A. O. RAZIUR RAHMAN (MEMBER).-The appellant, Mr. Abdul Wahid, at present Assistant Superintendent in the Office of Director, Audits and Accounts (Works), Lahore, was a permanent U.
D. C. (later on designated as Auditor) under the Director, Audit and Accounts (Works) Lahore and was later selected, promoted, and confirmed as Selection Grade Clerk (re--designated as Audit Assistant) on 1-1-1956. He was confirmed as Audit Assistant on 18-11-1959 and is continuing as such till now. Two of his other colleagues, Messrs Haji Muhammad Khan and Muhammad Afzal Mian, respondents Nos. 4 and 5, were promoted as Audit Assistants on 6-12-1961 and 14-4-1962, respectively. Haji Muhammad Khan, respondent No. 4 was confirmed on 12-5-1961 and Mr. Muhammad Afzal Mian is still officiating. In accordance with the standing rules and instructions on the subject obtaining at the relevant time, the inter se seniority of all the three officers was shown in the seniority lists prepared from time to time as under:
2. However, on 24-9-1980, in response to an application made by the appellant, he was furnished extracts of a seniority list indicating the seniority of Audit. Assistants as on 14-8-1973, in which the appellant was shown junior to his other two colleagues, Respondent Nos. 4 and 5, who were placed respectively at Sl. Nos..29'and 30, as against S. No. 31 given to the appellant. In this way, the appellant, who was senior to the respondents as Audit Assistant by a margin of about 42 and 50 positions on 1-12-1976. Became suddenly junior to the other two by one or two places, respectively on 24-9-1980 and that too with retrospective effect from 14-8-1973. This was in pursuance of instructions issued by the Auditor---General of Pakistan on 18-2-1980, on the subject of maintaining' of the seniority lists of Auditors and Audit Assistants, in which it was laid. Down asunder :-
(1) The seniority of the Audit Assistants, as on 14-8-1973, based on the length of service as Auditor, should remain intact.
(2) The seniority of the Audit Assistants, promoted as such on or after 15-8-1973, should be determined in accordance with the provision of section 8 (4) of the Civil Servants Act, 1973, that is from the date of appointment as Audit Assistant.
3. The appellant, through a representation made by him on 15-3-1980, protested against the order issued by the Auditor-General, and also against the place assigned to him in the new seniority list.
1n this representation, he stated that the seniority list of Audit Assistants was being maintained separately since 11-2-1950, when this post was created on the basis of the decision of Government who treated the Selection Grade of U.D. Cs. As an altogether different scale from the U. D. C. Clerks scale. He further contended that the inter se seniority among the Selection Grade U. D. Cs. Used to be determined after confirmation with reference to their date of confirmation in the Selection Grade and that on the basis of this principle, separate seniority list of the Selection Grade U. D. Cs.
Was being main--tained. The appellant further argued that, since, all these years, the U.D.Cs.
(Auditors) and Selection Grade Clerks (Audit Assistants) were being treated as two separate groups for the purpose of determination of seniority, there was no justification for retrospectively changing the seniorities now at this stage, on the plea that Auditors and Audit Assistants belonged to the same cadre, doing the same job and holding similar responsibilities. The representation of the appellant has not solicited any response and it is presumed that his plea is not acceptable to the concerned authorities.
4. After hearing the parties in detail and perusing the relevant documents, we have come to the conclusion that the Selection Grade of the U. D. Cs. (now designated as Audit Assistants) was drawn from among the U. D. Cs (now known as Auditors) and treated as a special class drawing special emoluments. U. D. Cs. Appointed to this class were selected, at first through a D. P. C., then, through a departmental examination, and, later again by selection without examination and all the times separate lists were maintained of U. D. Cs. And Selection Grade Clerks. The position is amply clarified by a number of orders and instructions issued from time to time by the Auditor-General. In this connection, our attention has been drawn in particular to a circular bearing No. 714-NGE/ 10-50 Part III, dated 26/27-3-1951, in which it has been categorically stated that the Govern--ment of Pakistan, Ministry of Finance, letter No. 184-Estt. 11/50 "conveyed Government's sanction to the creation of a selection Grade for U.D.Cs:, in the Audit Department in the scale of Rs. 125-10-225/1311- 275". From this statement in the said circular, as well as from the detailed instructions as to the manner of selection for appointment to this grade, it is clear, beyond any shadow of doubt, that the Selection Grade was treated at the time of inception as a separate group. Again, from subsequent instructions and orders issued by the Auditor-General, it is established that the Selection grade continued to be treated as a separate group from the rest of the U. D. C. Grade.
