' BRIG. ABDUR RASHID (MEMBER).-In the year 1969, the Federal Public Service Commission conducted a promotional examination for selection of promotee Section Officers. A total number of 24 posts were available in the promotion quota. In all, 50 candidates passed this examination and since the examination was of a competitive nature, only the first 24 were appointed as Section Officers according to their merit position, vide Gazette Notification No, 2/1/71-C. HI, dated 4th May, 1971 the appellant who had secured 19th position in the said competitive examination being one of them.
The appellant was appointed on regular basis in terms of rule 6 of the C.S.S. (Class I) Rules, 1965.
2. Since the appellant had been appointed on regular basis he was duly encadered into the C.S.S. (Class I) vide Establishment Division notification No, 11 (1)/73-C. HA (I), dated 20th August, 1973. The appellant appeared at Serial 82 of the said gazette notification and was encadered into the Central Secretariat Service, with effect from 9th October, 1972.
3. In the provisional seniority list of Section Officers dated 6th May, 1974 the appellant was shown at serial 440 and was placed junior to the ad hoc promotee officers of the first promotional examination held in 1967. However, as a result of his representation dated 30th May, 1974 the next seniority list dated 13th February, 1975 showed the appellant at serial 380 and was shown senior to the ad hoc promotees of 1967 promotional examination.
4. In the subsequent seniority list dated 26th December, 1975 the appellant was placed at serial 404 and was once again, shown junior to the ad hoc promotees of 1967 examination. Not only that, he was placed junior to the direct recruits of the year 1971, 1972 and 1973 despite the fact that he had successfully competed for a vacancy, out of 24 vacancies available on Regular Basis and had been placed 19th in the order of merit. This was in contravention of rule 13 (4) of the Central Secretariat Service (Class. I) Rules, 1965, which applied in his case at the time, and which read " Seniority- 13(4). Seniority of promotees vis-a-vis direct recruits shall be fixed in accordance with the principle that promotees as a class shall be senior to direct recruits of the same year."
5. Since the appellant had not been assigned correct seniority he submitted a representation dated 10th January, 1976 addressed to the Establishment Secretary. The representation was, however turned down vide Establishment Division 0.M., dated 27th January, 1976 without assigning any reasons. Aggrieved by the said appellate order, the appellant filed his appeal before the Federal Service Tribunal within thirty days thereof which was registered as appeal No, 17/(R.)/1976.
6. Appeal No 17(R)/1976 was heard in the first week of March, 1982. After hearing, the. Tribunal discovered that the appeal was not maintainable in the light of learned Supreme Court Judgment dated 30th August, 1981 (in Appeal No, K. 106/79). The appeal was dismissed, vide our judgment dated 8th March, 1982 received by him on 20th March, 1982 and was to be filed afresh after exhausting the right of appeal to the President in accordance with the Civil Servants (Appeal)
Rules, 1977 read with section 22 of the Civil Servants Act, 1973 as enunciated by the said judgment of the Supreme Court.
7. Since the appeal 17(R)/1976 had been in pendency with us since February, 1976 and had been taken up six years after its institution, the Tribunal recommended that the delay in applying to the President may be condoned even though this could have, very well, been done by us due to the fact that the bar of limitation was due to no fault of the appellant. However, the Establishment Division in their wisdom, did not condone the delay and the appeal dated 6th April, 1982 preferred by the appellant to the President was withheld in the said Division and intimation to this effect was communicated to him, vide under order dated 11th May, 1982 whereafter he filed his present appeal once again before the Tribunal in consonance with our earlier direction on the ground that he may be accorded his due seniority with effect from the date of his regular officiation as a Section Officer with effect from 5th May, 1971 which had been denied all these years.
8. The learned counsel for the respondent department raised a preliminary issue that since this very appeal had once been dismissed, it could not be reinstituted. We did not think there was any substance in the objection and we repelled it because the appeal had been dismissed on technical grounds as mentioned and the appellant had been allowed by us to file a fresh appeal after complying with the requirement laid down by the learned Supreme Court.
9. We heard the appellant plead his own case. There is no doubt that the appellant was appointed regularly against departmental quota after successfully competing in the 1969 promotional examination. He was placed 19th for 24 regular departmental vacancies and was so appointed, vide Establishment Division gazette notification No, 2/1-7-0 III, dated 4th May, 1971. Furthermore, the appellant was encadered into the C.S.S. With effect from 9th October, 1972, vide gazette notification, dated 20th August, 1973 issued by the Establishment Division.
