Syed Bilal Ahmed, Member.--In this appeal filed on 28.1.2006, the appellant assailed impugned Notification dated 21.9.2005 under which 34 officers of Export Promotion Bureau were promoted to BS-17 and inducted in Commerce and Trade Group, including Respondents No, 4 to 9 who were junior to him.
2. Brief facts of the case as given in the memo of appeal are that the appellant belonged to former Leather Industry Development Organisation (LIDO), which was merged with Export Promotion Bureau (EPB) on 1.7.1997. After merger, the appellant joined EPB as Assistant (BS-15) on 10.2.1998. 46 employees of EPB in BS-11 to BS-13 were promoted as Executive Officers (BS-16) but the appellant was ignored for promotion. He approached the Tribunal in Appeal No, 1095(R)/1999 which was accepted and the appellant was declared senior to private Respondents No, 5 & 6. It was also decided that Seniority List be prepared afresh and the appellant be considered for promotion to the post of Executive Officer (BS-16), from the date his juniors had been promoted. The respondents filed CPLA before the Hon'ble Supreme Court (No, 850/2000) against the judgment of FST. The appeal was dismissed by the Hon'ble Supreme Court vide Order dated 2.3.2001. Thereafter, seniority list was prepared and circulated by EPB. Name of the appellant was placed at Serial No, 35 of the Seniority List dated 10.1.2004. However, the Departmental Promotion Committee in its meeting held on 17.9.2005 ignored the appellant for promotion to BS-17, ostensibly under misconceived and invalid reasons. The appellant preferred departmental appeal. The respondents gave no response within the prescribed period, whereafter, this appeal was filed.
3. The impugned order was assailed on the ground that the appellant was ignored for promotion in the most arbitrary manner and on invalid grounds. It was stated that "if an officer is superseded, not only the reasons should be recorded but it should be supported by tangible material" [1999 SCMR 1605 and 2004 TD (Service) 49].
4. In reply, the Respondents No, 1 to 3 stated that the appellant joined EPB as Assistant on 10.2.1998, whereas, DPC meeting for promotion to BS-16 was held on 27.1.1998. Obviously the appellant could not be considered for promotion before he even joined the organisation. However, he was later promoted as Executive Officer (BS-16) on 09.08.2001. The respondents stated that revised seniority list of Executive Officers (BS-16) was circulated on 21.3.2006 and the appellant was now at Serial N. 2 of Seniority List for promotion to BS-17. On the deferment of the appellant it was stated that Mr. Saeed Rabbani was deferred by the Departmental Promotion Committee for promotion to BS-17 on the following grounds:-- "1. No ACR earned in BS-16. On promotion to BS-17 he would have been inducted in Commerce and Trade Group, which is a Federally Constituted Specialized Group. It was considered that the official, who has not worked in BS-16, will be unable to work directly in BS-17.
The matter is subjudice in the Honourable Federal Service Tribunal. The Tribunal allowed seniority to the other employees of LIDO on the basis of the case of Mr. Saeed Rabbani. But the Supreme Court has remanded the case back to the Service Tribunal, as the officers of Commerce and Trade Group felt aggrieved by the decision of FST. If Mr. Rabbani would have been inducted in Commerce and Trade Group by promotion to BS-17, without waiting for the decision of the Tribunal after the judgment of the Supreme Court, this would have been violation of the decision taken by the Supreme Court."
The respondents admitted that promotion is based on principle of "Seniority-cum-fitness" but in the instant case the seniority is subject to the final decision by the Hon'ble Tribunal and final decision of promotion is considered and decided by DPC". It was stated that the appellant was deferred for valid reasons. ACR record of the appellant was not complete and the matter is subjudice.
5. Private Respondent No, 4 and 6 raised preliminary objections, stating that the appeal is not maintainable because EPB became an Authority after promulgation of Ordinance No, XXX of 2006.
