' MUHAMMAD IRSHAD KHAN (MEMBER).-Relevant facts giving rise to the present appeal, in brief are that the appellant was appointed as Section Officer on the 30th June, 1961. On introduction of National Pay Scales he was allowed Senior Scale of Section Officer (N.P.S.-18) w. e. f. 1st March, 1972.
Thereafter, he was promoted and appointed to officiate as Officer on Special Duty (Adaptation) in Grade-18 plus Special Pay of Rs, 440 per mensem with effect from 1st November, 1974. He was then appointed as Deputy Solicitor, again in Grade-18 plus Special Pay of Rs, 440 p. m. With effect from 26th October, 1976. Subsequently, vide Establishment Division Notification, dated 24th October, 1978 he was appointed as Deputy Secretary to the Federal Government. On 21st February, 1975, in the wake of Administrative Reforms, the posts of the Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretariat as are borne on the cadre of All-Pakistan Unified Grades were pooled together to constitute a Secretariat Group and in October, 1975, a provisional grade-wise seniority list of officers of this group was circulated for eliciting objections etc. But the appellant's name was not included in that list. He, therefore, represented for the inclusion of his name in the list but, according to him, no decision was taken thereon until by his D.
O. Letter dated 17th August, 1981, the Establishment Secretary circulated a fresh grade-wise seniority list of officers of the Secretariat Group and it was stated in the "Foreword" thereto that the lists circulated previously had been prepared without due regard to the extant laws and rules on the subject and that the fresh list had been prepared in accordance with the relevant lawsirules/ instructions as per details given in the Annexure to that "Foreword". Any omission, mistake or discrepancy was required to be communicated by the officer concerned to the Establishment Division by the 15th of September, 1981, which date was extended upto the 15th, of October, 1981. The name of the appellant appeared in this list at Serial No, 246, most presumably, on the basis of his appointment as Deputy Secretary to the Federal Government, with reference to the date of his formal appointment as Deputy Secretary to the Federal Government viz. 24th October, 1978. He represented claiming, inter alia, seniority with effect from the 1st of November, 1974, the date when he was appointed as Officer on Special Duty in Grade-18 plus Special Pay of Rs, 440 p. m. Failing to get any reply whatsoever from the Establishment Division he submitted a representation to the President of Pakistan which too remained unanswered, hence the present appeal.
2. The sole emphasis of the learned Deputy Attorney-General, appearing on behalf of respondent No, 1, was on his contention about the competence and maintainability of the appeal on purely technical grounds. His argument was that since the appeal was against a provisional seniority list, it was not maintainable. To support the contention he mainly relied upon the judgment of the Supreme Court in the case of S. H. M. Rizvi v. Maqsood Ahmed and others and that of the Sind High Court reported as Sajjad Ahmed Khan v. Government of Sind and another . The appellant's reply to the objection, briefly speaking, was that he had approached this Tribunal after exhausting the departmental remedy against the final determination of his seniority. He also argued that while preparing the impugned seniority list of 1981, the legally settled principle of seniority had been incompetently and wrongly changed altogether and his appeal was directed against those changes as well which by themselves provided a cause of action to the appellant. He submitted that the case law referred to by the learned Deputy Attorney-General is not applicable to his case.
In support of his claim he cited the judgments of the Supreme Court reported as Muhammad Afzal v. Government of the Punjab and Islamabad Club v. Punjab. Labour Court .
3. We have given our anxious consideration to the submissions of the parties and have carefully gone through the authorities cited by them. In the Supreme Court's case PLD 1981 SC 612 cited by the learned Deputy Attorney-General, the respondent in that case had filed an objection to the seniority lists and after waiting for ninety days, filed an appeal under section 4 of the Service Tribunals Act, 1973, treating that seniority list to be the final order. It was held by the Supreme Court that the seniority list challenged before the Tribunal in that case was issued under the instructions of the Establishment Division which required that the first issue of the gradation list was to be Provisional and objection were to be invited thereto and the list was to be finalized. Therefore, that was a provisional list notwithstanding the omission to mark it as provisional. The respondent in that case fled an objection to the seniority list but before it was disposed of or the list was finalized he brought his claim before the Service Tribunal without even making a representation to the next higher authority. As there was no final order ever passed on the objection of the respondent and he had not exhausted the departmental remedy, his appeal before the Service Tribunal was held incompetent by their Lordships of the Supreme Court.