10. We have no doubt that the appellant's seniority had been tampered with by way of mischief in the seniority list dated 6th May, 1974 when he was placed at serial 440. He had it corrected to his rightful place at serial 380 in the seniority list of 13th February, 1975. Once again he was brought down to serial 404 in the seniority list of 26th December, 1975 by placing him junior to the ad hoc appoint is of 1967 examination. This time he was also placed junior to the direct recruits of the years 1971 to 1973 in utter disregard of the fact that he had qualified by virtue of his 19th position against 24 regular departmental vacancies reserved for 1969 examinees. The unsympathetic attitude of those no were required to right the deliberate wrong only aggravated the situation .The written statement of the respondents does admit vide para. 3 ,that when the second promotional examination was held in 1969 (in which the appellant qualified) there were 24 posts of Section Officers available in the regular promotion quota. They have also admitted that of the 50 who qualified, 24 were appointed Section Officers according to their merit position vide notification, dated 4th May, 1971 the appellant being one such appointee. We have no doubt that the appellant has been seriously wronged and there was enough with which to do so and for this we have to go back to 1967. In the 1967 promotional examination, only 18 examinees had qualified who were appointed against regular posts. The remaining 89 were treated as ad hoc appointees. In the year 1969, there were 50 who qualified against 24 regular vacancies and the rest were appointed on ad hoc basis. It appears that "chicks the 18 regular appointees of 1967 examination found their rightful place with a large number of ad hoc appointees of the same year and similarly the 23 regular appointees (out of 50) of the year 1969, too, found a place above the ad hoc appointees of the years 1967 and 1969, the appellant happened to be the unlucky one o was denied his rightful regular place all along.
11. In order to remove all doubts and clarify the situation, we would like to quote from Establishment Secretary's summary, dated 4th of February, 1971 sent to the President and C.M.L.A. : "3. Since the introduction of the Section Officers' Scheme in 1959, the Ministries/Division have, in view of increase in the work-load, created 131 temporary posts of Section Officers. The total number of posts of Section Officers in the Central Secretariat now stands at 657 (524 cadre posts + 131 temporary plus 2 permanent posts which continued from 1959 but not encadred.
4. Although encadrement was not complete, vacancies continued to occur in the posts of Section Officer (in the cadre posts as well as in the temporary posts) and, in order to fill up these vacancies, a Section Officers' (Promotional) Examination was held in 1967. The vacancies were calculated on the overall basis of regular as well as temporary posts and 20% of these vacancies, which came to 18, were filled up by appointment of the first 18 persons who had passed the Promotional Examination. The remaining persons numbering 89 who had passed the examination but did not come within the quota were also subsequently appointed as Section Officer on a purely temporary basis subject to the condition that they would have no right for encadrement in the Central Secretariat Service unless posts became available in their own quota. No follow up action was taken to regularise the position. This is now being done as has been explained in para. 1.
5. The present position of vacancies in the post of Section Officer (both regular and temporary) is as follow :{{TABLE TEXT}}
(1) Total number of posts in the Central Secretariat 657
(2) Section Officers in position :
(a) Section Officers from the Central Secretariat Service or promoted from the Central Secretariat Staff. 479
(b) P.C.S., E.P.C.S. And other Central Class I officers on deputation to the Centre 82 Total 561
(c) Number of posts vacant ... 96
6. In view of the existing shortage, the Second Section Officers' (Promotional) Examination was held in 1969. The results of the examination have now been made available by the Central Public Service Commission. 50 candidates have finally qualified. Results of 2 are still awaited. The examination was held under rule 11 of the C.S S. (Class I) Rules, 1965 and, it being a competitive one, only those, who on the basis of the merit list come up against the number of posts available in the promotion quota, are entitled to be appointed as Section Officer on regular basis (underlining by us). As in 1967, we may calculate the vacancies at 25% (previously 20% and has [Here in italics] ' been increased under Government orders of the total posts i,e, regular and temporary. These will come to 24. In view of the shortage the rest 26 out of 50 who have qualified in the examination may again be appointed on purely ad hoc basis without entitling them to any vested right on these posts. The position may be reviewed as soon. As the encadrement work is completed. The list of 50 persons who have become successful in the Second Section Officers' (Promotional) Examination, 1969 is at Annexure II. There is demand from. Secretariat Service Association for relaxation of pass percentage from 55 to 50% so that more candidates could qualify. This demand cannot be accepted as this is really competitive examination and not a qualifying examination. The rest of the vacancies (96-50) will be filled either by transfer of officers from the Provincial Government and other agencies or by ad hoc promotion in the Ministries.
7. Approval of the President is solicited to the suggestion in para. 6 above."
12. There were queries from the President. As a result another summary was put up to him on 3rd April, 1971. Last para. Of the summary being the gist is reproduced : "The Section Officers Scheme was introduced in 1959 when 578 were taken by redesignating 122 officers from the cadre of Assistant Secretaries and by promotion of 456 from the grade of Superintendent, Assistants and Stenographers. In 1965 when the rules were framed, it was provided that 80% would be taken by direct recruitment (later in 1969 reduced to 75%) and 25% by promotion. The position of appointments made by direct recruitment and by promotion is given in the attached statement (Not attached by us, being unnecessary). It will be seen that so far 273 direct recruits were taken of - whom 199 are now in position. The last batch of 35 is undergoing training at the Institute. As regards promotees apart from 578 initially inducted into the Section Officers' grade, another 47 were taken later on review of their cases. From 1967 Examination, 17 were taken on regular basis. Although 87 were taken temporarily the appointment letter was so worded that they had to be continued in the grade more or less on regular basis. In the present proposal another 24 are being recommended for appointment on regular basis. (Results of 2 candidates are not available and proposal will be sent on receipt of their results). 26 recommended to temporary basis will have to be reverted if regular appointees are available. It is not proposed to make any commitment to take them on regular basis at a later date."