It was stated that the appeal was liable to be dismissed in view of judgement of the Hon'ble Supreme Court dated 20.4.2005. Employment of the appellant in LIDO was on temporary basis, therefore, appellant cannot claim seniority over confirmed employees of EPB. It was stated that staff of LIDO was merged with EPB therefore, appellant cannot claim seniority over the "previous staff of EPB". The appellant can only claim inter-se-seniority with employees of LIDO. That according to FR 12 to 15 lien can be held against a permanent post, whereas, the appellant was holding post that was neither permanent nor was he confirmed. The Hon'ble Supreme Court set aside the seniority granted to the petitioner vide judgement dated 20.4.2005 in CMA No, 723/2003, Civil Petitions No, 334 to 339/2003 and 2607/2003. It was stated that the appellant was deferred due to non-availability of his ACR. That this Tribunal has no jurisdiction to declare any employee as suitable and fit for promotion. The jurisdiction of this Tribunal is specifically ousted as per provisions of Section 4(1)(b) of Service Tribunals Act, 1973. That the Cabinet in its decision dated 27.1.1997 decided to merge LIDO with EPB. That decision of the Cabinet dated 13.2.1995 is self-contradictory because do the one hand the Cabinet decided the merger of LIDO with the EPB while under the same decision directed EPB to implement the recommendations of Management Services Division.
It was alleged that the order of merger of LIDO with EPB was not in accordance with Rule 15 of the Rules of Business, 1973. That the appointment of Respondents was made in departure to method for appointment prescribed under Rule 11 of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973, and this practice rendered the appointment of Respondents as invalid and defective." It was stated that employees of LIDO were project employees and could not be declared autonomous body except under Section 25 of Civil Servants Act, 1973 and Rule 15 and 15A of Civil Servants Act, 1973 and rule 15 and 15A of Rules of Business, 1973. Respondents No, 4 & 6 prayed that the appeal be dismissed and Management Services Wing of the Establishment Division may also be impleaded as a party.
6. At the bar learned Counsel for the appellant cited judgments 2001 (TD) Service 384 and 2007 PLC
(CS) 997 in support ' in his arguments.
7. Arguments heard and record perused.
8. We have gone through the objections raised by the private respondents. The same are devoid of legal substance. Their prayer for impleading Management Services Wing of the Establishment Division as necessary party has no merit after the decision of the Cabinet taken in its meeting held on 27.01.1997. Relevant part of the decision of the Cabinet is reproduced as follows:-- SI. No, ORGANISATIONS DECISION OF THE CABINET
3. Leather Industry Development Organization. May be merged with Export Promotion Bureau.
Implementation within one month.
9. This appeal is directed against the impugned order dated 21.09.2005 through which six officers junior to the appellant were promoted from BS-16 to BS-17. Earlier, the appellant approached the Tribunal in Appeal No, 1095(R)/1999 for fixation of his seniority. The appeal was accepted. The operative part of the judgment dated 20.03.2000 was as follows:-- "The appellant is declared senior to the private Respondents No, 5 and 6 in the seniority list to be prepared afresh and also be promoted as Executive Officer from the date his immediate junior has been promoted. In view of the peculiar attendant circumstances of the case there shall be no order as to costs".
Civil Petition for Leave to Appeal No, 850/2000 was filed before the Hon'ble Supreme Court against the judgment of FST referred upon. The petition was dismissed and leave declined vide Order of the Hon'ble Supreme Court dated 02.03.2001. Accordingly, judgment of FST dated 20.03.2000 attained finality. In consequence, thereof, a revised seniority list was prepared and circulated by EPB on 10.01.2004. The appellant was placed at Sr. No, 35 of the said list. Thereafter, meeting of the Departmental Promotion Committee to consider promotion of Commerce and Trade Group Officers from BS-16 to BS-17 was held on 17.09.2005. In this meeting, 37 officers were recommended for promotion on the basis of Seniority-Cum-Fitness. Three officers were deferred by the D.P.C. including the appellant. Reasons for deferment of the appellant recorded in the minutes of the D.P.C. are as follows:-- "Only one ACR earned during last 5 years in BS-16. He was an employee of defunct LIDO. The administrative control of defunct LIDO was transferred from the Ministry of Industries. FST decided the case in his favour and he was given seniority in BS-16 on 20.03.2000 Later on, a petition under Section (12)/2CPC was filed in the FST against the merger of LIDO with EPB which was accepted by the FST. A petition was also filed in the Honourable Supreme Court by the officers of Commerce and Trade Group. Against the seniority given to LIDO employee. The Honourable Court set aside the impugned order of FST and directed the Tribunal to decide the appeal afresh, after affording proper opportunity of hearing the petitioners and other employees of the EPB whose interests are likely to be affected and who wish to be impleaded as party. The matter is sub-judice in the FST."