4. The facts of the present case are, however, quite different. Here the impugned seniority list is not the first gradation list required to be prepared as provisional under the instructions of the Establishment Division but such a provisional grade-wise seniority list of the concerned group was circulated by the Establishment Division vide letter No, 2/4/ 1975/A-VI, dated 2nd October, 1975. In fact, yet another gradation list was issued in June, 1976, after the reconstitution of the Group.
Therefore, by no stretch of imagination, the impugned list can be considered as provisional. It was admitted by the Representative of the Establishment Division that the impugned list is in vogue and is being acted upon for' the purpose of promotion, etc. It appears to us that the learned Deputy Attorney-General had not been properly briefed on facts as he was not even aware of the fact that the lists of 1976 and 1981 were being acted upon but also had been drastically changed twice-first in 1979 and then in 1980-without even circulating them and promotions had been made on the basis of those modified lists which had not seen the light of the day. We could notice that the1 2 3 4 learned Deputy Attorney-General was taken aback when these facts came to surface during the arguments and had to concede in most polite and tactful words that the action of the Establishment Division was improper. At any rate, the seniority of the appellant has been finally determined by the Establishment Division vide the impugned list which is now being acted upon, and, as stated above, he has exhausted the departmental remedy as well 'before filing the present appeal. In the Supreme Court's judgment relied upon by the learned Deputy Attorney-General, a final order has been defined as having "the distinction of determining the rights of the parties." We are also clear in our mind that the ratio decidendi in that case was that B "not only the provisions of the law applicable so require it is in the interest of efficient and effective functioning of the Service Tribunal itself that it should adjudicate on concrete controversies concluded by a determinative order of the departmental authority." The matter under adjudication in the present appeal, in our view, stood concluded by the determinative decisions and actions of the Establishment Division. It can thus be safely concluded that the aforesaid Supreme Court's judgment is not attracted to the facts of this case.
5. In the Sind High Court's judgment cited by the learned Deputy Attorney-General, the petitioner in that case had challenged the provisional seniority list of officers of his grade on the ground that the Government had not fixed his seniority in light of the observation of the High Court in W. P. No, 27/1957 reported as PLD 1957 Kar. 685 and since the impugned action was provisional, he could not go to the Service Tribunal. The High Court, however, held that the seniority rules of the Government of Sind required that in January every year updated seniority lists should be prepared and that there was nothing on record to show that any effort had been made by the petitioner to obtain the final seniority list which, under the rules, it was the duty of the appointing authority to cause to be prepared or revised every year. The High Court, therefore, refused to interfere in the matter in exercise of its extraordinary jurisdiction saying that "it cannot be allowed to be argued that the matter does not fall within the jurisdiction of the Service Tribunal." Evidently, therefore, this authority is also of no avail. We have, therefore, no doubt, in our mind, that the present appeal is legally competent and maintainable and the objection of Respondent No, 1 in this behalf is accordingly repelled. It may be pertinently added here that, as we will discuss later on, the Establishment Division had perhaps realized that on merits they had no case to defend and were, therefore, taking shelter behind technical pleas. It is most unfortunate that the Establishment Division should be unable to dispose of representations/objections for years and still wish the poor Civil Servants to run from pillar to post so that the problem may possibly solve itself with the retirement of the aggrieved civil servants. We may here quote with advantage the view taken by the Supreme Court in a recent case before it being entitled Mrs. Munawar Sanni v. Director Army Education . In that case the appellant approached the High Court by way of a writ petition seeking a declaration that the impugned order refusing the payment of arrears of salary payable to her, was passed without lawful authority and was of no legal effect. The High Court, however, refused to accept this prayer on the ground that the relief sought by the appellant was, in fact, a money claim, for which the appropriate remedy was the Civil Court. It further observed that if the appellant was of the view that any of the terms and conditions of her service had been violated, the proper venue for vindication of such a claim was either the higher appropriate authority under the rules or the Service Tribunal. Consequently, the approach of the appellant to the High Court in its constitutional jurisdiction was inappropriate. Her writ petition was accordingly dismissed. However, on the appeal filed by her the Supreme Court did not view with approval the technical objection and observed :- "After hearing learned counsel for the parties, we are of the view that in case the appellant was, indeed, entitled to receive the arrears of her salary, during the entire period that she was kept out in service by an order of termination which was found to be unlawful the authorities should honour5 her claim for payment of arrears of the salary. The question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of the bounden obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post."
