' JUSTICE (R.) TANVIR BASHIR ANSARI (CHAIRMAN).---The present appeal has arisen in the following background:--
1. Before 1983, the clerical staff of the Department of the Auditor- General of Pakistan was organized as Junior Auditors (BS-5) and Auditors (BS-7) with minimum prescribed qualification of Matriculation and Intermediate respectively.
2. With effect from 1-7-1983, the cadre of Auditors was split into (a) Auditors (BS-7) and (b) Senior Auditors (BS-11). Minimum qualification for recruitment as Senior Auditor was enhanced to B.A./B.Sc./B.Com. The new cadre of Senior Auditors was to consist of:-
(i) Graduate Auditors and Graduate Audit and Accounts Assistant existing on 1-7-1983.
(ii) Non-graduate Auditors who may graduate subsequently and
(iii) Graduates to be recruited directly against the future vacancies in the cadre for against newly created posts.
3. The appellant was appointed in the office of Director Audit Defence Services (D.A.D.S.) Rawalpindi and joined as Senior Auditor (BS-11) having post-graduate qualification on 14-9-1988. He was later transferred to the A.G.P.R. In August, 1995.
4. The private respondents are non-graduates to the post of Senior Auditor having been promoted on different dates prior to 14-9-1988 when the appellant was appointed directly as a Graduate Senior Auditor in BS-11. The appellant felt aggrieved of the order, dated 26-1-2004 of the Director- General, Audit Defence Service Rawalpindi whereby the seniority list of Senior Auditors as on 31-12- 1994 was maintained and it was held that the appellant was rightly placed below the private respondents (non-graduate Senior Auditors) and that the appellant was entitled to the grant of selection grade (BS-15) with effect from 4-7-2000. He filed departmental appeal on 29-12-2004 which was rejected on 5-4-2004. The instant appeal before this Tribunal was filed on 29-4-2004.
5. The appellant contends that he was appointed as a graduate senior Auditor on 14-9-1988 in the office of Director Audit Defence Services Rawalpindi and was to count his seniority from the said date and that the act of the official respondents in treating the private respondents who are non- graduate promotees Senior Auditors as senior to him is against the law and facts of the case. The appellant relies upon the Letter No,880/ESTT-IV/C/55-97-KW, dated 5-10-2001 issued by the Auditor-General of Pakistan which was made to implement the judgment of this Tribunal, dated 29-12-1997 passed in Appeals Nos.590-592(K) of 1997 as upheld by the Honourable Supreme Court in the judgment, dated 23-7-1998 in Civil Petitions Nos.201A to 203(K) of 1998.
6. It is contended that according to the same, the non-graduate Auditors/Accounts Assistants who have .Been promoted as Senior Auditors (BS-11) retrospectively with effect from 1-7-1983 or from the date of their promotion/appointment as Auditors whichever is later as per Finance Division's Memo.
No,F(5)R-3/94-1752 dated 1-11-1994 shall be placed in the seniority list of Senior Auditors with effect from 1-11-1994 below the Senior Auditors who were existing in the seniority list of Senior Auditors as on 31-12-1993. The appellant contends that he was transferred to A.G.P.R. Albeit without maintaining his lien in D.A.D.S. With effect from 9-8-1995. Obviously the appellant was on the strength of D.A.D.S. With effect from 14-9-1988 till 8-8-1995 and was fully entitled to claim seniority on 31-12-1994. It is averred that the factum of transfer of A.G.P.R. On 9-8-1995 would be irrelevant for determining the seniority of the appellant on the strength of D.A.D.S. Before the said transfer became effective. It is further asserted that the placement of the private respondents as senior to the appellant is also violative of the various judgments passed by this Tribunal from time to time and upheld by the Honourable Supreme Court. The appellant further submits that as per his legitimate place in seniority he was also entitled to selection grade (BS-15) with effect from 14-9-1992 i,e, the date when he had completed three years of service as per the prescribed rules.
7. On the other hand the learned counsel appearing for the official as well as private respondents has controverted the claim of the appellant. It is contended that the seniority of the private respondents have been rightly determined above the appellant which was in accordance with the judgment of this Tribunal as also upheld by the Honourable Supreme Court. For parity of reason, the claim of the appellant regarding grant of selection grade with effect from 14-9-1992 is also denied.
8. We have heard the parties and perused the record.
9. The reorganization of the clerical staff of the department of the Auditor-General of Pakistan took place from time to time. Before 1983 the clerical staff of the department was organized as Junior Auditors (BS-5) and Auditors (BS-7) with minimum prescribed qualification as Matriculation and intermediate respectively. 33% incumbents of the post of Auditors were used to be placed in selection grade (BS-11) and were designated as Audit and Accounts Assistants. With effect from 1- 7-1983, the existing cadre of Auditors was split up into two cadres - Auditors and Senior. Auditors.
