Asim Akram, Member. The facts giving rise to the appeal at hand are that the appellant was appointed as Assistant in BS-11 in Establishment Division on 26,02.1996. During his course of service, he was sent on deputation and placed in surplus pool on numerous times. Presently he is working as Assistant in Department of Communication Security (DCS) since 20.10.2011, the dated of his absorption in the department, and is placed at Serial No 24 in the seniority list issued on 18.08.2015.
Feeling aggrieved the appellant filed a departmental representation on 21.08.2015 which was not responded. The, appellant again filed a representation for correction of seniority list on 17.10.2019 which was rejected vide order dated 19.03.2020 against which the appellant filed the subject appeal.
2. The learned counsel for the appellant contested the appeal on the ground that the appellant was appointed on 25.02.1996 and as per Serial No. 19.3(ii) of ESTACODE the adjustment/absorption of civil servants upon devolution of Ministries/Division/Organization will be treated as appointment by transfer and their seniority may be determined under Rule 4-A of Civil Servants (Seniority) Rules, 1993 (Seniority Rules). The counsel contended that the appellant may be treated as appointment through transfer and the inter-se-seniority determined under Rule 4-A of Seniority Rules. The learned counsel further contended that the seniority of the appellant shall be determined by following his initial appointment according to Rule 8(h) of the Civil Servants Rules, 1974. With these contentions, the counsel for the appellant has prayed for acceptance of the appeal from the date of his initial appointment.
3. The respondents have vehemently opposed the appeal by stating that the appellant was sent on deputation and later on absorbed in the different department and thereafter being declared surplus was placed in surplus pool and later on absorbed in different departments. The departments in which the appellant was absorbed were never merged with the other department rather he was placed in surplus pool. The counsel contended that in such scenario the relief of Rule 4-A of Seniority Rules is not be applicable in the case of the appellant and as such the appeal at hand does not have any cause of action and needs to be dismissed.
4. We have heard both the parties and have also perused the record carefully.
5. During arguments it came to the knowledge of the Tribunal that the appellant has served in different department, in different status during the length of his service. In lieu, thereof both the parties were directed to place on record the service history of the appellant, along with relevant documents. The said record was placed on record by both the parties. The service record of the appellant placed on record by the respondent department is scanned as under:- Service Record of Mr. Akhlaq Hussain Faruqi, Assistant Period/Date Description/Service DetailPage No. From To 25.02.199628.04.1998Establishment Division from the date of appointment. 1 28.04.199814.09.1999declared surplus on 28.04.1998 and placed at the disposal of Ehtsab Bureau (PM Sectt)2-3 14.09.1999 Permanently absorbed in PM grievances cell w.e.f. 14.09.1999 4-5 18.11.1999 Went on deputation to NRB under Section 10 6 15.03.2003The official was permanently absorbed in NRB and accordingly seniority was given under the rules and entries were made on service book.7-9 01.02.200631.08.2010The official further went on deputation to ERRA PM Sectt w.e.f 01.02.200610 01.09.2010 Was repatriated to NRB on 01.09.2010 11 01.09.201017.05.2011Remained in NRB and declared surplus on 17.05.2011. Remained In Establishment Division (surplus pool).12-15 08.10.2011Department approached to Establishment Division for NOC to fill up vacant post of Assistant however services of Mr. Akhlaq Faruqi, Asstt, Surplus employee were placed at the disposal of DCS16 19-10-2011 Establishment Division order regarding absorption of official in DCS. 17 20.10.2011 Department office order of appointment of Mr. Akhlaq Faruqi 18.
10.02.2016Letter to Establishment Division seeking clarification regarding seniority in DCS19-21 11.02.2020Seniority was determined/ fixed w.e.f 20.10.2011 in the light of ruling clarification by Establishment Division22
6. There is only one contradiction between the list provided by the parties i.e., absorption of the appellant in National Reconstruction Bureau (NRB). As per appellant, he was absorbed in the NRE w.e.f 01.07.2000 and to that effect he has placed on record the letter No.3(10)SO(A)/2000-NBR dated 31-07-2000. The respondent's side has also placed on record the said letter dated 31.07.2000 but has placed another Office Order dated 15.03.2003 whereby the appellant is absorbed on regular post of Assistant (BS-11) with immediate effect. There is nothing on record regarding cancellation of earlier order dated 31.07.2000 whereby the appellant was absorbed in NRB w.e.f 01.07.2000. In the absence of any cancellation or recalling of previous absorption order any new order, taking the date of absorption to 15.03.2003 does not bear any weightage. The absorption order dated 31.07.2000 has created a vested right in favour of the appellant and the same cannot be withdrawn by simply issuance of an order which changes the year of absorption. The Hon'ble Supreme Court of Pakistan in the case titled as Capital Development Authority vs. Shabbir Hussain (2022 SCMR 627) has endorsed the doctrine of vested right and is of the view that when a right is created the same cannot be withdrawn without any reasoning. Hence, the date of absorption in NRB would be 01-07-2000, created by letter dated 31-07-2000.