6. It is really a pity that the Establishment Division, which is considered to be a custodian of service rights of the civil "servants, take shield of technical pleas with a view to avoid the adjudication by this Tribunal of a matter relating to the terms and condition of a civil servant.' We, therefore, consider it our sacred duty to advise the Establishment Division to shed this unreasonable and unjust attitude and to set an example for others in the matter of disposal of representations/objections and finalization of seniority lists in respect of the groups with which they are concerned. There can be no two opinions that seniority lists required to be maintained not only for the proper administration of service, cadre, or grade but also for the efficient functioning of the administration itself. Indeed by virtue of section 8 of the Civil Servants Act, 1973, it is now a legal obligation of an appointing authority to cause such lists to be prepared and maintained up-to- date. It is very unfortunate that the seniority lists of the officers of the Secretariat Group, which was initially constituted on 21st February, 1975, should remain provisional till to date and should simultaneously be acted upon.
' It may not be out of place to mention here that "Foreword" to the 1981 list in its para. 4 says that inclusion of a name in these- lists by itself, does not amount to the validation of irregular appointment What would be the position of an irregular appointee who is promoted to the higher post on the basis of a wrong position assigned to him in these lists ? We leave it to the imagination of those who may be concerned with the administrative and financial aspects of the problem.
7. Adverting to the merits of the case we find that the most important point for the purpose of disposal of this appeal is whether the appellant is entitled to count seniority in the gradation list of the Deputy Secretaries with reference to 1st November, 1974 when he was promoted and appointed as Officer on Special Duty or with reference to 24th October, 1978 when he was formally appointed as Deputy Secretary to the Federal Government. It is first to be seen that subsection (4) of section 8 of the Civil Servants Act, 1973, provides that seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. Para. 8 of the Establishment Division 0: M. Dated 12th April, 1976, whereby the Secretariat Group was reconstituted, also says that seniority of Deputy Secretaries in the Secretariat Group is to be determined from the date of continuous regular officiating as Deputy Secretary, or in a post in Grade-19, whichever is earlier. The appellant's case is that the posts of Officer on Special Duty and Deputy Solicitor to which he was appointed prior to his formal appointment as Deputy Secretary to the Federal Government, carried the same pay scale as admissible to the Deputy Secretary and were, therefore, to be treated in Grade-19 ; and since he was continuously officiating in Grade-19 post of Officer on Special Duty/Deputy Solicitor/Deputy Secretary with effect from 1st November, 1974 on regular basis, he was entitled to count seniority from the same date. The Establishment Division conceded that the seniority of the Deputy Secretary is determined from the date of continuous regular officiating as Deputy Secretary or to a post in Grade-19 whichever is earlier but contended that the posts of Officer on Special Duty and Deputy Solicitor were not in Grade-19 and, therefore, the appellant could not be given seniority from the date of his promotion as Deputy Solicitor. However, during the course of hearing Mr. A. H. Zuberi, Joint Secretary, representing the Establishment Division, conceded at the bar that if this Tribunal came to the conclusion that the posts of Officer on Special Duty/Deputy Solicitor/Deputy Secretary carrying pay in Grade-18 plus special pay of Rs, 440 were notionally in Grade-19 or that the posts of Officer or Special Duty and Deputy Solicitor held by the appellant on his promotion were in the same grade as carried by the Deputy Secretary to the Federal Government then the appellant was entitled to count seniority from 1st November, 1974. Now therefore, what remains to be determined is as to what was the status and grade of the posts of the 0. S. D. Deputy Solicitor. The appellant has explained by producing before us, the relevant Government orders contained in page 324 of the Estacode and Serial Nos, 9, 13 and 21 of section 11 of Compilation of Orders relating to the scheme of National Pay Scales which show that on the introduction of National Pay Scales the post of Deputy Secretary was placed in N. P. S.
