' ANWAR ZAHEER JAMALI, J.---All the above titled civil appeals under Article 212(3) of the Constitution of Islamic Republic of Pakistan 1973, with leave of the Court in terms of the order dated 27-3-2012, are directed against the common judgment dated 2-12-2011, passed by Federal Service Tribunal Islamabad ("Tribunal").
2. Earlier, the private respondents herein, through Service Appeal No,153 l(R)CS/2011 and ten other connected appeals of similar nature, instituted before the Tribunal in the year 2011, had agitated their grievance regarding revised seniority list dated 2-6-2011 qua inter se seniority with the officers of the same grade from other Group after their appointment by way of transfer in the newly created Inland Revenue Service Group, established as per Office Memorandum No,6/2/2009-CP-II, dated 12-9-2009 (O.M.), which were decided/disposed of by the Tribunal in their favour in terms of paragraph 23 of the impugned judgment.
3. Since the controversy raised in these appeals mainly revolves around the terms of above referred 0.M., and its interpretation/application, therefore, as a first step, before proceeding further it will be useful to reproduce the same as under:-- "Government of Pakistan Cabinet Secretariat Establishment Division No,F.6/2/2009-CP-II Islamabad dated the 12th September, 2009 Office Memorandum ' Subject:- TAX ADMINISTRATION REFORMS REORGANIZATION OF FEDERAL BOARD OF REVENUE CREATION OF NEW OCCUPATIONAL SERVICE NAMELY INLAND REVENUE SERVICE.
' In terms of S. No, 10.2.(i) of Schedule-II of Rules of Business, 1973 and in continuation of this Division's O.M. No,5/2/75-ARC dated 9-5-1975 and O.M. No,4/2/75-ARC dated 9-5-1975, the undersigned is directed to say that in view of the ongoing Tax Administration Reforms that include reorganization of Federal Board of Revenue, it has been decided to create a new Occupational Service namely Inland Revenue Service with immediate effect.
(2) All the business concerning Income Tax, Sales Tax and Federal Excise currently being done by the officers and staff of Income Tax and Customs and Excise Groups is transferred to the new Inland Revenue Service. Existing Customs and Excise Group will be renamed as Pakistan Customs Service.
(3) Federal Board of Revenue shall seek from each officer and staff of the existing Customs and Excise Group and Income Tax Group an irrevocable option for inclusion or otherwise into the new Inland Revenue Service. Such option once exercised shall be final. In order to facilitate the officers in this process, FBR shall apprise each officer (1) the number of posts which would form part of the new occupational service (2) upon option, the seniority in the new service shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time.
(4) Upon receipt of requisite options, Federal Board of Revenue shall proceed as under:-
(a) Scenario-I ' In case, some officers from the Customs and Excise Group and some officers from the Income Tax Group opt for Inland Revenue Service, the shortage of the Inland Revenue Service shall be met by posting of officers of Customs Group and defunct Income Tax Group under section 10 of the Civil Servants Act, 1973.
' Depending upon number of options to be exercised by the officers of Customs and Excise Group and Income Tax Group, the tentative cadre strength of new Inland Revenue Service and Pakistan Customs Service may be as under (i,e, equivalent to existing combined strength of the Income Tax and Customs and Excise Groups):- ' New Inland Revenue Service Functions Federal Excise Sales Tax Income Tax Total Pakistan Customs Service Functions Customs Officers 218 978 1196 Officers 218 ' Upon completion of exercise of options, the exact cadre strength shall be finalized by the Establishment Division in consultation with Revenue Division.
(b) Scenario-II In case all the officers of the Customs and Excise Group and Income Tax Group opt for new Service, the Service be renamed as "Pakistan Revenue Service" with common seniority and doing all the revenue and tax business. All officers would be part of one cadre. The tentative cadre strength of new service may be as under (i,e, equivalent to existing combined strength of the Income Tax and Custom and Excise Groups):- Functions Officers Fed. Excise 218 Sales Tax Income Tax 978 Customs 218 Total 1414 ' Upon completion of exercise of options, the exact cadre strength shall be finalized by the Establishment Division in consultation with Revenue Division.
(5) In both the scenarios mentioned in para-4 above, the Income Tax Group officers not opting for the new service, will remain in the existing Income Tax Group which will be a defunct and dying cadre without any future intake.
(6) The inter se seniority of the officers of existing Income Tax and Customs and Excise Groups exercising options for inclusion in the new Pakistan Revenue Service or Inland Service, as the case may be, shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority)
Rules, 1993, as amended from time to time.
