' ABDUR RASHID (MEMBER).-In this contest of inter se seniority between the appellant, Ziaul Hag v.
Respondents No, 2 (Abdul Ghani Qamar) and No, 3 (Fateh Muhammad Nasim), the facts are that five instructors (Grade-17) were selected by the F. P. S. C. In the following order of merit as assigned by the said Commission and released vide their letter dated 19th February, 1978 :-
(1) Abdul Ghani Qamar.
(2) Fateh Muhammad Nasim.
(3) ... ... ... ...
(4) Zia-ul-Haq.
(5) Ch. Muhammad Altaf.
2. The Ministry of Education on 22nd March, 1978, issued an identical letter of selection to each of the selectees by name and solicited their acceptance of the offer made in the said letter. Para. 3 of the Ministry's letter, dated 22nd March, 1978, being of special significance, is reproduced "3. He should report for duty immediately but not later than 15 days from the date of issue of this letter."
' In other words, each one of the selectees was required to report for duty latest by 5th April, 1978. Of the above-mentioned selectees, the Gazette Notification as to the selectees, who did join, was published on 9th April, 1978 and gave the following names with dates of joining :- Name Joined on Zia-ul-Haq (Appellant) 26-3-1978 (F. N.)
Ch. Muhammad Altaf 1-4-1978 (F. N.)
Abdul Ghani Qamar (respondent No. 2)8-4-1978 (F. N.)
' Respondent No, 2 joined on 8th April, 1978 instead of 5th April, 1978 and was, thus, late by three days. Respondent No, 3 did not join at all till the date of Gazette Notification viz. 9th April, 1978.
However, he finally joined on 16th October, 1978.
3. On 27th July, 1980, a seniority list of five selectees of the batch under appeal, was circulated wherein the inter se seniority assigned to respondents Nos, 2 and 3 was higher than that of the appellant and was as assigned by the F.P.S.C., despite the fact that both of them had joined their new assignments beyond the period of 15 days allowed for the purpose. The appellant saw the seniority list, dated 27th July, 1980, which is now impugned, on his return from training abroad on 22nd September, 1980. Aggrieved by the said list, he preferred a departmental appeal on 16th October, 1980, which was turned down vide letter, 12th June, 1982. Thereafter, he came up in appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973 which is being disposed of by this order.
4. As a result of arguments before us from the two sides, we shall take up the claim of the appellant against respondent No, 2 and thereafter against respondent No, 3.
5. It is an admitted position that respondent No, 2 (Abdul Ghani Qamar) had been relieved of his previous appointment vide Government High School, Makhdoomali, Multan letter No, 39/MA, dated 5th April, 1978. He reached Islamabad late on 6th April, 1978 and 7th April being a Friday, he joined his new appointment on 8th April, 1978. We are, therefore, satisfied that it was beyond his control to join at Islamabad A on 5th April, 1978 and as such the earliest he could join was on 8th April, 1978 which he did. Such being the circumstances we reject appel lant's claim of seniority over respondent No, 2.
6. As regards respondent No, 3 (Fateh Muhammad Nasim), he failed to join by 5th April, 1978.
Instead, he applied for one month's extension which was allowed him by Secretary Education on the clear understanding that no further period would be allowed beyond 5th May, 1978. This extension was permitted vide Education Ministry's letter No, 3-51-78/FCE, dated 27th April, 1978 and it is noteworthy that respondent No, 3 received this letter in person when he was in Islamabad.
Again, he failed to join. Instead, he sent a "joining report", dated 22nd May, 1978 through a registered letter No,
167. We are not aware of any such method of joining one's appointment ! ! Thereafter, the said respondent came to Islamabad on 6th June, 1978 to take up his appointment. He discovered that his offer of appointment had, in the meantime, been cancelled by the Ministry of Education.
This had been done with the approval of Secretary, Education. The respondent in his written statement has said that he came to know of the cancellation of his offer of appointment on reaching Islamabad on 6th June, 1978. On the other hand, the perusal of Ministry's file by us, reveals that he had been informed of the said cancellation vide letter No, F.
3.51/78- FCE, dated 23rd May, 1978 and he should have received this letter before 6th June, 1978.