19. Later on, as pay in N. P. S. 19 did not suit the promotee Deputy Secretaries, they were given the option to retain N. P. S. 18 plus a Special Pay of Rs, 440 p. m. Likewise, as N. P. S. 18 plus Special Pay of Rs, 440 did notsuit the lateral entrancs they were allowed to retain N. P. S.
19. The Representative of the Establishment Division conceded that some Deputy Secretaries have been drawing pay in N. P. S.-19 while others in N. P. S. 18 plus Special pay of Rs, 440 p. m. Simply it is not conceivable that some of the posts of the Deputy Secretary could be in Grade-19 while some others in Grade-18 (plus Special Pay). The option to the incumbents to elect either N. P. S. 19 or N. P.
S. 18 plus Special Pay of Rs, 440 clearly shows that the two were equal and quite obviously the officers in N. P. S. 19 could not be placed in Grade-I8. As a necessary corollary, therefore, the officers; drawing pay in N. P. S. 18 with Special Pay of Rs, 440 p. m. Had to be placed in Grade-19. This view is further supported by the fact that the Establishment Division vide 0. M. Of 21st February, 1975 initially constituting the Secretariat Group itself conceded that posts of the Deputy Secretary would be deemed to be posts in Grade-19. It was, however, argued by Mr. Zuberi that the concession had been omitted in the 0. M. Of 12th April, 1976 and, therefore, could not be relied upon. This argument, on the face of it, is untenable. The 0. M. Of 21st February, 1975 remained operative uptil 11th April, 1976, which means that at least till then the post of Deputy Secretary was deemed to be in Grade-
19. With effect from 1st January, 1978 the post has been formally placed in Grade-19 vide Finance Division 0. M. Dated 18th January, 1979. This being the position, we are not prepared to accept that during the period from 12th April, 1976 to 31st December, 1977 the posts had been downgraded to Grade-18 despite the fact that the financial status of the posts remained unchanged and Deputy Secretaries continued to remain tagged with Grade-19 officers for the purpose of seniority. In any case, such a down-gradation could not be affected without the specific orders of the Government.
It may be pertinent to mention here that Respondent No, 66, Mr. Muhammad Rafiq Asghar, who was a Deputy Secretary in the Ministry of Finance at the time of the hearing of appeal and has in the meanwhile been promoted as Joint Secretary in the same Ministry, supported the appellant's case in this behalf. Although he was not officially representing the Ministry of Finance yet since he has been working in that Ministry for quite a some time and appeared to be a knowledgeable officer thoroughly well-versed in the relevant rules and regulations, we are obliged to give due consideration to his opinion in this regard.
8. The appellant further produced before us a copy of another letter, dated 12th July, 1973 of the Government which clearly shows that the post of the Officer on Special Duty (held by the appellant) was sanctioned in the Law Division with the status of Deputy Secretary. Similarly the sanction letter, dated 20th April, 1960 shows that the post of Deputy Solicitor was sanctioned with the pay admissible to a Deputy Secretary. Yet another letter of the Law Division dated 12th February, 1975 shows that Mr. S. A. Nizami was appointed as Deputy Solicitor with the status of Deputy Secretary, while a D.
0. Letter of the Establishment Division, dated 29th December, 1966 speaks that "in view of the past practice the Central Selection Board had approved the proposal of grant of status of Deputy Secretary to Mr, A. F. S. Rehman while holding the appointment of Deputy Solicitor in the Law Division". Lastly but most pertinently para. 3 of the then Law Secretary's D.
0. Whereby the appellant's case for promotion was initiated is reproduced below with advantage :- "3.- - Mr. S. A. M. Wahidi is an experienced Section Officer in Grade-18. He was promoted as Section Officer in the 2nd batch as a result of review of his case. He has been working as such since 1961 and has been in this Division as incharge of Solicitor's Section since June, 1970. He is the senior most Law graduate Section Officer in this Division. Solicitor and other officers of the Division have been speaking highly of him, and for whatever work I have seen of him, I am also of the opinion that he can acquit himself well if he is promoted as Deputy Solicitor (Deputy Secretary). In fact, his services were specifically asked for by my predecessor, Mr. Justice Qazi Muhammad Gul, from the Labour and Social Welfare Division, and it was with great reluctance that Division agreed to spare him for us. I would, therefore, strongly recommend that Mr. Wahidi may be promoted as Deputy Solicitor in the vacancy of Mr. Nizami."
