' M. JAVED BUTTAR, J.--- This petition is directed against the judgment, dated 18-6-2008 passed by Federal Service Tribunal, Islamabad whereby appeal filed by respondent No,1, Mian Muazzam Shah challenging/assailing the seniority list issued by respondent No,2 on 5-10-2005, was allowed. And respondent No,1 was declared to be senior to the petitioner and respondents Nos.3 and 4. It was also held that respondent No,1 would be entitled to all consequential benefits including consideration for promotion on the basis of seniority assigned to him in the list, dated 6-5-2003.
2. Relevant facts are that on 21-5-1998 F.P.S.C. Recommended the appointment of petitioner, respondents Nos.3 and 4 one Riaz Ahmed and five others for direct appointment as Director, Non- technical (BS-19), Population Welfare Division, Government of Pakistan. On 1-10-1998, the Establishment Division made appointment only of the said Riaz Ahmed as Director (non-Technical) being first in the merit. On 30-10-1998, Secretary Population Welfare Division, Government of Pakistan sent a summary to Secretary, Establishment Division, Government of Pakistan for approval of appointment of rest of the recommendees of F.P.S.C. In the meanwhile, petitioner and other recommendees also instituted Writ Petition No,2642 of 1998 before the Lahore High Court, Rawalpindi Bench for implementation of recommendations of F.P.S.C. However, during the pendency of their writ petition, the petitioner and respondents Nos.3 and 4 were appointed as Directors (BS-19) on 28-8-1999. On 29-12-1999 respondent No,1, Mian Muazzam Shah was promoted as Director, (BS-19) and in the provisional seniority list issued on 1-7-2002, being a promotee in the same calendar year, he was shown senior to petitioner and respondents Nos.3 and 4 and in the final seniority list issued on 25-4-2003 and conveyed on 6-5-2003, he was shown as senior to petitioner and respondents Nos.3 and 4. On 9-1-2003 petitioner's department sent a summary to Secretary, Establishment Division for appointment of rest of the recommendees and also posed a query in para.14 of the summary in regard to the seniority of those who were not appointed along with Riaz Ahmed, but were recommendees of F.P.S.C. In the same batch. Final seniority list issued on 25-4-2003, conveyed on 6-5-2003 shows that respondent No,1 being a promotee was considered as senior. However, again clarification to the same effect was sought from Law and Justice Division on 11-12-2003 and within four days i,e, on 15-12-2003 the Law and Justice Division tendered its advice which reads as under:-- ' D.M.-II/D.M.-I, 13-12-2003.
(6) The moot point in this reference is as to whether amendment in Article 27 of the Constitution of the Islamic Republic of Pakistan made through the Constitution (Sixteenth Amendment) Act, 1999 (VII of 1999) is prospective in operation or not. In this connection it is pointed out' that substitution of the word "twenty" by the word "forty" was made through the aforesaid Act and it was provided that the aforesaid word "forty" shall be substituted and shall be deemed always to have been so substituted, meaning thereby that the amendment made by the Constitution (Sixteenth Amendment) Act, 1999 will be retrospective in operation and shall be deemed to have taken effect accordingly.
(Sd.) (Muhammad Azam Warraich) Draftsman. 15th December, 2003."
3. On 23-9-2004 Secretary, Population welfare Division ordered assignment of seniority of petitioner of respondents Nos.3 and 4 over respondent No,1 by declaring the petitioner and respondents Nos.3 and 4 as belonging to the batch of 1998 and respondent No,1 as promotee of year 1999. However, in the next seniority list issued on 17-1-2005 respondent No,1 was again shown as senior to petitioner and respondents Nos.3 and 4 as being promotee of same calendar year in which petitioner and respondents Nos.3 and 4 were appointed. On 28-1-2005, petitioner represented against the said seniority list. On 5-10-2005 another seniority list was issued in which the petitioner and respondents Nos.3 and 4 were shown as senior to respondent No,
1. Being aggrieved thereby respondent No,1 filed a departmental appeal and as the same was not responded, he filed Service Appeal No,195(R)
(C.S.) of 2006 before the Federal Service Tribunal, Islamabad which, as mentioned above vide its judgment, dated 18-6-2008 accepted the said appeal and held that respondent No,1 was senior to petitioner and respondents Nos.3 and 4 in the seniority list of BS-19 Non-Technical Officers and set aside the seniority assigned to petitioner and respondents Nos.3 and 4 over and above respondent No,1 in the seniority list issued on 5-10-2005. Hence this petition for leave to appeal.