(7) Other measures shall be taken as under:--
(a) All the existing posts currently forming part of Income Tax Group as well as those meant for federal excise business but currently forming part of Customs and Excise Group shall form part of the new Inland Revenue Service with immediate effect. The said posts will, however, be transferred to the new Service upon completion of exercise of option.
(b) Further recruitment to the existing Income Tax Group is stopped.
(c) Effective from 2009, fresh recruitment to the newly constituted Inland Revenue Service or Pakistan Revenue Service as the case may be, shall be initiated through Federal Public Service Commission.
(8) Establishment Division's O.M. No,5/2/75-ARC dated 9-5-1975 and 0.M.No,4/2/75-ARC dated 9-5- 1975 regarding constitution of existing Income Tax and Custom and Excise Groups shall be deemed to have been modified to the above extent. In case of inconsistency between the provisions of said 0.M.s dated 9-5-1975 and this O.M., the provisions of this O.M. Shall have the overriding effect.
(9) To overcome the difficulties and interpretation of the methodology an Anomaly Committee is constituted comprising Additional Secretary-II, Establishment Division, Chairman Federal Board of Revenue and Additional Secretary, Law and Justice Division whose interpretation shall be final subject to approval of Establishment Division.
(10). The Anomaly Committee and all others concerned shall ensure that the decisions contained in this O.M. Do not create any administrative complications. Sd/- (Munir Ahmed)
Joint Secretary (CP-H)"
4. In the above background, other facts relevant for better understanding of the case of the present appellants relating to their seniority dispute with the officers of same grade appointed by way of transfer from other service group, in the Inland Revenue Service Group, are that in response to the voluntary option for joining the newly created Inland Revenue Service, in line with the O.M., about nine hundred and twenty officers from Grade 17 to Grade 21 from the Income Tax Group, and fifty seven officers of different grades from the Customs and Excise Group (renamed as Pakistan customs Service) had exercised their options for appointment in it through transfer. Upon their appointments in the Inland Revenue Service, provisional seniority list of officers was accordingly prepared on 10-11-2010, while final seniority list of these officers in Inland Revenue Service was prepared on 14-12-2010. The officers, including some of the appellants, aggrieved by this final seniority list made complaints/applications to the concerned quarters/establishment Division, which constituted a high-powered committee to entertain their objections and finalized the matter. The proceedings and recommendations of this High Powered Committee resulted in the preparation of revised seniority list dated 2-6-2011. This list was challenged by the private respondents, who were appointed in the Inland Revenue Service on transfer basis from the other group, before the Tribunal, inter alia, on the grounds that principles of natural justice were violated as no opportunity of hearing was afforded to them, the proceedings were without any statutory backing, arbitrary and suffered from many other legal infirmities. These appeals were heard and finally disposed of by the Tribunal in terms of paragraph 23 of the impugned judgment, which reads as follows:-- "(23) The upshot of findings above is:--
(i) that not only the misc. Petitions filed by the appellants for stay order are decided, the appeals are also decided since all the questions/objections taken by the respective parties are resolved;"
(ii) that no civil servant can claim seniority as of right under section 8 of the Civil Servants Act, 1973 nor can file appeal in the Federal Service Tribunal for promotion under proviso (b) to section 4(1) of the Service Tribunal Act, 1973;
(iii) that a civil servant can file an appeal in the FST that he be considered for seniority/promotion in accordance with rules/law.
(iv) That the appellants are justified in claiming that they are entitled to be considered for promotion/seniority on the basis of their present appointments;
(v) That the seniority list dated 2-6-2011 impugned in the present appeals, is not valid being against the rules and only provisional in nature whereas list dated 14-12-2010 is quite valid;
(vi) That rules are to be framed for seniority when the dates of promotion are the same, dates of birth are the same and even the qualifications are the same;
(vii) That applications for grant of stay order and applications for vacation of such orders are to be filed strictly in accordance with law; (viii)That normally stay order cannot be issued without notice but there is no legal bar in that respect since FST has been established under Article 212 of the Constitution and its powers in that regard are 'co-extensive' in service matters with the powers of other constitutional courts;
(ix) That the Government/FBR is fully competent to decide this assertion of the appellants and respondents that some promotions have already been made in violation of seniority, rules and even the aggrieved parties can seek remedy in appropriate forum;
(x) that the stay order issued by the Tribunal shall not be operative against the appellants admittedly senior to the respondents and against the respondents admittedly senior to the appellants; and that the FBR/Government may make promotions on the principle of seniority discussed above and the embargo imposed by the FST in that regard is lifted."