9. We have noticed that the above proposal was considered by the Central Selection Board in its meeting held on the 24th of September, 1974. Approving the proposal, the said Board cleared the appellant for promotion as Deputy Solicitor out of turn because of his extra legal qualification and experience. In the circumstances and the factual position, mentioned above, we consider this a case of regular promotion to the grade of Deputy Secretary and further held that the posts of Officer on Special Duty/Deputy Solicitor held by the appellant during the relevant period were quite equivalent to and comparable with the post of the Deputy Secretary. The fact that he was subsequently in 1978 formally appointed as Deputy Secretary to the Federal Government, in the circumstances, makes no difference. We are, therefore, safe in concluding that the appellant is entitled to count seniority in the grade of Deputy Secretary with reference to 1st November, 1974, the date on which he was appointed as Officer on Special Duty and since when be is continuously officiating as Deputy Secretary or in a post in the same grade.
10. The appellant next contended that lateral entrants are not eligible for induction in the Secretariat Group under the 0. M. Of 12th April, 1976 and in any case they cannot count seniority with reference to their so-called merit position. It was further submitted that the lateral entrants who were reverted or removed from service as a result of review of their cases under section 12-A of the Civil Servants Act, 1973, but were later on reappointed, could be allowed seniority only with reference to the dates of their reappointment as Deputy Secretary. He argued that para. 3 (i) of the Establishment Division 0. M. Dated 21st February, 1975 which initially constituted the Secretariat Group provided for appointment of Deputy Secretary by selection on the basis of examination and interview, etc., held periodically for lateral entry to senior posts in the Federal Secretariat. When this
0. M. Was superseded and the Group was reconstituted, on 12th April, 1976 no similar provision was made, as was done in the case of Office Management Group, for the induction of officers already appointed as Deputy Secretaries through lateral entry into the reconstituted Secretariat Group.
However, in view of the fact that quite a good number of officers had been appointed as Deputy Secretaries through lateral entry and allowed to continue as such after 12th April, 1976, the appellant did not press this issue. He nevertheless pointed out that in 1973, 1975 and 1976 lists, the lateral entrants had been assigned seniority with reference to their respective dates of appointment as Deputy Secretaries. But in the impugned list of 1981, the order had been abruptly changed allegedly based on the order of merit. Mr. Zuberi, on behalf of the Establishment Division, argued that it was only fair and reasonable that in accordance with the general principles of seniority embodied in Annexure-1 to serial No, 129, Chapter I, of the Estacode, the officers selected in one batch should be allowed seniority in the order of merit. He emphasized that if earlier the lateral entrants had been allowed seniority with reference to their dates of appointment that was a wrong action on the part of the Establishment Division and what the Establishment Division has now done was only a rectification of a wrong.
11. The appellant pointed out and respondents Nos, 32, 66 and 165 supported him that when the results of the lateral entry examination were announced the merit position of the qualifying candidates was not declared and they were not offered the appointments even in the order in which the results had been announced. It was further revealed that at least 19 officers had been appointed as Deputy Secretaries allegedly on the basis of the lateral entry examination although their names had not been included in the announced results. It was also stressed that in view of what has come out in the White Paper on "The Performance of the Bhutto Regime", at pages 158 to 165 of Volume II and in view of admitted irregularities committed by the Establishment Division in the matter of conducting the lateral entry examinations and selection of candidates no credence could be given and even no basis could be adopted for the so-called merit position now surreptitiously determined by the Establishment Division nearly seven or eight years after the selections were made. It was added that even after review by the present Administration the persons who had qualified the lateral entry examination and secured better position but were wrongly left out had not been appointed as Deputy Secretaries on the basis those results while persons with lesser merit or even those who had failed in those examinations were appointed and are still continuing. It was stated that the seniorityn of the lateral entrants was all along maintained with reference to their dates of appointments and the matter stood settled vide Establishment Secretary's D.O. Dated 4th October, 1977 and in the face of the decision contained therein, seniority of the lateral entrants could not be now 1 refixed with reference to the so-called merit position which has never been disclosed.
