Tauqeer Ahmed Khan, Member. By means of this appeal under Section 4 of the Service Tribunals Act, 1973, the appellant assails the notifications dated 13.01.2021 & 15.01.2021 by which his juniors (private Respondents 5 to 7) were promoted as Deputy Directors (BS-18). His departmental appeal dated 12.02.2021 was rejected vide order dated 06.05.2021.
It may be mentioned here that during pendency of appeal, an application under Order-I Rule-10, CPC was filed for impleading private respondents-5 to 7 as respondents in this appeal alongwith amended title arraying them as respondents. Notice of the application was issued to the private respondents, but they failed to contest the matter.
2. Brief facts of the case, as disclosed in the appeal are that, the appellant joined the Election Commission of Pakistan as Assistant Director (Legal) (BPS-17) vide memo dated 27.04.2016 and performing his duties with devotion & dedication. Vide memorandum dated 21.02.2017, provisional seniority list of officers in BPS-17, serving under the Election Commission of Pakistan as on 31.01.2017, was circulated vide memo dated 21.02.2017 and the name of appellant is appearing at Serial No.
104. For the sake convenience, the memo is reproduced as under:- "A provisional seniority list of officers in BPS-17 serving under the Election Commission of Pakistan as on 31" January, 2017 is circulated for information of all the officers concerned.
Any officer, who was promoted/appointed after 30th June, 2012 the date on which the previous seniority list was circulated, finds any objection to his or her position as indicated or any error and omission therein, may make a written representation before 10th March 2017, through proper channel. It should be noted by all concerned that objection on points settled in the past should not be raised again.
In case, no representation is received by the date mentioned above, it will be presumed that seniority as shown in the provisional seniority list is final and any representation after expiry of the stipulated date will not be entertained".
No representation, as directed, or objection was moved in respect of the said list, placing the name of appellant at Serial No. 104 by any officer of BPS-17. Lateron, vide letter dated 03.04.2018, final seniority list of officers of BPS-17 serving under the Election Commission of Pakistan as on 31.03.2018 was circulated by the Respondent No. 4, but surprisingly, name of the appellant was excluded.
Being aggrieved & dissatisfied, appellant filed representation dated 16.04.2018 to the Respondent No. 2, through proper channel, but the same remained unresponded and no intimation sent to the appellant. He then moved an application dated 30.04.2018 to the Respondent No. 1 for personal hearing, but also went unattended.
Surprisingly, vide notification dated 13.01.2021, issued by the Respondent No. 3, Eleven (11) officers of BPS-17 including two officers (Assistant Directors Mr. Javed Iqbal and Mr. Muhammad Siddique) juniors to the appellant were promoted in BPS-18 on the basis of final seniority list as stood on 31.03.2018. Likewise, vide notification dated 15.01.2021, another officer Assistant Director Mr. Aaber Farooque of BPS-17 was promoted to BPS-18. Being aggrieved by and dissatisfied with the said notifications, the appellant preferred representation dated 20.01.2021 to the Respondent No. 2, through proper channel. He also moved representation dated 12.02.2021 to the Respondent No. 1 through proper channel, against the impugned notifications dated 31.01.2021 and 15.01.2021.
It was stated that after promulgation of Election Act, 2017, Rules pertaining to the appointment of officers and staff and their terms & conditions has not yet been framed and merely, Draft Election Commission (Officers & Staff) Rules, 2018 were published for inviting objections or suggestions regarding appointment vide notification dated 22.10.2012, wherein the post of Assistant Director (Legal) was neither finding place in General Cadre or in Special Cadre and the appellant filed objections on Draft Election Commission (Officers & Staff) Rules, 2018 before the Respondent No. 2 and as the same have not been approved; hence, Election Commission (Officers & Servants) Rules, 1989 are in field and were in field at the time of issuance of final seniority list of offices in BPS-17 and impugned notifications dated 13.01.2021 & 15.01.2021.
That the representation, against the impugned notifications was rejected by the appellate rejection order and the appellant was informed of it vide letter dated 06.05.2021; hence, this appeal. It was prayed that:- "1. Direct the respondents to set aside Impugned Notifications No. F.3(1)/2021-Eatt-I dated 13.01.2021 and 15.01.2021 issued by the Respondent No. 3.
2. Direct the respondents to set aside Final Seniority List of Officers in BPS-17 as stood on 31.03.2018 issued by the Respondent No. 4 vide letter dated 03.04.2018.
3. Direct the respondents to include the name of appellant in Final Seniority List of Officers in BPS-17 (General Cadre) and promote the appellant in accordance with law."
