CH. IJAZ AHMED, J.---We intend to decide the captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment.
2. Respondents, namely, Amir Mujahid Khan, Shahid Hussain, Lt. Col.(R) M. Amjad, Major (R) Abdul Jabbar Tareen and Ghulam Hussain Khoso joined Intelligence Bureau in the year, 2005 as Deputy Directors (BPS-18) through Federal Public Service Commission on 1-8-2005. Prior to their appointment in the Intelligence Bureau all these respondents were serving in Pakistan Army/Inter Services Intelligence. A meeting of the Departmental Promotion Committee was convened on 18- 8-2005 to fill the 37 vacant posts of Deputy Directors of departmental promotion quota in terms of general instructions regarding promotion contained in Serial No,147 at pages 220 and 221 of the ESTACODE, Edition 2000. Accordingly, 42 senior-most Assistant Directors were considered in accordance with their order of seniority in BPS-17. Private respondents Nos.2 to 4 and 6 to 14 (in C.A.No, 710 of 2009 and Nos.2 to 13 in C.As. Nos.711 to 714 of 2009) were promoted as Deputy Directors on acting charge basis against the vacant posts of promotion quota with immediate effect and until further orders vide Notification dated 18-8-2005. Respondents Malik Zafar Iqbal, Muhammad Afzal Shaikh, Abdul Aziz, Muhammad Nasir Mahmood, Arshad Jan, Hamidullah Khan, Saqlain Ahmad, Mukhtar Ahmad, Muhammad Aslam Khan, Fazal-ul-Haq, Nasir Habib, Ikram-ul-Haq, Saif- ur-Rehman, Ijaz Ali and Imtiaz Ali, Assistant Directors of Intelligence Bureau were promoted as Deputy Directors against the vacancies of promotion quota with immediate effect and until further orders vide notification dated 18-8-2005. Assistant Directors, who were promoted as Deputy Directors on acting charge basis vide notification dated 18-8-2005, were subsequently promoted as Deputy Directors against the vacancies of promotion quota with immediate effect and until further orders vide notification dated 11-8-2006. Government of Pakistan, Intelligence Bureau, Islamabad, issued provisional gradation list of Deputy Directors (BS-18) in the Intelligence Bureau vide memo. Dated 26-5-2007. Aamir Mujahid Khan and other respondents being aggrieved filed representations against the provisional seniority/gradation list which were dismissed. They filed Service Appeals Nos.739(R)CS/2007, 740(R)CS/2007, 741(R)CS/2007, 742(R)CS/2007 and 16(Q)CS/2007 before the Federal Service Tribunal, Islamabad. The learned Service Tribunal accepted the appeals vide impugned judgment dated 31-12-2008. Present appellants being aggrieved filed petitions before this Court which were fixed on 4-6-2009 and the leave was granted in the following terms:- "The question involved in these cases, is the seniority of three categories of employees vis-a-vis: the first category is of those employees who were promoted to grade 18 prior to the appointment of the direct recruitees; the second category is of the direct recruitees; and the third category is of the promotees who were promoted on acting charge basis as they were not qualified for the appointment like the first category on account of their incomplete length of service, which question assume more importance in view of the contention raised by the learned counsel for the respondents that even the earlier promotees were not eligible for promotion as their length of service required for grade 18 was not complete in grade 17 but their length of service in grade 16 was included, which under the law cannot be."
3. The learned counsel for the appellants (in C.As. Nos.710 to 714 of 2009) submit as under:--
(i) The learned Service Tribunal erred in law to accept the appeals of the respondents by relying upon the instructions contained in Serial Nos.147, 148 and 151 published in ESTACODE, Edition 2000 at pages 220 to 227.
(ii) Service Tribunal also erred in law to accept the appeals of the respondents in violation of the general guidelines published in ESTACODE at pages 233-234.
(iii) Rule 8-B(2) was deleted vide S.R.O. No, 269(1)/2000 on 19-5-2000, therefore said instructions are no more in the field and not in consonance with the provisions of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
(iv) The learned Service Tribunal had decided the cases in violation of Rule 3 of Civil Servants (Seniority) Rules, 1993.
(v) The impugned judgment is not in consonance with the law laid down by this Court in various pronouncements.
' They have relied upon the following judgments:--
(a) Muhammad Gulshan Khan's case (PLD 2003 SC 102), (b) Ch. Muhammad Saleem's case (1994 SCMR 517), (c) Fasihuddin Siddiqui's case 1998 SCMR 637 and (d) Luqman Zareen's case (2006 SCMR 1938).
(vi) Assistant directors who were promoted on acting charge basis vide notification dated 18-8- 2005 were senior to the Assistant Directors who were promoted as Deputy Directors on permanent basis vide another notification dated 18-8-2005, therefore, cases of the respondents were considered by the Departmental Promotion Committee and were rightly deferred in terms of the afore-said instructions and rules on the subject.
4. Hafiz S.A. Rehman, Senior Advocate Supreme Court, appearing on behalf of the appellants (in C.As. Nos. 715 to 719 of 2009) adopted the arguments of the learned counsel of the appellants (in C.As. Nos.710 to 714 of 2009).