13. The President approved para. 6 of the summary dated 4th February, 1971.
14. The list of 24 Section Officers of 1969 examination which received assent of the President for Appointment on Regular Basis, the name of the appellant appears at serial No, 20 (as against 19 vide notification, dated 4th May, 1971 mentioned at para. 1 above). The remaining Section Officers from 1969 examination were approved for appointments on ad hoc basis.
15. We can only express regret that even after this unimpeachable claim of the appellant, the Establishment Division, rather than conceding the issue should have chosen to contest this case by reneging on the orders of the President obtained by the said Division themselves
16. Of the 192 respondent officia:s, Syed Wazif Hussain Zaidi, Shahzad Hussain Naqvi, Q.H. Qureshi and 'jag Hussain Shah only filed their written replies opposing the appellant and praying for dismissal of his appeal. We have no hesitation in recording that none of the respondents has been able to make out any case against the appellant insofar as their written replies are concerned. As regards other respondents, this judgment shall be treated as ex parte.
17. We also heard the learned counsel for respondent Ijaz Hussain Shah. The learned counsel said that any concession to the appellant, Muhammad aiaz, is to be disregarded as enunciated in PLD 1976 SC 202. This case is not relevant to the present appeal before us. Arguing further the learned counsel said that prior selectees shall have preference as enunciated in 1974 PLC (C.S.T.) Note 39 at p. 22 as well as 1974 PLC Note 9 at p.
5. We repel this plea by saying that prior selectees, if regular, shall have pre-) ference otherwise they will have to await their turn to be absorbed on regular basis. In view of article 5 of the Limitation Act, the appeal is time barred and hence incompetent said the learned counsel further.
All we would like to say is that the present appeal was filed in time on both occasions. On technical grounds, we had recommended condonation in March, 1982 which was not acceded to by the Establishment Division for which no rationale has been advanced. We do not think that this case of gross in-justice, for which the Establishment Division are not only directly responsible but are squarely to blame, should be allowed to fall through on mere technicalities. Instead of righting the wrong which was as clear as the day light the Establishment Division have turned this into a case of false personal prestige by perpetuating a wrong for which we take a serious view and would advise those at the helm of affairs in the said Division to learn to do justice rather than impede it while they have the authority to do so. We condone any delay which may have occurred in this case and order accordingly because the delay has been due to no fault of the appellant. The learned counsel urged that the appellant Muhammad Riaz had, by his appeal 6. Of 6th April, 1982 challenged the seniority list of 26th December, 1975 whereas a seniority list of November, 1981 had already come into the field. Why was it so ? The appellant Muhammad Riaz replying to this objection stated that there was a seniority list of 1979 prior to the one of November, 1981. In both these lists his position had been no better than that of 26th December, 1975. Moreover, his appeal against the 26th December, 1975 seniority list had been lying pending for disposal before the Tribunal and he saw no reason to withdraw the said appeal and to file fresh ones for the simple reason that, if his pending appeal against the 26th December, 1975 seniority list were to succeed, it would resolve the issue once for all, as far as he was concerned. In addition, appealing against seniority lists of 1979 and 1981 in the year 1982 would have rendered his appeals time-barred whereas this was not so in the case of his appeal in pendency and registered as far back as 26th February, 1976. We are of the opinion that there is a good deal of merit in the arguments of the appellant in defence of his appeal which we are now disposing of. In addition, we would like to mention that if the case of the appellant had been decided earlier than the judgment, dated 30th August, 1981 of the learned Supreme Court, the chances are that it would not have been dismissed on the said technical grounds. Also, in Appeal No, 197(R)/80, Muhammad Anis Khan v, Chairman C.B.R. We have held that only the first seniority list will be regarded as provisional and al subsequent seniority lists whether or not a department says so shall be treated as Final. The appellant came against 26th December, 1975 seniority list which was final. He was quite within his right to contest his claim on the basis of the said seniority list which was final and not provisional.
17. In view of the foregoing averments, perusal of relevant record and the analysis thereof, we have come to the irresistible conclusion that this appeal must succeed. We, therefore, order that the appellant Muhammad Riaz shall be treated as a Regular Section Officer as indeed he always was, since 5th May, 1971 and given his place in the latest seniority list accordingly. He will also rank senior to direct recruits of the year 1971.
18. No order as to costs.
19. Parties be informed.