5. To put it in few words, by this judgment the Tribunal rejected the revised seniority list dated 2-6- 2011 and restored the earlier one dated 14-12-2010, with certain directions.
6. All the appellants before us, aggrieved by the above-referred judgment of the Tribunal, have therefore, challenged it, inter alia, on the ground that the relevant provisions of Civil Servants (Seniority) Rules 1993 ("the Rules of 1993") and Civil Servants Act 1973 ("the Act of 1973") were not properly examined before being pressed into service, which resulted in great injustice with them and made them junior in the seniority list to many officers from the other occupational group, who had joined Government service in the subsequent years and were thus, much junior to them in length of service.
7. Before we proceed to record the ,arguments of the learned ASCs advanced before us, it will be advantageous to reproduce some relevant paragraphs of the impugned judgment, whereby the Tribunal addressed similar grievances of the appellants and repelled their claim and that of other officers of Income Tax Group of Grade-19 and 20 in similar position. The same read as under:-- "(8) The Federal Board of Revenue had laid down the rule governing the promotion of officers of both the cadres in its aforementioned Memorandum dated 12-9-2009. This rule is incorporated in paras 3 and 6 of the O.M. Both these paras are reproduced in verbatim:- "3. Federal Board of Revenue shall seek from each officer and staff of the existing Customs and Excise Group and Income Tax Group an irrevocable option for inclusion or otherwise into the new Inland Revenue Service. Such option once exercised shall be final. In order to facilitate the officers in this process, FBR shall apprise each officer (1) the number of posts which would form part of the new occupational service (2) upon option, the seniority in the new service shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time."
"6. The inter se seniority of the officers of existing Income Tax and Customs and Excise Groups exercising options for inclusion in the new Pakistan Revenue Service or Inland Service, as the case may be, shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority)
Rules, 1993, as amended from time to time."
(9) It shall be appreciated that the abovementioned rule is same as is incorporated in Civil Servants (Seniority) Rules, 1993. Rule-4 of the said Rules is also reproduced for the sake of convenience:--
4. Seniority on appointment by transfer.---Seniority in service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post: Provided that
(a) xxx xxx xxx
(b) xxx xxx xxx (Parenthesis is ours)
(10) It shall thus be seen that rule of promotion mentioned in the said Memorandum and rule-4 of 1993 Seniority Rules are the same. The dispute between the parties has to be decided on the basis of this rule and on no other rule.
(11) Mr. Saeed Ahmed Zaidi, Advocate and Mr. Asaf F. Vardag Advocates, counsel for the respondents, have argued that the paras mentioned in the O.M. Dated 12-9-2009 cannot be treated as a rule governing the inter se seniority of the parties. Their submission is that Government is required to frame specific rules in that regard since Inland Revenue Service is a new service group. Their argument has not impressed us. The Inland Revenue Service Group comprises of the civil servants and for civil servants Seniority Rules have already been framed in 1993. The same rules shall apply to the parties also. The Government is not required to frame fresh rules in that regard. They are pleading rule of seniority on the basis of age and in the same breath they are taking a contradictory stand that rules of seniority for the new service are to be framed. This shows the fallacy of their argument.
(12) Even if this' contention of Mr. Saeed Ahmed Zaidi, Advocate and Mr. Asaf F. Vardag Advocate that the induction of the parties in the new service group shall tantamount to initiate appointment is considered the respondents shall not get any benefit from it. In section 8(3) of Civil Servants Act, 1973 it is clearly stated that seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed. In the O.M. Dated 12-9-2009 the rule for fixation of seniority has been prescribed and the rule is that the parties who have entered into new service group are to be assigned seniority under the 1993 Seniority Rules. The paras mentioned in the 0.M dated 12-9-2009 shall be treated as rules governing the seniority since they are verbatim reproduction of the Seniority Rules, 1993. They have to be applied in their letter and spirit as they fall within the ambit of section 8(13) ibid. But as observed above, the parties are governed by 1993 Seniority Rules as they continue to be civil servants.
(13)The aforementioned paras and rule 4 of the 1993 Rules provide for the methodology for determination of seniority in the new service on the basis of the dates of regular appointments of the parties in the grades in which they were working at the time of issuance of O.M. And not on the basis of their, dates of birth. The part of rule-4, underlined by us, is of prime importance. It clearly says that on transfer the seniority shall be reckoned from the date of regular appointment in service from which they are coming to new service.