However, after discovering that the offer of appointment had been cancelled, respondent No, 3 (Fateh Muhammad Nasim) sent in an application No, P. 104, dated 7th June, 1978. This is a pretty vaguely worded application. It does not, even remotely, give any reason for his remaining away from his new appointment. It is, however, a request from the respondent to he informed as to when he should join. This application, dated 7th June, 1978 (from the respondent) was dealt with by the Ministry of Education letter No, F. 3-51/78- FEC, dated 27th June, 1978 addressed to Fateh Muhammad Nasim and, being pertinent, is reproduced :- "Reference your application bearing No, P. 104, dated 7th June 1978 . I am directed to say that the case was considered at the highest level in the Ministry of Education and the decision already conveyed to you vide letter No, F. 3-51/78, dated 23rd May, 1978 is the final and the case has been closed. In the above circumstances, it is requested that no correspondence should be made in future.
(Sd.)
(M. A. BEGG), Deputy Secretary"
7. After the above-quoted letter, he entered into correspondence (inclusive of F. P. S. C.) to have his candidature restored. As a result of his appeal to the C. M. L. A., Government of Pakistan, Ministry of Education letter No, 3-15/FCE., dated 8th October, 1978 addressed to the F. P. S. C. Was endorsed to the respondent, on 8th October, 1978 and received by him, on 14th October, 1978 whereafter he joined, on 16th October, 1978. This letter is quoted below :- "Subject ............................ Case of Mr. Fateh Muhammad Nasim ' I am directed to refer to your letter No, F. 4/3I2/77-R, dated 15th and 27th August, 1978 on the above subject and to say that on compassionate ground it has been decided to allow Mr. Fateh Muhammad Nasim to join his post immediately in the said college Mr is being informed accordingly."
8. We heard the respondent concerned as well. All that he could say was that his mother was sick and that this reason kept him away from joining in time. When, however, the learned counsel for the appellant stated at the bar that the respondent had another brother to look after the mother and that this ground did not constitute a compassionate reason for not joining despite extension, it was not controverted by respondent No,
3. Apart from this, we know from the respondent himself that he did come to Islamabad in April and June, 1978 but then his offer of appointment had been cancelled. There is, therefore no reason for us to place credence in the medical certificate of his mother's illness which the respondent has produced. We are irresistibly led to believe in the truth of the appellant's assertion when he says (para. 8 of appeal)
Fateh Muhammad Nasim was asked on telephone to produce documentary evidence so as to justify his late joining. He accordingly, submitted a medical certificate of his mother's illness. It is interesting to observe that the period of his mother's illness mentioned io the medical certificate is precisely the same for which he had delayed his joining i. e. From 5th May to 15th October, 1978. In other words, if the medical certificate were to be believed, his mother fell ill on precisely the same date (5th May) on which he was required to join his appointment, at the latest, and she recovered on 15th October, 1978, the day preceding the date on which he actually joined his duties."
9. We find a good deal of logic and force in the above quotation. We have, therefore, no doubt in our mind that respondent No, 3 has utterly failed to convince us of any compassionate grounds which prevented him from joining in time. We cannot, also, lose sight of the fact that the offer of appointment to the respondent had been cancelled. He was subsequently appointed purely on humanitarian grounds as a result of his appeal to the C. M. L. A. His appointment would, therefore, be treated as an appointment without the privilege of merit assigned be the F. P. S. C. Which was valid upto a given time and NOT unto infinity. Those who have allowed respondent No, 3 his F. P. S. C. Merit position 6 (1/2) months after his joining, without genuine reasons, have failed to appreciate that if the respondent had rights, which he had actually lost by joining upto 5th May, 1978, the appellant, too, had acquired rights which had accrued to him by joining well within time and that these rights were older and more established than those of the respondent. (Fateh Muhammad Nasim).
10. In view of the foregoing analysis we hold that the seniority of respondent No, 2 has been correctly assigned to him and that the appellant can have no claim against him. Respondent No, 2's date of joining would be 8th April, 1978. We do, however, accept appellant's claim of seniority against respondeat No,
3. Respondent No, 3 would, therefore, be relegated to the bottom-most position of inter se seniority as shown in the said list, dated 27th July, 1980.
11. Alongwith this appeal, we also heard Appeal No, 138(R)/82 (Ch. Muhammad Altaf v. Secretary Ministry of Education etc.). Since there are identical facts and law points in both the appeals, this single order shall dispose of the said Appeal No, 138(R)/82 as well.
12. Ordered accordingly with no costs.