N. A. CHAUDHRY (MEMBER).-Tourism Cell was created in the Aviation Division of the Government of Pakistan on 30-11-1970. Some posts of Assistant Chief were created with effect from the same date in that Cell. The following persons were appointed against these posts on .The dates indicated against their names :-- These appointments were approved by the Central Public Service Commis--sion. In 1972, the Tourism Cell was transferred from the Aviation Div. To the newly-formed Ministry of Minority Affairs and Tourism. It was anticipated that in the absence of there being no seniority rules, for these posts, seniority of the incumbents of these posts would be determined in accordance with the general principles governing this seniority in accordance to the dates of joining. A provisional seniority list was issued on 10th July, 1975, in which the appellant was shown as junior-most although he had joined on 30-11-70 (earlier than three of the respondents).
2. The appellant represented against this seniority on 24th July, 1975. This representation was rejected on 25-1-1977 by the Ministry of Commerce and Tourism and the seniority determined on 10-7-1975 was confirmed. Hence this appeal to the Tribunal on 3-2-1977 under section 4 of the Service Tribunals Act, 1973) claiming that the appellant is senior to respondents 2 to 6.
3. The question of the appeal being time-barred or incompetent having already been settled vide our judgment dated 29-1-1979, the arguments on facts and merits of the case were heard in detail.
4. The facts of the case are that the Tourism Cell was created err the abolition of the Department of Tourism under the Ministry of Defence in pursuance of the directive of the President dated 20-10- 1970. In lieu of the twenty posts of Assistant Directors existing in the defunct-Department, eight new posts of Assistant Chief in the same time scale with the same duties and responsibilities and with the same status were created in the Tourism Cell. The recruitment was made from amongst the Assistant Directors of the defunct-Department. These new appointments were approved by the Central Public Service Commission on 30-11-1970, 15-2-1971 and 14-2-1972 in three instalments. It has also been explained by the concerned Ministry that a part of the work of the defunct-Depart-- ment was transferred to the newly created Tourism Cell. As a general principle in the case of vacancies filled through the Public Service Commission, the seniority is reckoned by the merit assigned by the Commission to the recommended candidates irrespective of their dates of joining the appointments. The Assistant Chiefs newly, appointed, therefore, were assigned the same seniority which they enjoyed in their defunct---Departnient. This seniority was approved by the Establishment Division on 23-12-1976.
5. Representations were invited on the provisional seniority list and any objections made by any of the officers were settled before finalis--ing the list.
6. The appellant pleaded his own case and argued that the posts in the defunct-Department were abolished. New posts were created in the Tourism Cell which were filled through the Public Service Commission. The appointments of the Assistant Chiefs were fresh appointments against the newly-created posts. In the circumstances, the seniority should be reckoned from the date of joining of individual officers in the new Cell in the absence ' of any other seniority rules for these appointments.
7. As regards admissibility of pay, T.A. Pension, in continuity of the previous service, the appellant produced an order of the Ministry of Defence, dated 7-10-1971, sanctioning these concessions specifically to the newly appointed officers. According to the appellant, the admissi--bility of these concessions did not in any way, confer any right of continuity of service to the officers because their appointments as approved by the Public Service Commission, were fresh appointments with effect from the dates they joined the Tourism Cell. He further argued that had these appointments not been fresh, there was no necessity under the rules to obtain fresh approval of the Central Public Service Commission.
8. The appellant quoted the authorities of Appeal No. 88 (R),11974, dated 2-2-1976, decided by the Service Tribunal, in case of Fida Mohammad v. Ministry of Defence, the relevant portion of which runs as under :- "nor obvious reasons no claim could lie to the post of U.D.C. And the question of fixation of pay in the new post was still open. The mere fact that the period of interruption between the date of discharge from the post of U.D.C. Under the PRASC and the date of appointment as L. D. C. Under M.
E. S. Was treated as extraordi--nary leave without pay, would not imply that the official had returned to the original post and would therefore, be entitled to the pay last drawn (as U. D. C.), nor could it be inferred that it would be case of reversion. It has to be remembered that it was a case of fresh appointment under a new organisation.
