MR. JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-This order will dis--pose of the following four appeals in which identical questions for adjudication are involved :-
(1) Appeal No. 99 (R)/1979M. S. Choudhry v. Establishment Division and others.
(2) Appeal No. 100 (R)/1979 Ghulam Nabi v. Establishment Division and others.
(3) Appeal No. 105 (R)/1979 Naim Ahmad Khan v. Establishment Division and others.
(4) Appeal No. 106 (R)/197 9Mir Yousaf Shah v. Establishment Division and others.
2. In the year 1959, the Government of Pakistan decided to introduce, what is commonly known, Section Officers' Scheme, in the Central Secretariat. When decision was finalised, Office Memorandum was issued on 5th August, 1959. The initial method of recruitment of Section Officers under the new scheme is given in para. I (iv) thereof. According to it, all Assistant Secretaries and Under-Secretaries were re--designated as Section Officers. Member of the Central Superior Service (Class I), employees of Central Secretariat and its Attached Departments and Subordinate Offices were made eligible for appointment as Section Officers. Apart from that, sub-clause (c) of the aforesaid para. Provided that selection for 70% of the remaining posts should be made by the Central Selection Board subject to the approval of the Federal Public Service Commission from amongst the following categories in the order indicated below :-
(i) Superintendents of the Central Secretariat.
(ii) Assistants, including Assistants-in-Charge of the Central Secretariat.
(i.e) Other Class It Officers serving in the Central Secretariat and its Attached Departments and Subordinate Offices.
3. The four appellants belonged to one or the other of the above category, and they were appointed as Section Officers on purely temporary basis in the Central Secretariat under the newly-introduced scheme. The appellants' case is, and the department has not categorically controverted it that initially the selection on temporary basis had been taken out of the purview of the Federal Public Service Commission, and that the Central Selection Board alone after verifying the service record of Class II Officers eligible for appointment as Section Officers made the selection. As a result, all the four appellants were appointed Section Officers in the Central Secretariat in 1959. It appears that on 6th August, 1960, a letter was issued by the Establishment Division to the Secretaries of all the Ministries, informing them that in order to judge whether or not the officers who were appointed as Section Officers have rendered satisfactory service to justify their further continuance in that capacity, it was decided to take the following into consideration before a final decision is taken :--
(1) The result of the examination to be held by the Federal Public Service Commission in 1960.
(2) Special reports for the period from January, 1960 to September, 1960. These reports to have a specific entry as to whether a Section Officer concerned is fit to be continued as Section Officer or should be reverted.
4. All the appellants fulfilled the requirements for appointment as Section Officers, but they failed in the written examination held by the Federal Public Service Commission in 1960 'they were given another chance to re-appear in 1961, but in that examination also they failed. However, all the appellants continued to hold the posts of Section Officers. On 23rd October, 1965, the Central Secretariat Service (Class 1) Rules, 1965, were promulgated by which, inter alia, the Section Officers in the Secretariat were brought in the regularly constituted cadre of the Central Secretariat Service (Class 1). In 1967, a seniority list of the Section Officers was published and all the appellants' names appeared therein. Subsequently, however, another list was published which has not been placed on record, and the appellants' case is that their names were not included therein.
5. The appellants' case is that they were entitled to be included in 'the Central Secretariat Service, when it was constituted and that in fact, they bad actually been so included but in a subsequent list, their names did not appear. According to the appellants, when they failed in the second examination held in 1961, they represented to the President, whereupon it was decided to consider the matter again-in consultation with the Federal Public Service Commission. Their stand is that since a majority of the persons of their category were in the advanced age group, it was considered that they may not be asked to take the written examination and that the Commission should decide their cases on the basis of their Annual Confidential Reports and their performance.
This position is evident from the note dated 18th September, 1963 of Mr. G. Mueenuddin, the then Establishment Secretary, who had discussed the fate of the twice failed Section Officers with the President. The note is as under :- "On 17th September, 1963, I brought the President's notice the action taken to revert the Section Officers who had failed in two consecutive examinations. I also submitted to him that this action had led to protests and be was kind enough to agree that the Board might reconsider the case of those who had earned really excellent remarks in actual work. He desired, however, that the assessm ent of the records should be made by the Central Public Service Commission.
6. The appellants' case is that their record was considered by the Commission and they were found fit for retention as Section Officers and that the subsequent action of the Government in excluding them from the list of the Central Secretariat Service was uncalled for. Reliance was placed on rule 5
(d) of the Central Secretariat Service (Class I) Rules, 1965, which provides the inclusion in the initial constitution of service of following categories of officials, namely :- ---Such of the Superintendents, Assistants and other Class II officials appointed as Section Officers in the Secretariat before the 14th day of September, 1961, as have been declared in consultation with the Commission, fit for permanent retention."
The appellants' case is that they having been cleared by the Commission were fit for retention in the service and consequent encadrement in the Central Secretariat Service. However, there appears to be some mis-interpretation of rule 5 (d) ibid. The said rule does not confer the right of deciding fitness for retention on the Commission. It only refers to consultation with the Commission and the fitness obviously is to be decided and declared by the Government itself. The words used are "declared in consultation with the Commission fit for permanent retention". The record does not show that on the advice of the Commission, the appellants were declared fit for permanent retention, though they had actually continued to work as Section Officers on temporary basis.