(14)The appointments are made in Government service by transfer, by promotion or by direct recruitment. Whereas age factor may be relevant in cases of direct recruitment where the merit of the candidates is the same, it is not the criteria for determination of seniority of the officers, already in service, appointed to a certain grade by promotion. For example 'A' is an officer in BS-20 in Custom Service. He is 50 years of age and is promoted to that grade in 1996. He shall rank senior to 'B' an officer in Income Tax Service, promoted to BS-20 in 1997 even if he is 55 years of age and vice versa when both of them join the new service. Their seniority shall depend on the date of their promotion to BS-20 (or any other relevant grade) in their parent department.
(15)A situation may arise when officer are promoted from both services on the same date, have same dates of birth and same qualifications. To meet this situation no rules are available. The Establishment Division and the Federal Board of Revenue may look into this aspect of the case.
However, this situation has not arisen in the present cases. As held above the inter se seniority of the appellants and the private respondents are to be fixed on the criteria laid down by rule 4 of the 1993 Seniority Rules and the abovementioned paras incorporated in the O.M.
(16)In this context we may also refer to proviso (b) to rule-4 of 1993 Rules which reads:-- "(b) persons belonging to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the persons older in age shall rank senior."
' Thus this proviso says that inter se seniority of members of two services is to be determined from the dates of their present appointment and not on any other criteria. Age will be relevant only when the promotion date/appointment date of the officers from different services is the same and qualifications are also the same. This principle is not attracted in this case as neither party has maintained before us that dates of promotion of some of the appellants and some of the respondents were the same.
(17) We find force in the contention of the appellants that their seniority is to be reckoned from the dates they were appointed in the posts at time the time they were taken in the new service. We also find that the list prepared on 14-12-2010 was based on this principle. Hence, it was valid. The impugned list was not valid, especially when it was only provisional. We are of the view that the official respondents could not make promotions on the basis of provisional seniority list. Such a list has no legal status.
(18) Promotion and seniority are definitely not vested rights. Sections 8 and 9 of the Civil Servants Act, 1973 read together with section 4(1) proviso (b) of the Service Tribunals Act, 1973 are very clear on that. However, to be considered for promotion and seniority is a vested right A civil servant may not be able to file an appeal to get seniority or promotion but he can definitely file an appeal to get meaningful consideration for his seniority/ promotion. In the present case the appellants could not claim safeguard of their right to seniority and promotion. However, they could definitely make a prayer that they should have been considered correctly for their seniority/promotion."
' It was on the basis of above discussion that the impugned judgment was passed in terms of paragraph No,23 (ibid).
8. Mr. Abdur Rahim Bhatti, learned Advocate Supreme Court for the appellants in these appeals argued with vehemence that as the appellants are from the earlier occupational group who had cleared the selection process through Federal Public Service Commission ("the Commission") in the year 1982 and accordingly joined their service in the Income Tax Group, Government of Pakistan, by no stretch of imagination, after their induction in Inland Revenue Service on transfer basis, they can be made junior to those officers who had joined Inland Revenue Service from the other occupational group and belong to the junior batches of occupational group for the subsequent years. In this regard, he made specific reference to paragraph No,5 of the O.M.
Reproduced above to show that joining of Inland Revenue Service by the Income Tax Group Officers in huge numbers Was not a voluntarily and free exercise of discretion by them but due to the harsh language of this paragraph, as it was made abundantly clear to them that those who remained in the existing Income Tax Group, in other words, refused to exercise their. Option in the affirmation, will be retained in the Income Tax Group which will be a defunct and dying cadre without any future intake. He further argued that the very basis of the Tribunal's judgment regarding inter se seniority of the officials of two groups i,e, Income Tax Group and Customs and Excise Group, who had opted to join the Inland Revenue Service is unfounded as the Rules of 1993 were specifically excluded from its application in the case of occupational groups such as the Income Tax Group. For this purpose, he made specific reference to sub-rule (2)(ii) of Rule 1 of the Rules of 1993, which reads thus:-- "1. Short title, application and commencement.--- (1) These rules may be called the Civil Servants (Seniority) Rules, 1993.
(2) They shall apply to all civil servants except those governed under:-- (i)
(ii) the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990; and ' He stressed that it is highly unjust and unfair that due to the impugned judgment of the Tribunal and restoration of seniority list dated 14-12-2010 many officers, who have joined Income Tax Group.
Service in the year 1982, after clearing their CSS examination from the Commission with a clean service record, having never been superseded/dropped, have been placed junior in the seniority list to the officers of other occupational group, who had joined service in the Customs and Excise Group after clearing their exams from the Commission in the subsequent years 1983 or 1984. He added that even if the Rules of 1993 are to be applied for determining the seniority of the appellants qua officers inducted in the Inland Revenue Service from the Customs and Excise Group, these Rules do not cater/address the eventuality, which is created due to merger of officers of two occupational groups in terms of O.M. Dated 12-9-2009. More particularly, in a situation when in view of its paragraph No,5 the officers from Income Tax Group had very little, rather no option for refusal.