The cadre of Auditors was to continue to be filled in by promotion of Junior Auditors on seniority- cum-fitness basis. The cadre of Senior Auditors however, was to be filled in by the existing Graduate Auditors/Assistants or those non-graduate Auditors who graduated subsequently and also through direct recruitment of graduates. The post of Auditor was placed in BS-7 while that of the Senior Auditor was in BS-11. 1/3rd of the posts of Senior Auditors were entitled to the selection grade.
' Further reorganization was carried out with effect from 1-4-1988 as the result of which, there were to be only two cadres viz. Junior Auditors (BS-5) and Senior Auditors (B-11). Auditors (BS-7) were to be a dying cadre.
' Reorganization made in 1983 and 1988 as mentioned above seemed to affect the prospects of non-graduate Auditors. Many felt superseded by their juniors upon the strength of their educational qualification of graduation. In order to redress such a grievance, the Auditor-General of Pakistan issued letter dated 15-11-1994 to the following effect:-- "Government of Pakistan Department of the Auditor-General of Pakistan F-10/Islamabad No,796/Estt.IV/C/61-89-K.W Dated 15-11-1994.
To ' All the Accountants-General/ Director-General/Directors Sub Reorganization of Junior Auditors and Senior Auditors in Pakistan Audit Department.
' Kindly refer to this office memo. No,10-NGE-1/C/32-83, dated 8-2-1984, read with memo. No,798- NGE-1/C/42-87, dated 26-5-1988 and 1011/Estt-1/C/61-98, dated 17-11994 on the above subject.
(2) The competent authority has been pleased to make following further changes in the reorganization of the Pakistan Audit Department.
(i) Auditors (BS-7) and Audit and Accounts Assistant (BS-11) (non-graduates) may also be promoted as Senior Auditors (BS-11) with effect from 1-7-1983, the date from which the juniors were promoted as Senior Auditor (BS-11) in pursuance of memo. Dated 8-2-1981, referred to above.
(ii) Junior Auditors (B-5) who were promoted as (B-7) between 1-7-1983 to 31-3-1988 may also be promoted as senior Auditors (B-11) from the date they were promoted as Auditors.
(iii) No arrears shall, however, be admissible consequent upon the above said retrospective promotion.
(3) In this connection following clarifications are made:
(i) Non-graduate Auditors (B-7) would be promoted as Senior Auditor (B-11) with effect from 1-7- 1983 on the recommendation of the Departmental Promotion Committee.
(ii) Non-graduate Audit and Accounts Assistants (B-11) would be brought to the cadre of Senior Auditors (B-11) with effect from 1-7-1983, from the date their juniors were inducted to the cadre.
(iii) Junior Auditors (B-5), who were promoted as Auditors (B-7), between 1-7-1983 to 31-3-1988, would be promoted as Senior Auditors (B-11) from the date they were promoted as Auditors (B-7).
(iv) The inter se seniority of the Senior Auditors (B-11) cadre would be determined from the date of their continuous officiation in B-11 as per para.2(i) of this office O.M. Dated 26-5-1988 referred to above.
(v) If any Senior Auditor who has been given selection grade (B-15) loses this due to change of inter se seniority of Senior Auditors would retain his old pay in B-15, under F.R.23.
(vi) Promotion to the Cadre of Senior Auditor would be made, circulated vide this office endorsement No,1040-Admn.-117C/ 88-90, dated 20-11-1991.
(vii) No arrears prior to 1-11-1994 of pay and allowance would be admissible in consequence upon the above said retrospective.
(4) This issues with the concurrence of Finance Division vide its letter No,F-1(5)-R,3.94, dated 1-11- 1994 . "
10. The result of the above was that non-graduate Auditors existing on 30-6-1983 were promoted as Senior Auditors retrospectively with effect from 1-7-1983. This was challenged in Service Appeals Nos.326(L) of 1995 to 346(L) of 1995, 362(R) of 1995 to 375(R) of 1995 and 387(R) of 1995. The said appeals were dismissed by this Tribunal vide judgment dated 18-6-1996 and it was held that the aforesaid Notification, dated 15-11-1994 had the effect of meeting the needs of the non-graduate Auditors and non-graduate Audit and Accounts Assistants effectively and in accordance with law.
The said judgment was upheld by the Honourable Supreme Court.
11. At the same time some directly recruited graduate Senior Auditors filed Service Appeal No,590(K) to 592(K) of 1997. This Tribunal vide judgment, dated 29-12-1997 held that the directly recruited Senior Auditors shall maintain their seniority which shall not be disturbed in pursuance of the Notification of 15-11-1994. The matter was brought before the Honourable Supreme Court. The judgment of the Tribunal was not interfered with.
