Muhammad Mushtaq Jadoon, Member. Appellant qualified CSS in 2012, allocated OMG, through offer letter dated 25.02.2013. Appellant requested for deferment from 41st CTP on 16.10.2013, which was allowed by the Secretary, Establishment Division on 13.11.2013. Resultantly he joined 42nd CTP next year. Department circulated provisional seniority list dated 15.5.2018, whereby seniority of appellant was fixed with 42nd CTP. Appellant filed objections against Provisional Seniority list on 21.06.2018 and the same were rejected vide order dated 18.09.2018. Hence this appeal against appellate impugned order, whereby the departmental appeal preferred by the appellant was not acceded to.
2. Learned counsel for the appellant argued that departmental appeal was rejected without providing an opportunity of personal hearing to the appellant. Appellant deferment, by the Secretary, Establishment Division vide order dated 13.10.2013, was without condition or cautioning about relegation of seniority position to 42nd CTP. He opined that there is no provision in regard to deferment in the Occupational Group and Services (Promotion, Training and Seniority) Rules, 1990 (herein after to be referred as Groups Rules, 1990), and O.M. cannot supersed the Statutory Rules.
Prior to O.M. dated 23.9.2015, the O.M. dated 5.3.2015 clarified that the inter se seniority in case of deferment will be fixed with the batch they complete CTP. O.M. dated 23.9.2015 was to be applied prospectively. Later on the O.M. dated 23.9.2015 was withdrawn vide O.M. dated 26.12.2016 but the seniority of appellant was not corrected. There was no such rule at the time of deferment of appellant. In the impugned judgment of FST dated 14.4.2017 in Appeal No. 2502 to 1483 and 1568(R)CS/2016 the appellants were allowed seniority with their original Batch. As per Rule-2 of Civil Servants (Seniority) Rules, 1993 appellant deserved seniority with his original batch. He further argued that as per provisions of Section 3(2) of Civil Servants Act, 1973, term and conditions of a civil servant cannot be varied to his disadvantage. When a law vests rights and the same accrued to a civil servant it be cannot be denied through O.M., and with retrospective effect. In this regard he referred to PLD 2007 LHR 718, 2008 SCM R 598, 2009 SCM R 1055 and 2014 PLC (CS) 459. In support of his arguments he cited example of 39th CTP, whereby seniority, earlier relegated to the bottom of 40th CTP in the light of O.M. dated 5.3.2013, was restored to 39th CTP in the light of Establishment Division O.M. dated 26.12.2016. He prayed that appellate impugned order dated 05.03.2019 may be set aside and the seniority of appellant may be restored to his original Batch i.e. 41st CTP.
3. Learned AAG and the DR referred to parawise comments, provision of Civil Servant Act, 1973, Groups Services Rules, 1990 and Civil Servants (Seniority) Rules, 1993 (herein after to be referred as Seniority Rules, 1993). O.M. of 2016 was issued in pursuance of Section-8 of Civil Servants Act, 1973 and Rule-3(1) of Occupational Groups Rules, 1990, and thus O.M., 2016 had fall legal backing.
Deferment was allowed under Rule-3(1) of Rules, 1990 and inter se seniority of such servants is determined as per Rules 6 & 7 of Occupational Group Rules, 1990 and O.M. dated 23.9.2015 and O.M. dated 26.12.2016 withdrawn ab initio and paras 1(a) and (b) of O.M. dated 29.3.2015 substituted with new paras which stipulated that the officers who are allowed deferment their inter se seniority will be fixed with the batch they successfully completed CTP. O.M. dated 26.12.2016 was withdrawn, ab initio, in pursuance of Hon'ble Islamabad High Court orders in the Writ Petition No. 2557/2017. As such the O.M. dated 23.9.2015 stands restored. Service starts the day a probationer joins service and not from the date of offer letter of appointment and it is universal principle for all the civil servants. No such precedent of allowing seniority with the original batch, after deferment, is available. The cases referred by the learned counsel for the appellant are of relegation due to marks of CTP and FPOE and not due to deferment on own request. He concluded that the appellant has no cause of action and appeal is not maintainable and liable to be dismissed.
4. We have heard the arguments of both sides and gone through the record and relevant law and rules.
5. Learned counsel for the appellant raised objections:-- a) Disputing legal validity of OMs issued from time to time; b) No rule, OM can be applied with retrospective effect; c) Deferment was unconditional; d) O.M. 2014, 2015 & 2016 were not in the field when the appellant was offered letter of appointment on 25.2.2013 and after deferment when he joined the service with the 42nd CTP.
Learned counsel mainly focused on non-applicability of O.M. 2014, 2016 & 2016 to the case of applicant and referred to Civil Servants Act, 1973 and Occupational Group Rules, 1990.