10.Respondents No, 1 to 3 in their objections also took the plea that the Hon'ble Supreme Court has remanded the case back to the Service Tribunal, as the officers, in the Trade Group felt aggrieved by the decision of the FST." The same reason was recorded in the minutes of the D.P.C. that "a petition was also filed in the Hon'ble Supreme Court by the officers of Commerce and Trade Group against the seniority given to the LIDO employees. The Hon'ble Court set aside the impugned order of FST and directed the Tribunal to decide the appeal afresh."
11. We are constrained to observe that plea of the respondents, is not correct. Correct facts of the case are that the appellant filed an appeal before FST in 1999. The same was accepted. The Hon'ble Supreme Court vide order dated 02.03.2001 dismissed the Civil Petition For Leave To Appeal No, 850 of 2000 and leave declined. So far as the appellant is concerned, his seniority case stood finally decided. Case of the appellant has no nexus with another judgment of FST dated 20.12.2002 and judgement dated 20A.2005 of Hon'ble Supreme Court Thereon. In the judgment of the Hon'ble Supreme Court dated 20.04.2005, respondents had been declared as ex-cadre and surplus and their services were placed at the disposal of Establishment Division vide O.M. dated 24.09.2001 issued by the Federal Government. These respondents preferred appeals which were accepted by the Tribunal, vide judgment dated 20.12.2002. It was the judgment of the Tribunal dated . 20.12.2002, that was set aside and the Tribunal was directed to decide the appeals of the respondents afresh.
Relevant extract of the judgement of the Hon'ble Supreme Court is as follows:- "2. The respondents had originally joined their service in the Leather Industry Development Organization (L.I.D.0). The employees of L.I.D.O were held to be civil servants in the case of Saeed Rabbani versus Director General Leather Industry Development Organisation (PLD 1994 S.0 123).
Therefore, the Ministry of Industries and Production (Industries Wing) issued Notification dated 23.4.1995 accordingly. Their terms and conditions of service are governed by or under the Civil Servants Act, 1973. Subsequently, the Government of Pakistan vide Notifications dated 7.4.1997 and 16.9.1998 merged the L.I.D.O with the Export Promotion Bureau (E.P.B). The respondents, were, however, declared as ex-cadre and surplus and their services were placed at the disposal of the Establishment Division vide O.M. dated 24.9.2001 issued by the Federal Government. Therefore, they preferred service appeals which were allowed by the Tribunal, by the impugned judgment dated 20.12.2002. The petitioners in Civil Petitions No, 334 to 339/2003 were directed to assign seniority and status to the respondents and workout the staff requirement afresh and that if there was surplus staff after combining the EPB and LIDO's employees then the principle of "Last in First-Out' would be strictly applied. Hence these petitions for leave to appeal."
The appellant was neither a party in the above appeals nor was his case subjudice. He was also not declared ex-cadre and surplus and his services were not placed at the disposed of Establishment Division. As admitted by the respondents, he joined EPB as Assistant BS-15 on 10.2.1998. His seniority case was decided on 20.03.2000 and the Hon'ble Supreme Court dismissed leave to appeal against the decision of the FST vide order dated 02.03.2001. Therefore, one of the reasons for deferment of the appellant for promotion to BS-17 is patently not sustainable.
12. The second reason for deferment of the appellant as given in 'the minutes of the D.P.C. meeting held on 17.09.2005 was that the appellant earned only one ACR during last five years in BS-16. This argument has no merit. It was the responsibility of the respondents to complete the PER dossiers of its employees. The Appellant joined. EPB on 10.02.1998. His Performance Evaluation Reports from 1998 to 2004 should have been available with the respondents. In fact they could have also got a special report for the first six months of 2005 written, for consideration before the D.P.C. meeting held on 17.09.2005. The appellant has decidedly been deferred for reasons that are not valid. He cannot be made to suffer for the administrative lapses of the respondents. In this view of the matter, the appeal succeeds and is hereby accepted. The appellant is entitled to promotion in BS- 17 with effect from the date his juniors were promoted.
13. No orders as to cost. Parties be informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.