5. Learned counsel for the respondents submit that competent authority with mala fide did not issue the seniority/gradation list for one and a half year without any justification till the Assistant Directors, Intelligence Bureau, who were promoted on acting charge basis, have acquired requisite length of service. Thereafter, they were appointed permanently as Deputy Directors; therefore, action of the appellants is without lawful authority. The learned Service Tribunal was justified to decide the cases in their favour. The impugned judgment is in accordance with the instructions and rules on the subject and law laid down by this Court in various pronouncements. He has relied upon Nazeer Ahmed's case 2001 SCMR 352=2001 PLC (C.S.) 394 and Muhammad Yousaf's case 1996 SCMR 1297. He further urges that their services in grade 16 and grade 17 were counted properly by the Service Tribunal in terms of instructions appearing at Serial No,148(3) of the ESTACODE, Edition 2000. Minutes of the meetings were also relied upon by the counsel of the private respondents and he supported the impugned judgment.
6. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the relevant provisions of the Civil Servants Act, 1973, Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Civil Servants (Seniority) Rules, 1993 and relevant paragraphs from ESTACODE along with relevant notifications to resolve the controversy between the parties:-- Civil Servants Act, 1973.
8. Seniority.-- (1) For proper administration of a service, cadre of post, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
(2) Subject to the provision of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or cadre, whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.
(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: ' Provided that, civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post.
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
8.B. (1) Where appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre of service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(2) So long as a civil servant holds the acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post. Omitted with S.R.O. 269(1)/2000 dated 19-5-2000.
(3) In the case of a post in basic pay scales 17 to 22 and equivalent, reserved under the rules to be filled by initial appointment, where the appointing authority is satisfied that no suitable officer drawing pay in the basic pay scale in which the post exists is available in that category to fill the post and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organization, cadre or service, as the case may be, in excess of the promotion quota.
(4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more. Against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.
(5) Appointment on acting charge basis shall be made on the recommendations of the Departmental Promotion Committee or the Central Selection Board, as the case may be, save in the case of post in basic pay scale 22 and equivalent.
(6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority.
(7) Acting charge appointment shall not confer any vested right for regular promotion to the post held on acting charge basis.
Civil Servants (Seniority) Rules, 1993.
3. Seniority on promotion.---Seniority in a service cadre, or post to which a civil servant is promoted shall take effect from the date of regular promotion to that service cadre or post. Provided that:--
(a) civil servants selected for promotion to higher posts on an earlier date shall be senior to those selected for such promotion on a later date;
(b) civil servants selected for promotion to higher posts in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post; and
(c) civil servants eligible for promotion who could not be considered for promotion in the original reference in circumstances beyond their control or whose case was deferred while their juniors were promoted to the higher post, shall, on promotion, without supersession, take their seniority with the original batch.
(6) Inter se seniority of civil servants appointed in the same calendar year.--Persons appointed by transfer in a particular calendar year shall, as a class, be senior to those appointed by promotion or by initial appointment to such posts in that year, and persons promoted to higher posts in a particular calendar year shall, as a class, be senior to those appointed by initial appointment to such posts in that year.
ESTACODE Edition 2000 SI. No,147 Sequence in departmental promotions and direct recruitment.- Reference.-Establishment Division Office Memorandum No,15/38/52-SEII, dated the 22nd June, 1953 (Annexure)
' The replies received from the Ministries and Divisions on the suggestions contained in the above Memorandum have been considered and, in order to ensure that candidates rejected by the Federal Public Service Commission in open competition or selection should not be absorbed in vacancies meant for departmental quotas, it has been decided that the following procedure should be adopted in future:-
(i) Where a cadre has definite quotas reserved for departmental promotions and direct recruitment, promotions against the departmental quota, should be made first and the posts reserved for direct recruitment filled later. These orders, however, will have no effect on those cadres where recruitment is made solely by direct recruitment or where all appointments are made only by promotion;
(ii) Necessary provision regarding the above should be made in all recruitment rules already framed or framed hereafter; and
(iii) In the case of isolated posts, a roster should be maintained in each Ministry and Division to ensure the observance of the prescribed percentage for departmental promotions and direct recruitment.
SI. No:148 Minimum length of service for eligibility for promotions for various grades.---In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division's 0.M.No,1/9/80 R.II(A), dated the 12th January, 1981, (Annexure), the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:- For Grade 18 5 years in Grade-17 For Grade 19 12 years in Grade-17 and above For Grade 20 17 years in Grade 17 and above For Grade 21 22 years in Grade 17 and above ' Provided that:--
(i) Where initial appointment of a person not being a person in government service takes place in a post in BPS-18, 19 or 20 the length of service specified in the Office Memorandum shall be reduced by the following periods:-- First appointment inReduced by Grade-18 5 years Grade-19 12 years Grade-20 17 years
(ii) Where initial appointment or a person already in government service takes place, on recommendations of the Federal Public Service Commission, in a post in BPS-18, 19 or 20, the length of service specified in this Office Memorandum shall be reduced by the periods specified in proviso (i);
(iii) Where first appointment of a person other than a person covered by proviso (ii) was made to government service in BPS-16 or below, one half of the service in BPS-16 and one fourth in BPS-15 and below may be counted as service in BPS-17 for computing length of service for the purpose of promotion only.