7. It appears that the question again came up for consideration in 1970, when by letter dated 3rd June, 1970, the Joint Secretary, Establishment Division sought the advice of the Commission. Para. 9 of the letter is as follows :- "In the light of the discussion held by us on the 9th May, 1970, it is requested that the advice of the Commission on the following three points may now please be furnished to the Establishment Division at an early date :-
(1) The exact implication of the approval to the "regular retention in the Section Officers Grade of the individuals concerned conveyed by the Commission in response to the Establishment Division letter No. 8/5/62-C. III, dated the 21st December, 1963.
(2) Do the Commission consider such candidates at par with those who have qualified.
(3) Do the Commission consider that the question of encadrement in the C.S.S. Of the twice failed promotee Section officers may be referred back to the Government for consideration."
The Commission sent a reply to this letter on 4th August, 1970. Since this letter has been relied upon by the appellants, it would be advantageous to reproduce the text of the same. It reads as follows :- "When the Commission considered the case in 1963, the Serving Section Officers were faced with the threat of immediate reversion. The C.S.S. Class I cadre had not yet been formed nor any rules been framed. In the light of the information available at that time, C. P. S. C. Agreed with the suggestion of the Establishment Division that the Section Officers who had not passed the Serving Section Officers Examination should be considered for regular retention the basis of their records.
The word --regular retention" was used in the Establishment Division letter No 8/5/62-III, dated 21 December 1963.
Regular retention meant that the condition of passing the examination was waived and instead the Section Officers' permanent retention and confirmation was to be decided on the basis of their superior officers in their Annual Confidential Reports. Their selection on the basis of C.Rs. Was to be done by C. P. S. C. But once the recommendation of the C.P.S.C. Was accepted by the Government they were to be at par with those who had passed the examination.
It is presumed that in 1968 all the relevant facts were brought before the Secretaries Committee and the Cabinet when the decision referred to in para. 7 of your letter, under reference, was taken. If this presumption is correct, it is not necessary to re-open the matter by referring it again to the Cabinet There should be a finality in these matters at some stage."
8. If the advice of the Commission, as tendered above, is taken to be binding on the Government, then the natural result would be that all the appellants would be entitled to be encadred in the Central Secretariat Service in the same manner in which those Section Officers who had qualified in the written examination had been encadred. In other words, in the case of the appellants, thest requirement of passing the written examination shall be deemed to have been waived retrospectively and their seniority shall be fixed as if they were continuing on regular basis like the Section Officers who had passed the examination. However, it appears that earlier in 1967, the scheme of the Section Officers was reviewed, when a Summary was submitted to the Cabinet on December, 20, 1967, on the recommendation of a Committee formed in this respect. Para. 14 of the Summary in clause (c) provided that "unqualified Section Officers who are found efficient and physically fit may be allowed to continue as Section Officer without being encadred in the Central Secretariat Service. 1n the case of inefficient and non-qualified Section Officers, the Ministries/Divisions concerned may examine whether action should be initiated to retire them on completion of 25 years service." From the record produced before us, it appears that the Cabinet did not approve this recommendation in entirety, and decided that :- "Promoted section officers who failed to pass even in the second attempt in the serving section officers examination should not be encadred in the Central Secretariat Service."
9. The entire case of the appellants depends upon the recommendation of the Federal Public Service Commission, but if the advice of the, Commission is not accepted, then that advice does not confer any right on the appellants whatsoever. The fact is that when the appellants we" not "declared" by the Government to be fir for retention in consultation with the Commission in accordance with the provisions of rule 5 (d), it does not lie with them to say that they had become members of the Central Secretariat Service on the basis of the said rule. Now, the appellants in spite of having not been encadred in the Central Secretariat Service, continued to serve as Section Officers. That was a concession which had been given to them and it did not confer any right on them.
10. In 1975, on the introduction of the Administrative Reforms, an office Management Group was formed. In this Group, inter alia, Section officers who stood encadred in the former Central Secretariat Service were to be included. The Dames of the appellants did not appear in the Office Management Group, as they had not been encadred in the Central c Secretariat Service. The appellants' claim is that they are entitled to become members of the Office Management Group on the basis of para. 4 (i) and 4 (ii) of the Office Memorandum dated the 27th January, 1975, which forms the basis of the formation of that Group. Para. 4 (i) confers rights of being encadred in the Group on those Section Officers who already stood encadred in the former Central Secretariat Service, while rule 4 (ii) relates to those Section Officers who were eligible to be encadred, but notifications could not be issued in respect of them before the abolition of the C. S. S. Cadre. We do not think, the appellants fall in either category. They did not stand encadred in the C. S. S. Cadre, because the Government had decided that the twice failed Section Officers should not be brought on permanent footing in that service. Conse--quently, they could not be absorbed in the Office Management Group. Para. 4 (ii) again is not applicable, because the appellants having not passed the written examination were not eligible to be encadred in the Central Secretariat Service. The names of the appellants were, therefore, rightly excluded from the list of the officers of the Office Management Group.
11. It has been pointed out that subsequently the appellants qualified in the written examination and they were taken in the Office Management Group from the date of passing the examination.
This has nothing to do with the claim of the appellants that they are entitled to count their seniority and service in the Office Management Group from the date of initial introduction of the Section Officers Scheme, which subsequently became Central Secretariat Service and then Office Management Group.
12. On the above considerations, we find little force in these appeals, all of which are dismissed.
However, there shall be no order as to costs.
13. Parties to be informed accordingly. The departmental record produced by the Establishment Division be returned to them.