4. We have heard the learned Senior Advocate Supreme Court for the petitioner at length and have also seen the available record with his able assistance. It may also be mentioned that the petitioner in the meanwhile is alleged to have been promoted to BS-20 on 5-3-2008.
5. It is submitted that 9 persons were selected for direct recruitment by F.P.S.C. On 21-5-1998 and one Riaz Ahmed was placed at Serial No,1 on the merit list and he was appointed on 1-10-1998 and the petitioner and respondents Nos.3 and 4 were also amongst those 9 persons who were selected by F.P.S.0 on 21-5-1998, however, as they were selected for initial appointment against posts which were reserved for appointments in Provincial/other quota and since the period given in Article 27 of the Constitution during which appointments against various quota could be made by the Government, expired, therefore, the appointments of the petitioner and respondents Nos.3 and 4 could not be made in 1998 and their appointments were made on 30-8-1999, 8-9-1999 and 13-9- 1999 when the said period was extended through the constitutional amendment, hence, it was none of their fault which resulted in a delay of more than 1 year in their appointment; that Riaz Ahmed of their batch was appointed in 1998 on the basis of merit, the petitioner and respondents Nos.3 and 4 who belongs to the same batch, had to be given the seniority position immediately after him and none could be placed in between Riaz Ahmed and them. Reliance in this regard has been placed on Rule 2 of the Civil Servants (Seniority) Rules, 1993 which deals with inter se seniority in the same batch. It has also been argued that /since the appointments of the petitioner and respondents Nos.3 and 4 were delayed due to no fault on their part, they shall be deemed to have been appointees of the year 1998 in which the said Riaz Ahmed was appointed as he belonged to their batch. It has further been argued that the seniority lists issued on 6-5-2003 and 17-1-2005 were erroneous and Ministry of Population Welfare, had the right to correct the mistake in consultation .With Establishment Division and Ministry of Law, hence the final seniority list dated 5- 10-2005 was competently and lawfully issued and Federal Service Tribunal, Islamabad illegally interfered with the same.
6. The arguments of the learned Senior Advocate Supreme Court have no force and this petition has no merit. In the seniority list dated 6-5-2003, respondent No,1 who was a promotee, was assigned seniority above the petitioner( and respondents Nos.3 and 4, in accordance with the provisions of Rule 6 of the Civil Servants (Seniority) Rules, 1993. He was promoted in the same calendar year i,e, 1999 in which the petitioner and respondents Nos.3 and 4 were appointed by initial appointment. The said rule relates only to the actual dates of promotion and appointment for purposes of assignment of seniority and does not consider other factors like the dates of recommendations or selections made by F.P.S.C. There is no law under which the petitioner and respondents Nos.3 and 4 can be deemed to have been appointed in the year 1998 when they were merely recommended and selected for appointments by F.P.S.C. They were appointed from the above mentioned dales specified in their appointment letters in the year 1999. As far as Rule 2 of Civil Servants (Seniority) Rules, 1993 is concerned, which has been relied upon by the learned Senior Advocate Supreme Court for the petitioner, it lays down the principle for determination of inter se seniority of those who are appointed by initial appointment in the same batch. It is not related to seniority of promotees v. Appointees by initial appointment for which the relevant rule is Rule 6 of the above Rules. Therefore, the action of the respondent - Ministry in revising the seniority list dated 6-5-2003 through seniority list dated 5-10-2005 was against the law and the Rules. It is also observed that the promotion of the petitioner in the meanwhile to BS-20 or for that matter the promotion either of respondents Nos.3 and 4 in the meanwhile to BS-20 would not change the fact that respondent No,1 is senior to them.
7. In view of the above mentioned, we find no merit in this petition which is dismissed and leave refused.