He, therefore, argued that to resolve the inter se seniority issue of the officers of two occupational groups, who had joined Inland Revenue Service in terms of O.M. Dated 12-9-2009 the Federal Government may be directed to frame proper rules to address the grievance of the appellants.
Further, commenting upon the role of anomaly committee visualized in paragraph No,9 of the O.M.
He argued that even referral of case of the present appellants to this committee will not serve any purpose, unless relevant rules are framed by the Government to meet the situation arising out of O.M. Dated 12-9-2009, as otherwise, even if the committee upholds the claim of appellants still on the basis of existing rules, nothing can be done by the Committee to address the grievance of the appellants. He continued to argue that it was on account of the grievance agitated by the appellants that earlier a high-powered committee was constituted by the Establishment Division, which issued relevant recommendations to redress the grievance of the appellants and ended up in the revised seniority list dated 2-6-2011. According to learned Advocate Supreme Court, the Tribunal while rejecting the revised seniority list and restoring the earlier seniority list dated 14-12- 2010, even did not afford due opportunity of hearing to appellants, in grave violation of principles of natural justice (audi alteram partem). At the conclusion of his argument, learned Advocate Supreme Court, however, did not dispute that none of the appellants had challenged O.M. Dated 12-9-2009 on the ground of its paragraphs 3, 5 or 6 or regarding mala fide in the issuance of this O.M. By the Establishment Division, Government of Pakistan, which had done so in compliance of the Cabinet decision. Learned Advocate Supreme Court also could not satisfactorily controvert the fact that the O.M. In terms of its paragraphs Nos.3 and 6 (ibid) had already addressed the issue of inter se seniority of the officers of Income Tax Group and Customs and Excise Group, who opted to join the Inland Revenue Service. In the end, he also argued that once the O.M. Dated 12-9-2009 has given a cut-off-date for exercise of option up to 28-9-2009, subsequent steps of extending this date up to 15-1-2010 and then to 18-1-2010 taken by the Member (Administration) were without jurisdiction. According to learned Advocate Supreme Court, therefore, at least all those officers who exercised their option to join Inland Revenue Service after the cutoff-date shall be placed junior in the seniority list to those other officers who had exercised their option within the original time frame of O.M. In order to add force to his submissions as regards determining the inter se seniority between the officers of two occupational Groups, who joined Inland Revenue Service in terms of O.M. Dated 12-9-2009, he also made reference to an earlier notification of merger of two groups in the year 1981, which compelled the Government to make specific rules for this purpose in order to address the seniority grievance of the officials of two groups due to their merger into one. For this purpose, he also placed reliance upon the case of Muhammad Nadeem Arif v. Inspector-General of Police (2010 PLC (C. S.) 924), which lays down that instructions/ rules/policies issued by Government without due approval of the Provincial. Government would not be validated and will have no legal sanctity on account of the fact that this practice was followed by the department since long.
9. He, however, did not dispute that before expiry of the cut-off-date for exercise of option provided in the O.M. Dated 12-9-2009, the operation of the said O.M. Was suspended by the High Court, thus, the officials of the two groups, who wanted to exercise their option on the last date were deprived of such opportunity and it was in this background that after vacation of such suspension order from the High Court, the extended date was notified, but there was no mala fide of the concerned authority in doing so to oblige some individuals.
10. Ms. Raana Ahmed, who had opted to argue her case personally after revocation of her authority in favour of Mr. Abdul Rehim Bhatti in her cases, mainly adverted to the factual aspects of the case, also mentioned in the appeals, to show that how some of the officers from other occupational group, who joined government service after clearance of their CSS examination from the Commission subsequently in junior batches, became senior to her for no fault of her own. At the same time, she did not dispute that at the time of creation of the new Inland Revenue Service Group, for which she also opted in terms of O.M dated 12-9-2009, in their respective group from the date of their regular appointment in BS-19 or BS-20, these officers were senior to her in the list. This may be due to the reason that the group, which they had joined subsequently after clearance of their CSS examination from the Commission may have more openings for promotion due to which they were benefited by their rapid promotion as compared to her own promotion in BS-20 on 30- 4-2009. She also stated before us that the next meeting of the Central Selection Board for promotion of officers in BS-20 to 21 is scheduled on 11-2-2013, wherein her case is likely to be placed before the said committee for due consideration for promotion in BS-21.