5. In this connection, our` attention has been drawn to circulars bearing number 404/NGE/139-25-2, dated 24-2-1953, 2408 NGE/139-52 Pt. IIdated 8-12-1952, 14765-D/53, dated 8-4-1954, 1892-NGE- 186-54,dated 18-7-1954 and 120-Conf/PA/ DCAG (1)/12, dated 17-8-1970. The following significant observations in some of the circulars referred to above are worth noting :- "(1) It will be seen that Government decided that the Selection Grade is an altogether different scale from the U.-D. C. Clerk Scale. As such the U. D. C. Who are substantive permanent in the U. D.
C. Cadre cannot on promotion to the Selection Grade be regarded as substantive holders of post in the Selection Grade" (Circular No. 208-NGE;139-52 pt. II, dated 8-10-1952).
(2) Once a U. D. C. Is promoted to the Selection Grade substantively he severs all connections with the U. D. C. Post" (Circular No. 147-65-D/53, dated 8-4-1954).
(3) "After confirmation seniority, as usual, should be determined with reference to the date of confirmation in the Selection Grade (Letter No. 1892-NGE/186-54, dated 18-7-1954)."
6. In the face of the above very clear undisputed enunciation of the position of the U. D. Cs. Of the Selection Grade, vis a vis other U. D. Cs. And the principles on which seniority was to be determined within the Selection Grade, as well as the undesirable fact that separate seniority lists have continued to be maintained all these years, it is significant that the counsel for the Department and the departmental representative were both unable to explain how and why an occasion arose for preparing a seniority list of Audit Assistant as on 14-8-1973, in which an altogether different principle of determining seniority was adopted from that followed in the previous lists, or laid down in the Auditor-General's instructions from time to time and the Establishment Division directive on the point. The seniority list, as on 14-8-1975, part of which was made available to the appellant as late as 24-9-1980, has been prepared on the basis of seniority in the cadre of U. D. Cs. (Auditor) and not on the basis of appointment to and confirmation as Selection Grade U. D. Cs. (Audit Assistant).
As already observed, the previous seniority lists were prepared on the basis of appointment to and confirmation in the Selection Grade. This was done on the basis of the well-established practice that seniority in a particular grade would count from the date of continuous officiation in that grade. We are unable to appreciate why suddenly this principle was given a go-bye to and the former practice abandoned and that too by retrospectively amending the seniority list and disturbing the position of the appellant with effect from 14-8-1973, after the lapse of almost 7 years.
7. It was pleaded, in defence of the action taken by the authorities; that, in view of the promulgation of the Civil Servants - Act, 1973 on 14-8-1973, by virtue of section 8 (1) of the Act, separate seniority lists of Auditors (Grade 7) and Audit Assistants (Grade 11) were required to be maintained and so the Establishment Division had on a reference made to them by the Finance Division, advised that "since the posts of Audit Assistants are now in a higher grade than that of Auditors it seems proper that separate seniority lists should be maintained for the two grades'(vide Establishment Division letter No. 5/21/75-F, (iv) (tale 6-4-1977). It was not explained as to why occasion arose for obtaining orders for the maintenance of separate lists in respect of Auditors and Audit Assistants after the promulgation of the Civil Servants Act, when, actually all the time such separate lists had been maintained. It was, however, hinted that the separate seniority lists were hitherto maintained unofficially and without lawful authority, because, actually, U. D. Cs. (Auditors) and Selection Grade U. D. Cs. (Audit Assistants) really belonged to the same cadre, but now, that U.D.Cs. Have been placed in Grade 7 and the Audit Assistants in Grade 11, there was justification for keeping separate seniority lists, with effect from date on which these grades were given to the two categories of employees, namely 15-8-197;, we are unable to accept this plea For on thing, the spirit of the rule on the subject, viz. Section 8 (1) of the Civil Servants Act, is to treat the two separate grades as separate for the purpose of seniority if, in the 'past, a similar practice was in vogue, it would be presumed that such practice was in keeping with the spirit of the then existing rules, which have now been especially given modified form. For another, the Selection Grade by definition, as well as by clear and explicit enunciation of the position by the Auditor-General, must be, and has always been, treated as a separate grade and, therefore, the maintenance of separate seniority list for employees of this grade was not only understand--able but fair, reasonable and proper. Even if no such list had been maintained all these years, we would have treated the two groups as separate and distinct for the purpose of determining the respective seniorities of the concerned employees.