He further cited case of Murtaza Hussain v. Board of Revenue (1572 PLC (C. S. T.) 208), the relevant portion of which reads as under: "Surplus Government servant cannot claim as of right absorption in any department or post muchless on alternative job of original grade-Absorption is discretionary with Government- Absorption cannot be made basis of seniority."
The appellant also pointed out that the fresh approval of these six officers had been made by the Central Public Service Commission on three different dates, i.e. Miss Ghory, Naseerullah Awan and Mahmud Alam Kureishy, the appellant, were approved in 1970, whereas Muneeraddin and Akhtar Hussain were approved in 1971 and still Hanif Raza in 1972. In the circumstances, it would not be correct to determine the seniority of these officers on the basis of the seniority they enjoyed in the defunct-Department. Had there been continuity in their appointments, there was no question of approval being accorded in three instalments.
9. The learned counsel for respondents 2 & 4 argued that the appoint--ment of the Assistant Directors to the posts of Assistant Chiefs was not a fresh appointment in any of its attributes. The approval of the Public Service Commission was not obtained for fresh appointments but the same was obtained as contemplated under Article 185 (2) of the Constitution of Pakistan, 1973. There is a clear stipulation under this Article that officers transferred from one post to another, on abolition of the post, have to be approved afresh by the Central Public Service Commission. It was, therefore, in obedience of this mandatory provision of the Constitution that approval of the Assistant Directors was obtained afresh from the Commission for absorption against the newly-created posts of Assistant Chiefs in the Tourism Cell.
10. As regards specific sanction issued y tile Ministry offence to allow the concessions of pay in continuity, leave and T. A., the learned counsel for respondents 2 & 4 argued that the same was necessary in the normal course that such entitlements could not be conferred on these officers without the approval of the competent financial authority and, therefore, it was to meet this requirement of the rules that the Ministry issued this sanction for permitting these entitlements. The issue of sanction of the Ministry, therefore, does not in any way, indicate or prove the nature of appointment being fresh.
11. The learned counsel for the respondents, therefore, pointed out that on the abolition of the posts in the Tourism Division, creation of the posts in the Tourism Cell was made with the same scales of pay, same duties and responsibilities and other conditions of service, which were available to these officers as Assistant Directors in the defunct-Department. Their appointments in the Tourism Cell was, therefore, an appointment in continuity in all its aspects and not a fresh appointment in any way. It was a case where a part of the work of the defunct-Department was assigned to a successor organisation, and it was an obligation of the Federal Government to absorb these officers against the newly-created posts with the work which was transferred to the new organisation. The words of re-organisation, disestablishment and various other nomenclatures have been used in the communications and orders issued in this respect by the Government. It does not make any difference to use any nomenclatures its because the fact remains that the appointment was in continuity and not a fresh appointment.
12. As regards the authorities quoted by the appellant, 4 as explained in the foregoing paragraphs, the learned counsel for respondents pointed out that these authorities do not cover the cases which are not identical to the instant case. The circumstances and facts of this case are different. It has not been indicated in these cases whether or not any part of the work eras transferred from the defunct-Departments to the newly-created offices. In the instant case, it was clearly for this reason that eight posts in the new Cell have been created in lieu of the twenty posts existing in the defunct-Department.
13. After hearing both the parties, we come to the conclusion the appointment of the Assistant Directors of the defunct-Department of Tourism on the posts of Assistant Chiefs newly created in the Tourism Cell does not constitute a fresh appointment and it is in all its aspects an appointment in continuity of the previous service. The seniority has, therefore, to be determined on the basis of the seniority these officers were enjoying in the original Department which was determined on the basis of merit decided by the Central Public Service Commission while according their approval to their original appointments.
14. As regards the fresh approval obtained by the Government from the Public Service Commission, before appointment as Assistant Chief, this has been apparently obtained as required under Article 185 (2) of the Constitution of Pakistan of 1973. This is confirmed by the very fact that while according their approval to the appointments of the Assistant Directors, the Federal Public Service Commission has not determined the relative merits of the officers which is invariably done by them if the appointment is a fresh appointment. Since they have not touched the question of relative merits, it is clear that the nature of appointment is in continuity and not a fresh appointment. This is also supported by the basic fact that while the Public Service Commis--sion was according approval to these appointments in 1970, 1971 and 1972, only the names of the Assistant Directors already working in the defunct---Department were considered and fresh competitive candidature was not invited from the open market. It is well-known that for every fresh appointment, the competitive candidature is invited by the open advertise--ment and considered by the Commission under the mandatory provisions of the procedure.