11. Mr. Athar Minallah, learned Advocate Supreme Court for private respondents in Civil Appeals Nos.421, 422, 423, 425 and 429 of 2012, at the beginning of his submissions gave brief resume about the selection process undertaken through the Commission, and induction of successful candidates in various occupational groups in the service of Pakistan. He stated that in the past after successful clearance of CSS examination from the Commission, keeping in mind the preferences of the selectees, these individuals were used to be absorbed in twelve occupational groups, which, inter alia, included the Income Tax and Customs and Excise Groups. But subsequently, a new group "Inland Revenue Service" has been created, whereafter now the candidates who successfully clear their CSS examination held by the Commission, are placed for appointment in thirteen different occupational groups as per their option of preferences and policy of the Commission. He added that in the year 2009, the Government of Pakistan, as per decision of the Cabinet, planned to establish a new group "Inland Revenue Service", and for this purpose issued O.M. Dated 12-9-2009, whereby the subject of sales tax and excise were withdrawn from the Customs Group, renamed as Pakistan Customs Service, and merged in the Income Tax Group named as Inland Revenue Service.
He pointed out that due to the policy framed under the said O.M. Some officers of Customs Group, who, due to better opportunity got rapid promotion in BS-19 and 20, become senior to some officers of the Income Tax Group, which gave a cause of grievance to them. In this regard he agitated that for promotion well accepted and recognized criteria is fitness-cum-seniority, but length of service, as asserted by the appellants had never been the criteria. Thus on merits the appellants have no case for grant of seniority over these officers of Customs Group, may be they have lesser length of service. He further argued that in any case, once the appellants have not challenged the terms of O.M. Dated 12-9-2009, they are estopped from disputing the scheme framed thereunder, which, in its paragraphs Nos.3 and 6 (ibid), postulates the issue of inter se seniority of the officers of two occupational groups, who were appointed by mode of transfer in Inland Revenue Service under the same O.M. Referring to the background of the revised seniority list dated 2-6-2011, set at naught by the impugned judgment of the Tribunal and working of the anomaly committee formed in paragraph No,9 of the O.M., he argued that the high-powered committee constituted by the Establishment Division on the complaints of some of the appellants and other aggrieved persons, which submitted its reports twice, and formed the basis for the revised seniority list dated 2-6-2011, finds no place in the scheme of O.M. Dated 12-9-2009, therefore, any one sided decision or recommendation made by the said committee could not over shadow the claim of private respondents herein as regard their inter se seniority with the appellants settled in terms of impugned judgment. More so, in a situation where the above referred two paragraphs, i,e, 3 and 6 of the 0.M., provide a clear mandate for determining inter se seniority of the officials of two groups joining Inland Revenue Service. As regards the purpose and working of anomaly committee, he made reference to the record of the meetings held by the said committee, which has been placed before us under the directions of this Court contained in its order dated 22- 1-2013, to show that the anomaly committee is performing its functions within its parameter defined under the O.M. Dated 12-9-2009, therefore, grievance of the appellants relating to non- functioning of this Committee or non-framing of seniority rules is totally devoid of any legal force.
In the next limb of his arguments, he contended that there are only three modes of appointment in Government service, as also highlighted in paragraph No,14 of the impugned judgment of the Tribunal i,e, by transfer, by promotion or by direct recruitment. In the present case, admittedly all the officers in BS-17 to 21 appointed in the newly created Inland Revenue Service are appointees by transfer, therefore, their inter se seniority is to be reckoned form the date of their regular appointment in each group and such scheme has been visualized in unequivocal terms in paragraphs Nos.3 and 6 of the O.M. Dated 12-9-2009, which fact has also been elaborately discussed in the impugned judgment of the Tribunal. He strongly disputed the submissions of the learned Advocate Supreme Court for the appellants that Rules of 1993, in view of Rule-1(2)(ii) (ibid) were not applicable to the officers of various occupational groups. In this regard he made reference to the Rules of 1993 framed under section 2 of the Act of 1973 and also Chapter 14 of the Estacode to fortify his submissions and argued that exclusion of Rules of 1993 in terms of above referred rule 1 sub-rule (ii) was only during the period when an officer was on probation and training. However, the moment he was regularly appointed in any occupational group he was to be dealt with and governed like any other government servant in terms of the Rules of 1993. At this stage, to our query made in open Court, learned Advocate Supreme Court for the appellants frankly acceded to this position, but at the same time reiterated that the existing Rules of 1993 do not cater the dispute of seniority as a result of merger of two occupational groups, as in the instant case. At the conclusion of his arguments, Mr. Athar Minallah submitted that final seniority list dated 14-12-2010, upheld by the Tribunal in its impugned judgment is one which is to be kept intact subject to certain directions, as contained in the impugned judgment, but there is no scope for framing any new rules to meet the eventuality which found its way out from the very contents of the 0.M dated 12-9-2009.