12. ' It may here be added to place it on the record with reference to the allegation made by the appellant and by respondent No, 66 that at least 19 officers including Mr. A. H. Zuberi, who was representing the Establishment Division in the instant case, had been appointed as Deputy Secretaries purportedly through lateral entry examination although their names were not included in the announced results, that on going through the announced results we found the allegation to be correct. Attempting to rebut the allegation Mr. Zuberi had stated that in 1974 two panels of the successful candidates were drawn but only one penal was released to the Press while the other was not. He, however, could not give out any reason whatsoever for withholding the second panel and although we asked him to show us the relevant record, including the two panels and the merit list of the lateral entrants yet nothing has been shown to us in rebuttal of the appellant's claim till this date which by itself leads to an irresistible conclusion that the stand taken by Mr. Zuberi has no legs to stand on. Be that as it may, it becomes manifestly evident, as stated above, that a number of persons though did not qualify in the lateral entry examinations, according to the announced results, yet, strangely enough, not only were appointed as Deputy Secretaries but now are being allowed undue seniority on the basis of so-called merit position. Not only this, the Establishment Division utterly failed to point out or show even the basis or the criteria of the alleged merit position.
Needless to say that the general principle of seniority referred to by. Mr. Zuberi can be made applicable, if at all, only for the purpose of determining the inter se seniority of the persons who are selected in one batch but this principle cannot, and certainly not be availed of for the purpose of adversely affecting the right of seniority of other members of a service or a Group. The general principles of seniority were formulated in 1970 when the concept of `Lateral Entry' was not even known to the Administrators in Pakistan. These principles do not, therefore, apply to the lateral entrants who are an admixture of direct recruits and promotees. In any case, in the absence of any rule having been framed under section 8 (3) of the " Civil Servants any1973, for the determination of seniority of the lateral entrants, within the Secretariat Group, we cannot allow one of the principles of seniority in insolation so as to impair the rights of the other members of the Group specially when no credibility can be givens; to the so-called merit position of the lateral entrants now determined and for which even the lateral entrants could not have possibly clamoured as the merit position has never been made public not even shown to us. It is thus quite clear that the Establishment Division had no lawful authority to alter the principle of lateral entrants seniority adopted in the gradation lists of 1975 and 1976 and which even stands incorporated in Establishment Division D. O. Dated 4th October, 1977 (printed at page 114, Serial No, 132 of Estacode).
Indeed, it has been persistently held by the superior Courts and is being followed by all the Courts and Tribunals that mala fide literally means "in bad faith". Action taken in bad faith is usually an action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motive either to hurt the person against whom the action is taken or to benefit oneself or some other persons. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken are also mala fides. As stated above, the appellant has established to our entire satisfaction that the seniority assigned to the lateral entrants on the so-called basis of merit position after about eight years of their selection is totally illegal and mala fide and is accordingly set aside and it is held that the lateral entrants should be assigned seniority with reference to the dates of their continuous officiation as Deputy Secretaries as directed by the Establishment Division itself in its D.
0. Of 4th October, 1977 (supra).
13. The appellant further laid great emphasis on his submissions that the 1976 list of the Secretariat Group was final and the principles of seniority on which those lists were based could not be altered retrospectively at any later stage, and that the officers of the former C. S. P. Cannot be allowed seniority as Deputy Secretary on completion of 8 years of their induction into the C. S. P. As has been wrongly done by the Establishment Division. It would suffice to say in this connection that the Full Bench of Tribunal is seized of these questions in Appeal No, 116 (R) of 1981 filed by Mr. Ramizul Haq. The judgment on these points in that appeal would be made applicable to this case as well.
14. The appellant then submitted that officers belonging to other occupational groups not included in 1976 list of the Secretariat Group cannot be inducted in the Secretariat Group except in accordance with the method of appointment indicated in para. 3 of the Establishment Division 0. M.