3. Comments have been filed on behalf of respondents Election Commission of Pakistan, they are either misprinted (first page & third page) as Para-3 (on first page) and para-5 of the reply to grounds (on third page) cannot be read. Para-3 at page-1, only one line of Para-3 is legible, other lines including para-4 is totally misprinted. Likewise, Para-5 on page-3, only one line is half- typed/legible, remaining are misprinted.
In our view, Para-3 of the comments is very important end goes to the very root of the matter, as the appellant in the said para of his appeal has categorically and specifically asserted that a provisional list of offices in BPS-17 serving under the Election commission of Pakistan was circulated vide memo dated 21.02.2017 and his name was appearing at Serial No. 104. In absence of any reply to the said para, which is totally missing in para-3 of the comments, we are constrained to hold that the same are accepted/admitted to be true.
In the preliminary objections (para-2), it was stated that, "this Hon'ble Tribunal lacks territorial jurisdiction to entertain and hear the captioned Appeal which is liable to be transferred to the Hon'ble Federal Service Tribunal, Islamabad, for hearing and disposal". In other words, they wanted to say that the Service Tribunal at Islamabad has the jurisdiction to entertain this appeal, if not Service Tribunal at Karachi. How can it be? Federal Service Tribunal is Service Tribunal, be at Islamabad or Karachi/Lahore.
4. It was further stated in the comments that consequent upon his selection, the appellant was offered the post of Assistant Director Legal (BS-17) vide memo dated 27.04.2016, in response to which, he submitted his joining report on 18.05.2016 and was notified as such with effect from 18.05.2016 vide notification dated 30.05.2016. The annexure 'A' filed alongwith the comments is also not legible and thus cannot be relied upon. The respondents should have taken due care and caution while submitting the documents before the Court. In response to Para-5, it was stated that at the time of finalization of the provisional seniority list, the matter was thoroughly reconsidered and his name was excluded being ineligible to be part of the list and final seniority list was circulated. They stated that the representations of the appellant dated 16.04.2018 and 20.04.2020 were filed, after due consideration and hearing the appellant. They explained that Javed Iqbal and Muhammad Siddique were not Assistant Director (Legal) They were substantive holders of the post of Assistant Director of general cadre and were eligible for consideration for promotion to BS-18" in the service/cadre to which they belong. It was stated that the departmental appeal of the appellant dated 20.01.2021 was considered by the departmental authority rejected and the appellant was duly informed of it vide memo dated 06.05.2021. They stated that terms & conditions of service in respect of employees of ECP are governed under the "Elections Commission (Officers & Servant) Rules, 1989" and not under the Draft Election Commission (Officers & Staff) Rules, 2018 which are not in field; hence, the assertion of the appellant has no force. As per the Rules of 1989 in vogue, the Degree of Law (LLB) is mandatory for all officers of the Law Wing being the posts of specialist cadre. The post of Appellant against which required qualification is holder of LLB degree, also falls in the category of ex-cadre/specialist cadre.
6. We have heard the learned counsel for the appellant and learned counsel for respondent-ECP Mr. Ali Nawaz Khuhawar (whose name though appearing in the Vakalatnama, but does not bear his signature) and carefully perused the documents placed and relied upon during the arguments including the written arguments.
7. It is not disputed that a provisional seniority list of officers of BPS-17 as on 31.01.2017 was circulated where name of the appellant was shown appearing at Serial No. 104, whereas, names of private respondents, who were later promoted, after issuance of final list, was shown appearing at Serial Nos. 106, 107 & 108 respectively. After issuance of such list by the ECP, a final seniority list was issued of BPS-17 officers was circulated, vide letter dated 03.04.2018, clearly stating that, "In continuation of this Commission's letter of even number dated 21st February 2017, I am directed to send herewith copies of Final Seniority List of officers of BPS-17 working under the Election Commission of Pakistan as on 31.03.2018 with the request that the same be distributed amongst all concerned, under intimation to this Commission". This Final Seniority List is admittedly in continuation of memorandum dated 21 February, 2017 by which provisional seniority list was circulated. While finalizing the provisional seniority list of officers in BPS-17 serving in the ECP, upon which NO OBJECTION was ever raised by anyone, though invited, name of the appellant was abruptly excluded, without giving any reason, despite his making representation against issuance of such final list. A civil servant has right to know the reason as to withholding of his departmentalst Appeal/representation. Proviso to Rule-7(1)(e) of The Civil Servants (Appeal) Rules, 1977 provides that, "7. (1) An appeal may be withheld by an authority not lower than the authority from whose order it is preferred if:- (a)..................................