15. We also agree with the learned counsel for the respondents that under the authorities quoted by the appellant, there is no indication that on abolition of the post in the old organisation whole or a part of the work was transferred to the successor organisation. In fact, the cases referred to in quoted authorities indicate only the abolition of the posts permanently and absorption of the staff rendered surplus on that account. In the instant case, a part of the work has been transferred from the defunct Department to the newly created organisation and abolition of the posts is not a final action, as 40 per cent of the posts have been created to lieu of the old posts in the new organisation. As such, the officers and staff rendered surplus on account of the abolition of, these posts has a right to be absorbed in the new organisation where the work relating to their posts has been partly transferred.
16. We also observe that on every new approval of the Federal Public Service Commission relative merit list is drawn by them which forms the basis of seniority list of the officers selected in that batch. In the instant case, no such merit list has been drawn because it was not a fresh approval but appointment in continuity was approved for transfer to a new organisation as contemplated under Article 185 (2) of the Constitution referred to earlier. A reading of para. 2 of the Public Service Commission letter dated the 22nd August, 1973, leaves no doubt regarding this interpre--tation of the case. The para. Is reproduced below :- "The above advice of the Commission is subject to the condition that on absorption, the inter se seniority of two or more officers of the same grade or status will be the same as they enjoyed in the defunct-- Department of Tourism"
17. Net result of these discussions is that the appeal is not sustainable, and is dismissed.
18. No order as to costs.
19. Parties to be informed.
SHAH ABDUR RASHID, (CHAIRMAN).-I agree with the conclusion arrived at by my brother that this appeal should be dismissed. The seniority of civil servants is ordinarily determined by rules made by different Departments. In case, where selection is made on the recommen--dation of the Public Service Commission, the rule is that seniority assigned by the Commission is accepted irrespective of date of joining the job. In cases where the question is of fixation of seniority between direct recruits and the promotees, the rules differ from department to department on the basis of administration convenience. In some departments, direct recruits take seniority over promotees of the same year. In others, the case is vice versa. Still in some departments, the rules provide for the weightage for the promotees and they take seniority over direct recruits of the year earlier to the year of promotion of the promotees.
2. The practice which is generally accepted and on which the appellant with confidence relies, is that in the absence of rules of seniority the date of joining the duty shall determine the seniority.
This practice has no statutory sanction behind it. It is based on equity and justice far any other practice is likely to offend the equitable emplacement in the cadre for seniority, But this practice not being based on any statutory document is not of universal application. If in a specific eventuality the practice offends the rules of equity and fair play, it cannot be adopted for then its very basis falls. The instant case is a peculiar example justifying departure from the rule inasmuch as if the said practice is followed, the seniority once enjoyed by the officers on the basis of positions assigned by the Public Service Commission as Assistant Director will be upset. These officers have no vested right to the newly-created posts of Assistant Chiefs. It is their selection as Assistant Directors made by the Public Service Commission which has given them right of appointment as Assistant Chiefs. The equity, justice and fair play demands that the previous seniority should be kept intact for otherwise grave injustice would be done to the officer who had stood higher in merit on the basis of original selection made by the Public Service Commission. Even the Civil Servants Act, 1973, which in the present case, is not applicable having been enacted after the cause of action accrued to the appellant, in section 8, does not specifically lay down that the seniority in the case of every appointment shall be determined from the date of appointment to the post in a grade. In subsections (2) & (3), the seniority is to be regulated by the rules that may be prescribed, but in subsection (4) it is provided that on promotion, a civil servant shall take, seniority from the date of regular appointment to a post in the grade. Since in this particular case no rules have been prescribed, the seniority has to be determined on the principle which I have just discussed above.
1. Mr. Mahmud Alam Kureishy30-11-1970
2. Miss Shireen Ghory 30-11-1970
3. Mr. Naseerullah Awan 30-11-1970
4. Mr. Muneeruddin 15-2-1971
5. Mr. S. Akhtar Hussain 1- 4-1971
6. Mr. M. Hanif Raza 14-9-1972