Guidelines for Departmental Promotion Committees/Central Selection Boards.
1. General ' The DPC/CSB shall consider the cases of eligible civil servants in order of seniority and either:-- (c)(iv) the civil servant does not possess the requisite length of service; or
7. It is settled proposition of law that department promotees would be regarded senior to direct recruitees of the same year as per rule 6 of Seniority Rules, 1993. There are several pronouncements of this Court to IB this effect including the following judgments:--
(i) Fasihuddin Siddiqui's case (1998 SCMR 637).
(ii) Muhammad Yousaf's case (1996 SCMR 1297).
(iii) Rustam Khan's case (1994 SCMR 1957).
' It is also settled principle of law that seniority is not vested right as law laid down by this Court in the following judgments:--
(i) Muhammad Zakir Khan's case (2004 SCMR 497).
(ii) Jehangir Mirza's case (PLD 1990 SC 1013).
It is also settled principle of law that "seniority" in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade. It is also settled principle of law qua the question of conferring seniority with retrospective effect is concerned that cannot be done unless such right was established. There are several pronouncements of this court that regularization of seniority from the Cretrospective date is not permitted and is beyond the power of Government. See Wajahat Hussain's case (PLD 1991 SC 82), Sh. Anwar Hussain's case (1985 SCMR 1201), Muhammad Yousaf's case (1996 SCMR 1297) and Nazeer Ahmed's case (2001 SCMR 352=2001 PLC(C.S.) 394). It is also settled principle of law that civil servants who were senior in lower grade would retain inter se seniority in higher grade in case they were promoted in a batch. It is an admitted fact that respondents Nos.2 to 4 and 6 to 14 (in C.A.No, 710 of 2009 and Nos.2 to 13 in C.A.Nos.711 to 714 of 2009) were considered for promotion by the DPC in its meeting held on 18-8- 2005 who were not promoted as their length of service was less than 5 years which was the condition precedent for their promotion in Grade 18 meaning thereby that they are not eligible for promotion whereas remaining private respondents were promoted by the DPC vide separate notification of the said date as their length of service and other conditions/requirements of the criteria were fulfilled. Therefore, respondents who were not deferred but were appointed on acting charge basis. It is an admitted fact that appellants/competent authority had not circulated seniority list till the length of service of the afore-said respondents was completed as required under the law. They were promoted subsequently on permanent basis vide notification dated 11-8- 2006 from the date of their assuming charge of the post of Deputy Director on acting charge basis.
The sole question for our determination is that in such situation whether these respondents regained original seniority on subsequent promotion so long the order of the DPC dated 18-8-2005 remains in the field. This fact D brings the case of the afore-said respondents that they were considered and were not promoted on permanent basis due to lack of requisite length of service, therefore, they could not be granted seniority from the original date of their consideration for promotion. See Abdul Ghani Chaudhry's case 1998 PLC (C.S.) 1278. It is pertinent to mention here that respondents who were promoted on permanent basis as they had requisite length of service in their grade as mentioned above. Therefore respondents who had filed appeals before the Federal Service Tribunal, as they were fresh appointees through Federal Public Service Commission, therefore, they are not senior to respondents who were promoted on permanent basis in the same year on 18-8-2005 in terms of the law laid down by this Court mentioned hereinabove read with rule 6 of the Seniority Rules, 1993 whereas respondents who were considered in the year 2005 but they were not deferred as they were not eligible for promotion and in fact as mentioned above they were promoted and appointed as Deputy Director on acting charge basis, therefore, they could not be senior to the fresh appointees as they were not promoted in the same year. It is no doubt that if the promotion of a civil servant is deferred without any fault on his part he can be given promotion from ante date when their juniors were promoted. See Muhammad Jan Marwat's case (1997 PLC (C.S.) 512). It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this court in Trustees of the Port of Karachi's case (1994 SCMR 2213). The case of the respondents, who were posted/appointed on acting charge basis, is entirely on different footing as mentioned above as they were considered and promoted on current charge basis because they were not eligible for promotion due to lack of length of service.
8. In view of what has been discussed above appeals are partly accepted to the extent of respondents who were not promoted on permanent basis but were appointed on acting charge basis and partly dismissed to the extent of respondents who were promoted on permanent basis.
In simple word fresh appointees are juniors to the departmental appointees who were promoted in the same year by DPC in its meeting held on 18-8-2005 whereas they were senior to the promotees who were promoted in the subsequent year, 2006. It is also settled principle of law that inter se seniority of the promotees cannot be decided in these proceedings on well known principle that their inter se sonority is not in issue before us, therefore, issue qua their inter se seniority cannot be decided in collateral proceedings as law laid down by this court in Sabir Shah's case (PLD 1994 SC 738).
9. In view of what has been discussed above the appeals are disposed of in the afore-said terms.