Of 12th April, 1976 whereby the Secretariat Group was reconstituted. It would suffice to say in this regard that according to para. 3 of the Establishment Division's aforesaid 0. M., dated 12th April, 1976, appointment to the post of Deputy Secretary is to be made in accordance with the following methods :- "(1) By promotion of Grade-18 officers of the Office Management Group and the Secretariat Group on the recommendations of the Central Selection Board.
(ii) By horizontal movement from other Occupational Groups of Grade-19 Officers who have been recommended by the Ministries/ Divisions/Departments or Provincial Governments and have been found fit by the Central Selection Board.
(iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc. As may be prescribed.
' The appellant contended that any induction into Secretariat Group in violation of the above method was irregular. He gave out a list of officers who originally did not belong to the O.M.G./C.S.S. And whose names were not included in 1976 list of Grade-19 Officers of the Secretariat Group but their names stood included in the impugned list of 1981. His argument was that since the 0. M. Of 12th April, 1976 does not survive the induction made in pursuance of the 0. M. Of 21st February, 1975, the officers appointed as Deputy Secretaries in accordance with any method other than one provided for by the 0. M. Of 12th April, 1976 could not be inducted in the Secretariat Group. However, when we pointed out to him that quite a good number of such persons had been appointed as Deputy Secretaries prior to 12th April, 1976 and have continued as such thereafter, he stated that he would not press this issue. He. However, insisted that since option had been given only to those officers belonging originally to some other group who had been shown in the Secretariat Group in 1975 list, the concession would be admissible only to such officers whose names had been shown in the 1975 list and who then opted to remain in the Secretariat Group. Any officer not belonging to the 0. M. G./C. S. S. Cannot be inducted in the Secretariat Group after 12th April, 1976 except in accordance with the method of appointment provided for in the 0. M. Of 12th April, 1976. f he contention seems to carry force and at least could not be rebutted by the Establishment Division.
However, on our minute scrutiny of the lists it is observed that most of the officers failing in the category were shown in Grade-18 in 1976 in the gradation list of the Secretariat Group. Their retention in the Secretariat Group would, therefore, be in order. We, however, leave it to the Establishment Division to reverify their position and if any officer originally belonging to some other group is found to have been inducted in the Secretariat Group after 12th April, 1976 except in accordance with the method of appointment provided for in the O.M. Of 12th April, 1976, his name should be removed from the list.
15. Besides the Establishment Division, respondents Nos, 32, 60, 66, 67, 75, 114, 136, 137, 159, 169, 178 and 230 had also filed written objections. Respondents Nos, 32, 66 and 165 appeared at the time of hearing as well. Their contentions have been given due consideration by us and stand disposed of in the above discussions. Nevertheless, we would like to add a few words about the contentions and submissions of respondent No,
32. He contended that although it was a fact that he never took the lateral entry examination yet his appointment as Deputy Secretary in the Secretariat Group was in order and had been even the subject-matter of adjudication by the Supreme Court. The appellant did not press his claim of seniority over respondent No, 32 and stated that he had mentioned his case only to show that persons who had not even applied for lateral entry examination had been shown to have been inducted in the Group on the basis of those examinations and as such the credibility of the Establishment Division, in this behalf, was not free from doubt. However, respondent No, 32 made his submissions in great detail and availed of this opportunity to show how injustice had been done to him by the Establishment Division. He further explained the circumstances in which a wrong and irrelevant gradation list of Grade-19 Officers of the Secretariat Group was produced before the Supreme Court in his case to show that on his appointment as Deputy Secretary he had been inducted into the Secretariat Group and would be considered for promotion on his turn when in fact persons far junior to him on that list had already been promoted as Joint Secretary. There seems a great substance in the allegation and it appears to us that in his case the gradation list produced before the Supreme Court by the Establishment Division was not correct one. Since, however, that aspect of the matter has no direct bearing on this appeal and is more appropriately being dealt with in the case of Mr. Ramizul Haq, referred to above, and that respondent No, 32 has filed a detailed written arguments in this case which have been placed on record .We do not consider it necessary to dilate upon it here and leave it accordingly.