(b)................................
(c).................................
(d)................................
(e)...............................
Provided that in every case in which an appeal is withheld, the appellant shall be informed of the fact and the reasons for it: Admittedly no such reason communicated to the appellant for withholding of his departmental representations dated 16.04.2018/30.04.2020, which is violation of the above-said Rule. Apart from the in-depth consideration of the appeal, it also imposes a duty upon the appellate authority to record reasons for passing the appellate order and that the appellant shall be informed of the same. This duty to record reasons while deciding the appeal is coextensive with the provisions of Section 24(A) of the General Clauses Act 1897, which also obliges an authority vested with the power to make any order or direction to give reasons for making of the order.
8. In this context reference may be made to 1998 SCMR 2268 (Messrs Airport Support Service vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others) wherein with reference to Section 24A of the General Clauses Act 1987, it was held that it "declares that where a statute confers a power to make any order or to give any direction to any Authority, office or person, such would be exercised reasonably, fairly justly and for the advancement of the purpose of the enactment. What is more the order or direction, so far as necessary or appropriate would reflect reasons for its making or issuance and, where the same is lacking, an affectee may demand the necessary reasons, which in response, would be furnished". In another case, 2010 SCMR 511 (Secretary Ministry of Health, Government of Pakistan, Islamabad and another vs. Dr. Rehana Hameed and Others) it has been observed by the Hon'ble Supreme Court of Pakistan that "after addition of Section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries 'to redress the grievances of the citizens/their sub-ordinates with reason as law laid down by this Court in Messer. Airport Services case 1998 SCMR 2268. We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fair-play and social justice. Therefore, public functionaries' are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise". In yet another case, 2010 SCMR 1475 (Messer United Woolen Mills Ltd. Workers' Union vs. Messer United Woolen Mills Ltd.) it was held that "it is pertinent to mention here that even the public functionaries are duty bound to decide the case after application of mind, after addition of Section 24-A in the General Clauses Act, as law laid down by this Court in various pronouncements. See Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268".
9. In para-5 of the comments, it was stated that at the time of finalization of provisional seniority list, matter was thoroughly reconsidered and name of the appellant was excluded being ineligible to be part of the list and the final seniority list was circulated. No reason has been given in this para also nor reason has been communicated to the appellant and his departmental representation, preferred against such finalization, has also not been responded to. The provisional list was finalized and, thereafter, on the basis of such a final list, promotion orders were issued by which juniors to the appellant (private respondednts-5 to 7) were promoted, which in our view appears to be not in accordance with the principles of natural justice and fair play. Said promotion orders of his juniors were also challenged by the appellant and while rejecting the representation against such promotion also, no reason has been assigned, which is also against the principles of natural justice. For the sake of convenience, the rejection order dated 06.05.2021 is reproduced as under: With reference to his departmental appeal dated 12th February, 2021 against the Notification No. 3(1)/2021-Estt-I, dated 13 January, 2021, and Notification No. F.3(1)/2021-Estt-I, dated 15th January, 2021 for promotion to BS-18.
2. Mr. Shahnawaz Leghari, Assistant Director (Law-II), is informed that Competent Authority has rejected his departmental appeal".
10. That being the legal position obtaining in such like situation, the legality of the above order is to be judged in the above context. Since the order reproduced, above does not contain any reason it does not meet the requirement of law and can neither be sustained nor such an approach can be countenanced.
11. This amounts to condemning the appellant unheard, which is against the principles of natural justice. The exclusion of the appellant's name from final seniority list, without any reason, appears to be malafide and afterthought, not tenable in law. An order issued cannot be taken back without any cogent/sound reasons. After circulation of the provisional seniority list and inviting objections, the exclusion of the appellant's name from the final list, without objection having been raised by anyone, the action of the department, without affording chance of hearing to the appellant, is nullity in the eyes of law and not sustainable.
12. The learned counsel for the respondent cited a number of judgments, but there is no need to mention these as having examined them, none are relevant for the determination of the present controversy. Reliance in this respect is placed on an order dated 20.09.2022 passed by the Hon'ble Supreme Court in Civil Appeal Nos. 1292 to 1301/2021 (Mushtaque Ahmed Memon and Ali Akbar Abro v. Arshad Hussain Bhutto & others).
13. In view of the discussions, as above, we while allowing the appeal, as prayed, set-aside the impugned notifications/orders dated 13.01.2021 and 15.01.2021 as well as the appellate rejection order dated 06.05.2021.
14. No order as to costs. Parties be informed.