' FAQIR MUAHMMAD KHOKHAR, J.--- The petitioner and other officers, while serving as Majors in the Pakistan Army, were selected and allocated District Management Group, in the Civil Service of Pakistan vide order, dated 5-7-1989, issued by the Establishment Division, Government of Pakistan.
However, they were not relieved by Pakistan Army. By another letter, dated 24-9-1989, issued by - the Establishment Division, certain army officers were inducted into Police Service of Pakistan (Grade-18) whereas the petitioner was allocated occupational group of Railways. Upon acceptance of his representation, the Establishment Division, by letter, dated 28-7-1992, changed his occupational group and appointed/inducted him into Police Service of Pakistan in terms of Rule 6 of Police Service of Pakistan (Composition and Cadre) Rules, 1985. It was, however, stipulated therein that his seniority in Basic Pay Scale 18 would be reckoned from the date of his induction into Police Service of Pakistan and that he would be governed by Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990. He accepted his induction/appointment on the same day. The Establishment Division, issued Notification dated 4-8-1992 whereby on induction/appointment in the Police Service of Pakistan (BPS-18) he was allocated to Government of N.-W.F.P. He made a representation to the Prime Minister of Pakistan thereby claiming benefit of his three years civil service rendered in Pakistan Railways from 1989 to 1992 towards his seniority as a P.S.P. Officer. The same was rejected on 13-10-1996. Therefore, he preferred Service Appeal No,569 of 1996, before the Federal Service Tribunal, which was dismissed by judgment, dated 22-10-1997.
His Civil Appeal No,1495 was also dismissed by this Court, vide impugned judgment, dated 30-5- 2002. Hence, this review petition.
2. The learned counsel argued that under the existing policy dated 10-2-1980 (as mended) of the Federal Government, on his induction into the civil service, the petitioner was required to be allocated only the District Management Group or Foreign Service Group or Police Service of Pakistan. The error committed by the Government was rectified in the year 1992 in relation to the petitioner who had been illegally allocated Railways Group. Therefore, he could not be deprived of his seniority for the service he had rendered from 1989 to 1992 in Pakistan Railways for which he was not at fault. There was no question of any estoppel against law as his induction from army to civil service was to be made in accordance with the policy framed by the Government. Therefore, his seniority and appointment as a P.S.P. Officer (BS-18) was to be reckoned from 4-10-1989 when he was inducted in the Railways Group. It was lastly argued that there was an error apparent on the face of record in the impugned judgment dated 305-2002 of this Court.
3. On the other hand, the learned Deputy Attorney-General for Pakistan, frankly conceded that the petitioner could not be made to suffer in his career of service merely because the Federal Government had itself committed a mistake of allocating the petitioner to Railways Group instead of Police Service of Pakistan being a serving Army Officer as per its existing policy on the subject.
4. We have heard the learned counsel for the petitioner as well as the learned Deputy Attorney- General for Pakistan at length and have also perused the available record with their assistance.
Previously, there was no regular policy for induction of officers of the armed forces into civil services. It was on 7th March, 1974 that the appointment of one Major Mian Zaheer Ahmed as Superintendent of Police in Grade-18 was made with the approval of the Prime Minister of Pakistan.
He was confirmed as such on 27-10-1976. In the meantime, the then Prime Minister of Pakistan constituted a Special Committee comprising Secretaries of Cabinet, Defence, Labour and Works, Industries and Establishment Division, for the purpose of rehabilitation of defence personnel on their release from service particularly after the return of P.O.Ws. The Committee in its meeting dated 11-4-1974 observed that both serving and retired Army Officers were being considered for posting in the District Management Group, Tribal Pool and the Police. It was decided that the names of suitable officers of the rank of Major and Lieutenant Colonel would be considered for absorption in the Police Service of Pakistan and that even the retired officers of the Armed Forces would be eligible to appear in the lateral entry examination for the senior posts in the Central Secretariat.