6. We have to revert back to the Civil Servant Act, 1973 (to be referred as Act, 1973) which regulate the appointment of person to, and the terms and conditions of service of persons, in the service of Pakistan, as the very preamble of Act, 1973 set the objectives of statute. Act, 1973 framed under Articles 240-243 of the Constitution and Article 280 defining Service of Pakistan. All the Rules and OMs emanates from Act, 1973 and powers vested in the government thereto. Section 25 of the Act, 1973 empowers the President or any person authorized by the President in this behalf, to make such rules as are necessary or expedient for carrying out purpose of Act, 1973. Section 25(2) further empowers the President or any person authorized by the President to make such rules as appears to him to be necessary or expedient for carrying out the purpose of this Act, 1973. Section 8 of Act, 1973 deals with seniority but nothing herein contained shall be construed to confer any vested right to a particular seniority. Under Section-8(3) seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed. Sub Section (4) of Section 8 further clarify the position as seniority shall take effect from the date of regular appointment to that post. As held in 2011 SCM R 389 seniority is not a vested right. Seniority cannot be conferred retrospectively, unless such right is established (PLD 2002 (SC) 385), It was held in 2019 SCM R 349 that provisions of sub- section (3) of Section 8 of Act, 1973, read in conjunction with Rule 2(3)(b) of the. Civil Servants (Seniority) Rules, 1993, that seniority of a civil servant, on initial appointment to a service, has to reckoned from the date of joining the post. Seniority Rules, 1993 framed under Section 25 and Section 8 of the Act, 1973. Language of Rule 6 is indicative of the fact that inter se seniority of civil servants on initial appointment to a service, shall take effect from the date of appointment or their regular appointment. Rule 3(b) of Seniority Rules, 1993 further elaborate the issue of seniority and it is from the date of his joining the post. The Occupational Groups Rules, 1990 deals with the three aspects of Probation, Training and Seniority of Probationer.
7. It is logical that a Probationer join service after one year has to be assessed with the Batch he would be undergoing training. Appellant in his departmental appeal has assailed O.M. dated March 5, 2015 and 23rd September, 2015 being violative of Article 4 of the Constitution. But in the service appeal prayer is confined to setting aside the impugned order, dated 18.9.2018 and appellate impugned order dated 5.3.2019. Strictly speaking the cited OMs have not been applied to the case of appellant with retrospective effect. Appellant did not join 41st CTP in 2013, rather he joined in October, 2014 and passed out in 2015 while by that time O.M. dated 23.9.2015 was very much in the field. Provisional seniority list was circulated on 15.5.2018, inviting objections. Final seniority list may take three years after the course completion of a Batch as under Rules, 1990, Probationers are allowed three chances to clear FPOE and even fourth attempt as a matter of grace to qualify the FPOE. Thus inter se seniority has to be determined after passing the CTP, STP and FPOE. Both OM dated March, 5, 2015 and O.M.23rd September, 2015 were issued in furtherance of Occupational Group Rules, 1990 and both are not in conflict with each other. Provisions of O.M.
March, 5, 2015 incorporated in the later O.M. dated 23.9.2015. Learned counsel for the appellant could not point out repugnancy in both the OMs dated 5.3.2015 and 23.9.2015. O.M. dated 23.9.2015.
Both these OMs streamlines and clarify the procedure as laid down in Occupational Group Rules, 1990. Clause-VII of offer letter clearly specify that seniority in the Group will be determined in accordance with Rule-7 of Occupational Group Rules, 1990; which the appellant accepted on 3.10.2013.
8. Stance of learned counsel of appellant is not tenable under the law that there were no conditions in the deferment letter Deferment was allowed on the request of appellant and his ignorance of law and rules cannot be taken an excuse in defence. He accepted all the terms and conditions of Offer Letter. Deferment was on his own request. O.M. dated 23.9.2015 clearly states that seniority of all past cases, whereby seniority was fixed with their original batch, will be reverted back and seniority will be fixed with the batch he/she undergone/completed CTP. Resultantly, number of probationers seniority was reverted back. FST judgment dated 14.4.2017, as referred by the learned counsel for the appellant, is hardly relevant to this case which is of deferment. While the cited judgment in Appeal No. 1483, 2502 and 1568(R)CS/2016 was given in regard to counting of FPOE marks for inter se seniority. In regard to non-mentioning of "Deferment" in Occupational Group Rules, 1990 and Seniority Rules, 1993 the learned counsel could not justify entitlement of appellant to seniority with 41st CTP Batch and if so under which rules or O.M. Occupational Group Rules, 1990 and Seniority Rules, 1993 repeatedly talk of assessment of "Batch" to determine inter se seniority.
How a person can be assessed with the "Batch" he is not part of. Same word "the date of his joining" repeated in Rule-3(b) of Seniority Rules, 1993. Thus offer letter, appointment to a post is subject to "actualisition" which only materialized, when one join the service. Deferment is a special concession and cannot be claimed as a right and a concession vests no right to seniority. Seniority is otherwise not a vested right under Section 8 of the Civil Serve -is Act, 1973.
9. With a view to avoid such litigation, in future, Establishment Division (Respondent No. 2) is directed to suitably amend the Occupational Groups and Services (Promotion, Training and Seniority) Rules, 1990 to include "Deferment". Similarly O.M. dated 23.9.2015 must be quoted in the letter while according approval of deferment.
10. In view of reasons cited above, appeal is dismissed. Impugned order and appellate impugned orders are upheld.
11. No order as to cost. Parties be informed.