12. Mr. Abdul Rehman Siddiqui, learned Advocate Supreme Court for some of the private respondents on his turn adopted the arguments of Mr. Athar Minallah with the addition that length of service has never remained criteria for determining seniority of a civil servant and that the Rules of 1993, applicable to the present case, are so comprehensive that there is no need of framing any further rules to address the so called grievance of the appellants.
13. Hafiz S.A. Rehman, learned Advocate Supreme Court for the Federal Board of Revenue, in his arguments made reference to the list of officers of the Customs Group available at pages-8 to 11 and the list of officers of Income Tax group available at pages-13 to 28 of the C.M.A. No,460 of 2013 and argued that when Rule-4(b) of the Rules of 1993 and section 8 of the Act of 1973, are read in conjunction with the language of 0.M dated 12-9-2009, no room for any grievance on behalf the appellants remains open for debate, therefore, the impugned judgment of the Tribunal requires no interference. He concluded his submissions with the remarks that once the appellants have accepted the 0. M dated 12-9-2009 and exercised their option in terms thereof it is too late in the day for them to now turn around and agitate their grievance contrary to the scheme of seniority provided therein in terms of its paragraphs Nos.3 and 6 (ibid).
14. Mr. Abdul Rahim Bhatti, learned Advocate Supreme Court, in his reply arguments reaffirmed his stance on behalf of appellants that Rules of 1993, or section 8 of the Act of 1973, do not cater for the eventuality as regards seniority criteria on the creation of new Inland Revenue Service Group after exercise of option by the officers of two occupational groups for their appointments by way of transfer. Thus, according to him, framing of new rules is inevitable to address the grievance of the appellants. Whereafter the matter may be referred to the anomaly committee to decide this issue.
15. We have carefully considered the submissions made before us by learned ASCs for the parties as well as the appellant who appeared in person, and perused all the material placed on record, specially the provisions of service laws referred to by them. It is an admitted position that O.M dated 12-9-2009, as reproduced above, is the basic document, which has survived till date and provides for creation of new Inland Service Group and appointments in it by way of transfer of officers from the Income Tax Group and Customs and Excise Group, as per exercise of their options in terms of its contents. A close look at paragraphs-3 and 6 of the O.M, makes it abundantly clear that upon appointment in the Inland Revenue Service, how the issue of their inter se seniority was to be addressed at the time of preparation of seniority list of all the officers appointed in new group. As can be seen from the contents of paragraph No,3, the O.M. Had in unequivocal terms provided that "the seniority in the new service shall count from the date of regular appointment in the present post in the existing Customs and Excise Group and the Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993, as amended from time to time". Again the issue regarding inter se seniority is further amplified in its paragraph No,6, which says that inter se seniority of the officers of existing Income Tax and Customs and Excise Groups exercising options for inclusion in the new Pakistan Revenue Service/Inland Service, as the case may be, shall count from the date of their regular appointment in the present post in the existing Customs and Excise Group and Income Tax Group in accordance with Civil Servants (Seniority) Rules, 1993. In the wake of such unambiguous language of O.M. Meant to resolve inter se seniority issues of the officers of the two groups, we find no substance in the arguments advanced on behalf of the appellants in respect of revised seniority list dated 2-6-2011. At the conclusion of their arguments, it has been conceded by the learned Advocate Supreme Court for the appellants as well as the appellant, who appeared in person, that rule 1(2)(ii) of the Rules of 1993, does not exclude the applicability of the Rules of 1993 to the case of the present appellants, while relevant Rule 4 thereof further deals with the situation as under:-- "4. Seniority on appointment by transfer.---Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post: ' Provided that --
(a) persons belonging to the same service, cadre or post selected for appointment by transfer to a service, cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and
(b) persons belonging to different service, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of the date of their regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior." (under lining is made by us for emphasis)
16. A careful reading of the above reproduced rule 4(b) makes it very clear that it fully caters the eventuality of inter se seniority of the officers of the two groups inducted in the newly created Inland Revenue Service, thus, the arguments advanced on behalf of the appellants for framing of new rules for this purpose are totally devoid of force; so also any reference to the earlier stances of merger of two groups in the year 1981 or suggestion of the learned ASCs for referring the case of the appellants to the anomaly committee. The submissions of the learned Advocate Supreme Court for the appellants regarding the extension in the cut-off-date in terms of O.M. Dated 12-9-2009 is equally devoid of force, as admittedly before expiry of cut-off-date on 28-9-2009 some officials had instituted proceedings by way of Writ Petition No,2577 of 2009, wherein the action on the basis of O.M. Was stayed and this position remained so up till 7-1-2010, which compelled the concerned administrative officer for extension of date for the other officials to avail the opportunity in terms of the O.M. Dated 12-9-2009. This aspect of the case has also been addressed in of the impugned judgment, which has rightly explained this/situation. Besides, the grievance of the appellants that the Tribunal had not provided them clue opportunity of hearing in the matter before passing the impugned judgment dated 2-12-2011 has also no force for the reasons; firstly, they were party to the proceedings before the Tribunal, notices were duly issued to them, and there is strong presumption against the appellants that they were well aware about such proceedings, but had chosen to remain absent from such proceedings, secondly, they have been afforded full opportunity of hearing in these appeals, wherein they have already agitated all their grievances, which have been discussed and are being answered in this judgment.