16. As a result of the above discussions we hold that the appellant is entitled to count his seniority in the grade of Deputy Secretary in the Secretariat Group with all consequential benefits w. e. f. 1st November, 1974, the date on which he was appointed as Officer on Special Duty (Adaptation) and, to be more specific, that his name shall be placed in the gradation list of 1981 just after the name of Syed Mohibullah Shah (Serial No, 127 of the list). This will, of course, be further subject to the decision on the appeal of Mr. Ramizul Huq. It is further directed that lateral entrants are to count seniority with reference to the dates of their appointments as Deputy Secretaries and thus respondents Nos, 51, 57, 59, 61, 62, 64, 74, 80, 83, 88 to 96, 98, 99, 105, 107, 109 to 111 and 113 (shown at Serial Nos, 55, 61, 63, 65, 66, 68, 79, 85, 88, 93 to 101, 103, 104, 110, 112, 114 to 116 and 118 respectively of the gradation list) who are all lateral entrants and were appointed as Deputy Secretaries after 1st November, 1974 are declared junior to the appellant. Likewise, respondents Nos, 2 and 17 (shown at Serial Nos, I and 16 of the gradation list) were appointed as Deputy Secretaries in 1977 and who have not defended their position in this Tribunal are also declared junior to the appellant. Respondents Nos, 24, 31, 34 and 72 (shown at Serial Nos, 25, 33, 36 and 76, respectively of the gradation list) were reverted/removed from service as a result of exercise under section 12-A of the Civil Servants Act, 1973, but were later on reappointed in service. It was notified vide Establishment Division Notifications dated 16th and 17th January, 1982, that their appointments have been approved with effect from the dates they have been appointed afresh after removal/reversion from service. In terms of these notifications their cases also cannot be treated as those of re-instatement and they will accordingly take their seniority from the dates they were reappointed after removal/reversion from service. These lists given by us may not be exhaustive. The Establishment Division, therefore, should scrutinize the gradation list and if there is any other officer above Serial No, 127 in the impugned list who falls within these categories he will also get the same treatment.
17. There shall be no order as to costs. The security deposited by the appellant should be refunded to him.
' BRIG. (RETD.) ABDUR RASHID (MEMBFR).-While agreeing with my learned colleague, I wish to add that the restlessness and insecurity among the civil servants clearly visible in appeals before us as in this appeal, is eating into the vitals of our administrative structure. The reason for this is traceable to the Establishment Division. They have to this day, and after a lapse of more than 10 years when our first constitution took less time than this, felt no urgency to issue rules under subsections (2) and (3) of section 8 of the Civil Servants Act, 1973. I have no doubt that the Establishment Division can easily perform this function very easily and quickly.
20. The other important issue is that of seniority lists under section 8 (1) of Civil Servants Act, 1973.
We can say with authority that this field also needs a serious attention. Every list is marked "provisional" due to one reason or the other in utter violation of the rules which lay down that only the first seniority list is to be provisional and every other list final. The issuance of seniority lists has no systematic periodicity. The last final list of Secretariat Group was issued on 14th June, 1976.
Thereafter, the Establishment Division went into hibernation for over five years and came out with seniority list in mid-1981 and thereafter. These lists contained such gross errors and alterations that they would keep the civil servants in a state of endless litigation all at the cost of the administration for which the civil servants are primarily meant.
21. We are also convinced that there is no proper system of maintaining the seniority lists and this is amply borne out from such various lists appearing before us from time to time.
22. I have no doubt that the situation has reached a stage where the civil servants have to fight for their rights which should actually be conferred upon them automatically and as a matter of course.
23. To conclude, I would say that the Establishment Division must do the following at the earliest :
(a) Issue final seniority lists at regular yearly intervals corrected upto 31st December, which must be circulated in the first week of February, of the next year, objections for errors/omissions invited and disposed of and final lists corrected upto 31st December, again circulated in the first week of February. This cycle system is a must and without this the streamlining cannot take place.
(b) Such rules as are required to be framed under the Civil Servants Act, 1973, must be framed at the earliest and introduced well before the December, 1984 issue of seniority lists, as suggested, come out. PLD 1981 SC 612 1981 PLC (C S) 203 1982 SC MR 408 PLD 1981 S. C. 81 1984 SC MR 351 2 3 4 5