5. A number of Army Officers were inducted into the Police Service of Pakistan by Notification dated 15-11-1976. A question of seniority of such Army Officers vis-a-vis other appointees in the Police Service of Pakistan came up for consideration. The President decided that the Army Officers inducted in the Police Service of Pakistan would have their seniority from the date of their induction and not from the date of their regularization. The assignment of seniority to the Army Officers from the date of their induction was upheld by this Court in the case of Jehangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan through Secretary, Establishment Division and others PLD 1990 SC 1013. Needless to observe that even in India, there is practice of vogue for the appointment of defence personnel to civil service of Union and State Governments and their seniority is computed from the date of appointment into the defence service. See the case of G. Rabinathan v. State of Karnataka and others AIR 1995 SC 1474.
6. The Establishment Division issued O.M. No,14/5/78-D.III, dated 10-2-1980, whereby the President was pleased to lay down instructions to regulate the induction of officers of the Armed Forces of Pakistan into the civil service. Admittedly, the petitioner being an Army Officer, on his induction into civil service, could have been allocated only the District Management Group, Foreign Service Group or Police Service of Pakistan as per revised policy instructions issued by the Establishment Division vide O.M. No,1/19/80(PT.)/C.P.-V dated 1-3-1982. The Federal Government itself realized and rectified its mistake by accepting his representation for his induction in the Police Service of Pakistan in the year 1992 but refused his due place of seniority. There was no legal justification for the Government to deprive him of is seniority as a P.S.P. Officer from the date he was inducted in grade-18 but was wrongly allocated the Railways Group. The discriminatory treatment vis-a-vis other similarly placed Army Officers could not be meted out to him particularly when he was not at fault.
7. It would be useful to reproduce the following observations made by late Mr. Justice B.Z. Kaikaus, a former Judge of this Court, in the case of Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 at page 400:-- "I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which E our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his.I am unable to place the mistake committed by the Administration on the same footing as mere accidents. The difference is that in one case the harm caused to a party being the result of a mistake committed by the Administration there is an obligation on our part to undo it as far as that is possible. There is no such obligation in the case of an accident. In relation to Courts there is a well-known saying that the act of Court will not prejudice anybody. I do not see why the principle of this maxim does not apply to the whole machinery of the Administration of which the Courts are only a part. No mistake committed by this machinery should prejudice any person as far as that can be helped.... It cannot be the intention of the law that rights of persons should be affected by the mistake committed by Public Officers... We must put the parties in the same position as they would have been if no mistake had been committed by the administration as long as we can do that."
8. Reference may also be made to the case of Islamic Republic of Pakistan v. Abdul Qadir Haye and others 1981 SCM R 501. Mr. Abdul Qadir Haye, basically a member of Police Service of Pakistan, was suspended from service. However, on his reinstatement he was posted out of Police Service of Pakistan and were allocated another group namely Office Management Group. His lien in the Police Service was also terminated. He represented against the termination of his lien whereupon the President of Pakistan was pleased to transfer him to the Police Service of Pakistan and to restore him to the same position in the Police Service of Pakistan. In the meantime, some Provincial Police Officers were absorbed in the Police Service of Pakistan and was promoted to Grade-19 in preference to Mr. Haye. He successfully challenged their promotion before the Federal Service Tribunal. It was held that he was entitled to be considered for promotion along with his other batch mates and by ignoring him the error was committed when his other batch mates were promoted.
Therefore, a direction was issued for consideration of his promotion case as well. This Court affirmed the judgment of the Federal Service Tribunal.
9. In our view, the petitioner was entitled to have his seniority as P.S.P. Officer (Grade-18) reckoned from the date he was inducted in civil service in Grade-18 in the year 1989 in terms of para.15 of Establishment Division O.M.No,14/5/78-D.III, dated 10-2-1980 as if he had been originally allocated the Police Service of Pakistan. In the peculiar facts and circumstances, the Occupational Groups and Service (Probation, Training and Seniority) Rules, 1990, would not come in his way. The impugned judgment merits to be reviewed.
10.For the foregoing reasons, this civil review petition and Civil Appeal No,1495 of 1999 are allowed.
The impugned judgment dated 30-5-2002, passed by this Court and judgment, dated 22-10-1997 passed by the Federal Service Tribunal are set aside. Consequently, the petitioner would be assigned seniority as a P.S.P. Officer (BS-18) from the date he had been allocated the Railways Group. No order as to costs.