17. When we look at the individual grievance of the appellant Ms. Raana Ahmed, we find that after clearing her CSS examination from the Commission in the year 1982, she as per her preference and choice opted to join the occupational group (Income Tax), which, at the relevant time, had lesser openings for promotion in comparison to some other groups like Customs and Excise Group. As a result whereof she got her promotion in BS-20 subsequent to some other officials who had cleared CSS exams from the Commission in the subsequent years, but due to rapid promotion in their own group, got their regular appointments in BS-20 on a date earlier to the date of regular appointment of Ms. Raana Ahmed. She, therefore, had to bless her own stars in terms of the clear language of the O.M. Dated 12-9-2009 and merely on the ground of more length of Government service her objection as to seniority cannot be sustained. Moreso, as there is no cavil to the proposition that mere length of service is no criteria for determining the seniority of a government servant, when promotion and seniority is not a vested right in line with the language of sections 8 and 9 of the Act of 1973 read with section 4(1) proviso (b) of the Service Tribunals Act 1973. We may add here that Ms. Raana Ahmed had no grievance about her seniority in her parent department before her transfer in the new Inland Revenue Service; so also the other officers in BS-20 from the Customs and Excise Group, thus, in view of the scheme of O.M. Dated 12-9-2009, the preparation of seniority list dated 14-12-2010, to this extent, is correct, while the revised seniority list dated 2-6-2011 has no legal sanctity, thus rightly rejected by the Tribunal. This view of the matter also gains support from the judgment in the case of Naveed Ahmed v. Federation of Pakistan (2012 SCM R 1133), which lays down as under:-- "7. It would be seen that insofar as seniority is concerned section 8(2) of the Civil Servants Act provides that the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or cadre whether in the same department or office or not as may be prescribed. Further per subsection 8(3) seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed. In this connection as per section 7(4) of the Occupational Groups and Service (Productive Training and Seniority). Rules 1990 (1990 Rules) a mechanism has been given for determining the inter se seniority of the probationers who pass out from the Civil Services Academy. Finally the Civil Servants (Seniority) Rules 1993 per section 2 thereof provide for seniority on initial appointment. None of the afore mentioned laws/rules have any provision which would cater for ante-dated seniority. Consequently the seniority inter se of civil servants regarding their batch-mates would depend upon the results of their performance in the Civil Services Academy. In this regard it is also instructive to note that the appellant's induction in the DMG was allowed vide Establishment Division Letter No,12/1/95-EV(DMG) dated 22-8-1995 which specified the terms and conditions of his appointment in the said group. Besides other conditions, paras 2(v), (vii) and (x) of the said letter specifies as to how his seniority would be governed. These sub-paras inter alia stipulate as under:--
(v) If you are already in BPS-17 on the basis of a previous Competitive Examination you will not be allowed to seek reversion to your former Group during the training or after you join the new group.
Service in the previous group will not be counted for the purpose of seniority.
(vii) Your seniority in the Group will be determined by the Government after passing out the examination in accordance with rule 7 of the Occupational Groups and Services (Probation, Training and Seniority) Rules.
1990.
(x) As a probationer you will be subject to the provisions of the Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 as well as the Civil Servants Act, 1973 and shall be governed by rules and regulations applicable to a Civil Servant."
' Hence in view of the above terms and conditions which the appellant has accepted he cannot now be heard to say that despite the same he should be given ante-dated seniority i,e, along with his batch-mates of 1992".
18. The upshot of the above discussion is that these appeals being devoid of merit are dismissed.