12. In order to comply with the aforesaid judgment, dated 29-12-1997 as upheld by the Honourable Supreme Court vide judgment, dated 23-7-1998, the Auditor-General of Pakistan issued Circular dated, 5-10-2001, in the following terms:-- "Department of the Auditor-General of Pakistan Audit House Constitution Avenue, G-5, Islamabad.
No, 880/Estt. /V/C/55-97-K. W.
Date 5-10-2001 To ' The all Directors-General/Directors of Audit, Assistant Auditor-General (P), Local Controller- General Accounts, Islamabad, Military Accountant-General, Rawalpindi.
Subject: Dispute of Seniority of graduate/non-graduate Senior Auditors of Pakistan Audit Department and Pakistan Military Accounts Department Implementation of judgment of Supreme Court in Civil Petition No,201-K to 203-K of 1998.
' In order to implement the judgment of Federal Service Tribunal, Karachi, dated 29-12-1997 in Appeals Nos.590, 591 and 592(K) of 1997 as upheld by the Supreme Court of Pakistan in their judgment, dated 23-7-1998, in Civil Petitions Nos.201-K to 203-K of 1998 and Civil Review Petition No,17-K of 1998 and C.P. No,201-K of 1998, this office in consultation with Finance Division and Establishment Division has reorganized the cadre of Senior/Junior Auditors as under:--
(i) The graduates directly recruited/promoted as Senior Auditors between 1-7-1983 to 1-11-1994 shall retain their seniority position in the seniority list as on 31-12-1993. Hence the seniority list of all Senior Auditors issued on 31-12-1993 shall remain operative.
(ii) The non-graduate Auditors/Audit and Accounts Assistants who have been promoted as Senior Auditors (B-11), retrospectively with effect from. 1-7-1983 or from the date of their promotion/appointment as Auditors whichever is later in terms of Finance Division's Memo. No,F.
(5)R.3/94-1752, dated 1-11-1994 may now be placed in the seniority lists of Senior Auditors with effect from 1-11-1994, below the Senior Auditors who were existing in the seniority list of Senior Auditors as on 31-12-1993.
(2) This issues with the approval of Auditor-General of Pakistan."
13. There were thus, two sets of judgments passed by this Tribunal both of which protected the rights of the graduate Senior Auditors and non-graduate Senior Auditors respectively. The matter came up before this Tribunal in Appeals Nos.504(R)(C.S.) of 2002 to 506(R)(C.S.) of 2002 which were decided vide judgment, dated 31-1-2004. Considering effect of all the foregoing litigation and judicial pronouncements the following conclusions were arrived at:-- "(i) Irrespective of their qualification, Auditors and Audit/Accounts Assistants who were in service as on 30-6-1983, upon upgradation/promotion as Senior Auditors would reckon inter se seniority on the basis of their length of service.
(ii) Directly recruited graduate Senior Auditors would reckon inter se seniority from the date of appointment."
' The said appeals were thus disposed of in the aforementioned terms with the direction to the official respondents to maintain two separate seniority lists: one of the departmental Auditors/Audit and accounts Assistants deriving the seniority on the length of service as on 1-7- 1983 and the other of the graduate directly recruited Senior Auditors against the quota/posts reserved for them. It was also directed that the requisite quota for award of selection grade for the two sets of Senior Auditors be also prepared.
14. This judgment dated 31-1-2004 appeared to have reconciled the status of seniority between the directly recruited Senior Auditors and those who were promoted from junior ranks.
15. There is substance in the submission made by the appellant that the joint seniority list impugned in this appeal shall act to the detriment of the vested right of his seniority as upheld by this Tribunal in its judgment, dated 31-1-2004. For the same reason, claim of the appellant to be granted selection grade in accordance with the requirement of Serial No,39 ESTACODE, 2000 on the basis of completion of three years of service with effedt from his date of initial recruitment as Senior Auditor, dated 14-9-1992 with full back-benefits is sustainable at law.
16. In these circumstances the appeal is accepted and the respondents Nos.1 and 2 are directed to place the appellant at his rightful place in the separate seniority list for directly recruited Senior Auditors. The official respondents are further directed to determine the entitlement of the appellant for the award of selection grade (BS-15), keeping in view the provision of Senior No,39, Clause (b)(ii)
ESTACODE, 2000 as well as the position of the appellant in the inter se seniority of the directly recruited Senior Auditors and the effective date of the award of selection grade. Back-benefits shall follow such determination which shall be completed within two months of the communication of this order.
17. No order as to costs.
18. Parties be informed.