FST may deem fit. The rest of the memorandum of appeals questions the benefits of the seniority extended to the respondent No,3. Paras.3, 10 to 13 of the memoranda of appeal in all the instant appeals deal exclusively with the question of seniority. We will, therefore, repel this argument.
12. The most essential issue involved in these appeals is the interpretation of section 9-A, the Compulsory Service in the Armed Forces Ordinance, 1971 as amended in 1978. In order to understand the implications of the benefits allowed by this section all the related provisions of this law need to be taken into account. Section 9-A was not included in the original Ordinance in 1971 but was inserted by Ordinance No,IV of 1978 on 28-1-1978. The said section reads as follows:-- "The Gazette of Pakistan Extraordinary Published by Authority Islamabad Saturday. January 28, 1978 Part I Acts, Ordinance, President's Orders and Regulations Government of Pakistan Ministry of Law and Parliamentary Affairs (Law Division)
Islamabad the 28th January, 1978 No, F.21(1)/78-Pub . The following Ordinance made by the ' President on the 25th January, 1978 is hereby published for general information:-- Ordinance No,IV of 1978 ' An Ordinance further to amend the Compulsory Service in the Armed Forces Ordinance, 1971
(2) It shall come into force at once and shall be deemed to have taken effect on the third day of December, 1971.
2. Insertion of new section 9A, Ordinance XXXI of 1971.--- In the Compulsory Service in the Armed Forces Ordinance, 1971 (XXXI of 1971), after section 9, the following new section shall be inserted namely:-- "9A Concessions to medical practitioner released from service with the Armed Forces.--- Notwithstanding anything contained in any other law for the time being in force, a medical practitioner who, following his release from service with the Armed Forces after having rendered satisfactory service under this Ordinance for a period of not less than two years, enters employment of the Federal Government or a Provincial Government shall be entitled to count towards his seniority in such employment the period of service rendered by him under this Ordinance and to his pay in such employment being fixed after giving him credit for the service so rendered.
Explanation.--- In this section, "medical practitioner" has the same meaning as in section 3."
(Sd.) Fazal Elahi Chaudhry, President (Sd.) C.A. Rahman Additional Secretary."
13. A medical practitioner is considered as an essential person. Essential person is defined in section 2(c) (ibid) as follows:-- Definition. "2". In this Ordinance, unless there is anything repugnant in the subject or context--- "(c) "Essential person" means a person registered under section 3 of the Essential Personnel (Registration) Ordinance, 1948 (X of 1948), and includes such other person as the Central Government may by notification in the official Gazette, declare to be an essential person for the purposes of this Ordinance."
13-A. The service of an essential person can be requisitioned for compulsory service under this Ordinance in the manner provided for in section 4 and such a person is granted Commission in the armed forces under section 7. The said sections are also reproduced below:-- "4. (1) The Manpower Board, or such authority as may be empowered by it, shall, on requisition from any of the Service ' Headquarters, issue in writing notices to such essential persons as are, to be called up, directing them to report in person to such authority at such time and place as may be specified in the notice.
(2) The Service Headquarters concerned, or such authority as may be empowered by them, may likewise issue call up notices to ex-serviceman.
(3) The issue of a notice under this section shall not mean that the person called up has been accepted for service.
(4) Where such person is known to be serving in an industrial undertaking, a copy of such notice shall at the same time be forwarded to the owner or manager of such undertaking requiring such owner or manager to release him within seven days of the receipt thereof.
(7) A person called up for service under this Ordinance may be granted Commission in the Armed Forces subject to such conditions as may be prescribed."
14. In case of respondent No,3 it has been averred that he completed his M.B.,B.S. And passed the final professional examination held in December, 1983. The respondent No,3 has produced copy of the call up notice for Compulsory Services in the Armed Forces issued by the Employment Exchange, Lahore on 26-12-1983. The learned counsel for the appellants has questioned these documents. Respondent No,3 by his own admission passed his M.B.,B.S. Professional Examination in 1983. Before he could have been called up for compulsory service he had to get himself registered at the local Employment Exchange under section 3, Essential Personnel (Registration) Ordinance, 1948 as indicated in section 2(c) of the Ordinance reproduced in para. 12 (supra). At the same time the respondent No,3 was required to get himself provisionally registered as medical practitioner as required by section 23, Medical and Dental Ordinance, 1962. A medical graduate has to get his provisional registration with the Council in order to be able to get prescribed experience in an approved hospital or approved institution. It is only after going through the prescribed period of experience in an approved hospital or institution that the provisional registration is converted into regular registration. It is hard to believe that the respondent No,3 would have completed all these procedure immediately after the examination was held. In any case the statement of respondent No,3 has left us in no manner of doubt that the respondent .No,3 was not requisitioned for compulsory service under the Ordinance, 1971. The relevant part of the comments submitted on belief of respondent No,2 read as follows:-- "(b) Paras.2 and 3 PSS-101673 Major (Retired) Muhammad Arshad Mirza was granted Short Service Regular Commission in Pakistan Army as Doctor on 21st April, 1984 vide Central Officer's Record Office Order No,228/84 and Gazette of Pakistan No,851/84 (Annexure "A"). The officer served the Army as Major (Doctor) and was released with effect from 21st November, 1991. The officer was not inducted in Pakistan Army through Essential Services Act, 1971 (Annexure "B"). (Portion underlined by us for emphasis).
' These comments were reiterated in the arguments advanced by Lt.-Col. Iqbal Hashmi, Assistant Judge, Advocate-General before us. Neither the learned counsel for respondent No,1 nor respondent No,3 controverted this statement or even attempted to do so. We are, therefore, convinced that respondent No,3 was wrongly given the benefit of his service in the army, that he was entitled to the seniority in OMG in BPS-17 in accordance with the provisions of clause 12 of the aforesaid notification of the Establishment Division and Rule 5, Civil Servants (Seniority) Rules i,e, the date of his induction in the OMG after having passed the examination conducted by the FPSC which would mean the original seniority determined by the FPSC in BPS-17 is restored as shown in the table in para.2 (supra).
15. The learned counsel for respondent No,3 referred to the principle of locus poenitentiae, and argued that an order, passed by a competent authority, having taken legal effect, creates a vested right which cannot be revoked. We are not persuaded by this argument because very clearly this right was created by misinterpretation of the law by respondent No,1 and misrepresentation of facts by the respondent No,3 which was accepted by the respondent No,1 in a facile manner.
Keeping the prevailing culture in the Government establishments it is possible that the decision to create this unlawful right was taken under some pressure. The plea taken on behalf of Mr. Aziz-ur- Rehman Malik, appellant that his departmental appeal may not have been even put up to the Chief Executive, raises serious doubts about the conduct of respondent No,1 whose counsel made no attempt to rebut this argument. But without going into this aspect of the matter, there is irrefutable evidence provided by respondent No,2 that an illegality was committed by the respondent No,1 by improving the seniority of the respondent No,3 and thereupon promoting him by two levels in two hasty steps. A right created through an illegality and colorable exercise of power, cannot be designated as a vested right and as such has to be revoked.
16. For the foregoing reasons, we accept the appeals and direct that the seniority of all the parties be restored to the respective positions assigned to each in 1993 seniority list and the appellants be considered for promotion to BPS-19 with effect from the date they became eligible for the same.
17. There is no order as to costs.
18. Parties be informed.