7. National Reconstruction Bureau was made defunct by the Prime Minister vide Establishment Division Notification dated 14.10.2010 and the appellant was placed at the disposal of surplus pool of Establishment Division vide order dated 17.05.2011 where he remained there till 19-10-2011. The appellant was absorbed in Department of Communication Security (DCS) w.e.f 20.10.2011.
8. Department of Communication Security vide its letter dated 10.02.2016 inquired from Establishment Division of the seniority of the appellant which was replied by the Establishment Division vide its Memorandum dated 11.02.2020 whereby they referred the Rule 3(3) of Civil Servants
(APT) Rules, 1973, Rule 4 as well as Rule 4-A of the Civil Servants (Seniority) Rules, 1993. By referring the aforesaid rules, the Cabinet Division is advised that the departmental authority may examine and decide the matter in the light of rules attracted in the case. Subsequently in furtherance of the said advise, the Department of Communication Security has fixed the seniority of the appellant from the date of his absorption in the office w.e.f 20.10.2011.
9. That vide Office Order dated 17.05.2011 Prime Minister Secretariat declared the National Reconstruction Bureau, where the appellant was working as Assistant since 2000, as defunct. A defunct organization means Dead; extinct, as per Black's Law Dictionary Seventh Edition, and is not devolved or merged into some other ministry or department. The employees of defunct organization can be absorbed in different departments as according to Section 11-A of Civil Servants Act, 1973 (the Act) and the only protection available to them is under Rule 3(3) of Civil Servant, Appointment, Promotion and Transfer Rules, 1973 (APT, Rules).
10. The seniority of an employee rendered surplus, when absorbed in another department, is to be determined. Rule 4 of the Seniority Rule, 1993. As per Rule 4 (b) seniority on appointment by transfer shall take effect from the date of regular appointment to the service cadre or post. Relevant clause of the Rule is reproduced as under: "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 person older in age shall rank senior".
11. Learned counsel of the appellant relied on Rule 4-A of the Seniority Rules, 1993 which reads as under: "In the event of merger of Ministries, Divisions, Attached Departments or Subordinate Offices, the inter se seniority of civil servants, other than those belonging to regularly constituted Occupational Groups and Services, shall be determined in accordance with the date of regular appointment to a cadre or post".
We are afraid that applying Rule 4-A of Seniority Rules is not the correct appreciation of mind deals, it deals with determination of seniority of civil servants affected by merger of ministries but not deal with defunct organization.
12. Seniority of the employees in surplus pool shall be determined by Section 11-A of Seniority Rules read with Rule 3(3) of APT Rules, 1973. Also, the policy issued by the Establishment Division vide letter dated 24.02.2001 provides that the employees declared surplus and absorbed in the other offices of the Federal government are to get seniority w.e.f the date of their absorption in the respective cadre in the new office. It is also pertinent to refer to a letter of Establishment Division No. SOR- I(E&AD) 200/98 dated 8th June, 2001 which specifies policy for declaring government servants as surplus and their subsequent absorption/adjustment. Para 6 of the said letter deals with the subject of fixation of seniority. Para 6(b) states as under: "In case however, his adjusted in his respective cadre but in a Department other than his parent department, he shall be placed at the bottom of seniority list of that cadre".
13. Hon'ble Supreme Court in Civil Appeals No. 2003, 2004, 2005 and 1438/1999 while deciding seniority issue of surplus employees decides as under: "There appears to be no dispute that if an employee was declared surplus and his services absorbed in another cadre/department, he was to count his seniority qua the other incumbents in the said cadre from the date of his absorption/employment and he is not given the benefit of previous service for the purposes of seniority in the new cadre as was held in the case of S.M.Farooq and others versus Muhammad Yar Khan and others (1999 SCMR 1039)."
14. From the discussion above it is well settled that seniority of civil servant absorbed from surplus pool is to be reckoned from the date of his absorption in the new department and not from the date of his initial appointment or absorption in previous department.
15. In the circumstances, we do not find any inconsistency and illegality in the matter. No case is made out for interference in the impugned order. The appeal is dismissed being without any force and merit.
16. There shall be no order as to costs. Parties be informed in accordance with rules.