There should, therefore, have been no occasion for obtaining the Auditor-General's orders afresh on the subject and the already prevailing practice should have been continued without any hesita--tion. However, it is observed that, with the introduction of the National Pay Scales, with effect from 1-3-1972, the Selection Grade was abolished, but subsequently restored with effect from 1-7-1973. This temporary disappearance of the Selection Grade appears to have provided an excuse for raising the question of the maintenance of separate seniority lists on the restoration of the grade. To us, it appears that the selection grade was always separate and distinct and its identity as such has always been recognised, in spite of the fact that members of this grade belonged to the same cadre as the other U. D. Cs.
8. Considering the above, we are of the view that the instructions of the Establishment Division, that separate seniority lists for Auditors and Audit Assistants be maintained with effect from 14-8-1973, although justified in the light of the fact that the introduction of the National Pay Scales grades created two completely separate cadres, in N. P. S. 7 and 11, respectively, did not imply that the previous distinction, always recognised as existing between U. D. Cs. And Selection Grade U. D. Cs, would be ignored and considered as non-existent. The orders and circulars of the Auditor-General on the point are very clear and unambiguous. Therefore, to us, there appears to be no justification for the preparation of a presumptive seniority list, as i0obtained on 14-8-1973, and another list of Audit Assistants promoted on or after 15-8-1973. Apart from the fact that such action will disturb the recognised and unchallenged seniority of a number of employees, it will also make for a very unjustifiable discrimina--tion between all those who were promoted before 15-8-1973 and those promoted afterwards. Those promoted before 15-8-1973 would count their seniority from the date of their appointment as U, D. Cs. (Auditors), whereas those promoted after 15-8-1973 would count from the date of their promotion as Audit Assistants. This would give the latter category a considerable edge over Auditors not promoted before or alongwith them, whereas the first category would not get any benefit, vis-a-vis their colleagues senior to them in service who were promoted later to the selection grade. This is a position which is unjust, inequitable and administratively undesir--able. It is also contrary to the benefit already conferred on them by the rules, which cannot be withdrawn unilaterally in the arbitrary fashion followed in the instant case.
9. In the light of the above, we are satisfied that the grievance put forward by the appellant is genuine and valid and the wrong done to him in this behalf by the Auditor-General and the Seniority list prepared on the basis of the same should be undone. We accordingly, accept the appeal and order that the seniority list impugned against be recast on the lines of the seniority list last issued on 31-12-1976 and that no distinction be made in the principle governing the preparation of the seniority list as applicable to those promoted prior to 15-8-1973 and those promoted subsequently.
10. No order as to costs.
11. Parties be informed.
12. As smilar facts and circumstances obtained in Case No. 69 (L)/80, 70 (L)/80, 71 (L)/80, 73 (L)/80, 74 (L)/80 75 (L)/80 and 125 (L)J80 and the same points of Law are involved in these cases also the above decision will apply mutatis mutandis to those cases also.
Date of Publication of listAppellantRespondent 4Respondent 5 1-7-1965 103 185 212 1-7-1974 29 77 94 1-12-1976 28 70 86