1. SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212 of the Constitution in four petitions, to filed by the Federation of Pakistan and to others filed by direct recruits to the posts of Assistant Works Manager, Pakistan Ordnance Factories, Wah, to examine a number of questions of law arising out of a decision of the Service Tribunal dated 23rd of April, 1983 determining the seniority of the departmental promotees as against direct recruits.
2. The to contesting respondents S.M. Sharif Naqvi in one and Azam Ali in the other were working as Foremen in N.P.S.10 when in 1975 they were considered suitable by the Departmental Promotion Committee and were in fact promoted as Assistant Works Managers f NPS 17) on 14th of April, 1976.
3. The other private appellants are the direct recruits of the year after April, 1976 and up to 1978. In the first seniority list that was issued on 29th of October, 1976 the departmental promotees were given their seniority from the date of their promotion i.e. 14-4-1976 and at that stage, it appears there was no question of their being matched against the direct recruits. It was after their promotion that certain direct recruits were inducted as Assistant Works Manager up to the year 1978. Another seniority list issued on 15th of June, 1980 wherein the direct recruits as well as the departmental promotees were listed. The nature of the appointment of departmental promotees was in this list for the first the shown to be ad hoc and they were shown junior to the direct recruits who had joined service up to the year 1978. The departmental promotees objected and then formally represented to such a treatment but their representation was finally rejected on 17th of March, 1982.
4. In this background of events to appeals were instituted by the affected departmental promotees before the Service Tribunal challenging their being treated as ad hoc appointees and their being placed junior to the direct recruits. The appeal was contested by the direct recruits as well as by the Government who took up the plea that the appeal before the Service Tribunal was the-barred; that the representation had not been filed to the proper authority and that provisions of section 22 of the Civil Servants Act were not of avail to the appellants before the Tribunal for enlarging the period of limitation. On merits it was contended that section 9 of the Civil Servants Act (hereinafter referred to as Act) entitled the departmental officers to be promoted only against the quota reserved for them and if such promotions had taken place against the reserved quota then alone it could be called regular and they could match their seniority with the direct recruits. If their promotion had been made against the quota of direct recruits pending the direct recruitment then such an appointment on the express word of the Act (S. 2(1)(a) of the Act) had the character of an ad hoc appointment and no authority had the power to override the provisions of the Act and it was not in fact done.
5. The Service Tribunal held that the appeal was within the as the representations of the concerned appellants before the Tribunal were finally rejected on 17th of March, 1982 and they filed the appeal within one month thereof. The Service Tribunal on the strength of words used in section 2, subsection (1), clause (f) read with its subsection (2) and rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 held that the promotion of the contesting respondents was in every sense a regular appointment in the manner prescribed under the law and once having been regularly appointed the nature ~of their appointment could not be changed into ad hoc appointment. The Tribunal could discover no rule whereby "an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade." The Tribunal also found "it wholly against all notions of justice that a person who joins service in a grade first should be relegated to the junior position as against those who join later merely because they fill vacancies which were deemed to be reserved for them".
6. The general principles of seniority (Page 153 Esta code 1983 Edition) circulated in 1970 were found to offend against section 8, subsection (4) of the Civil Servants Act and for that reason not saved under section 25, subsection (2) of the Act. On these findings the appeals of the contesting respondents were allowed and their seniority was re-fixed as originally determined giving them the benefit from the exact date of their promotion irrespective of the fact whether such promotion had been made against their reserved quota or against the quota of the direct recruits.
7. Leave to appeal was granted in all the four petitions, to filed by the direct recruits and to by the Federal Government to examine the following questions of law:- "(1)Whether the interpretation put by the learned Tribunal on rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 is correct?
8. (2)Whether the definition of the word "regular" in clause (i.e) of paragraph B of the General Principles of Seniority offends the provisions contained in subsection (2) of section 2 of the Civil Servants Act, 1973?
9. (3)Whether the principle regarding seniority contained in sub-clause 'C' of clause (i.e) of paragraph B of the aforesaid Principles, is repugnant to the provisions of section 8(4) of the Civil Servants) Act, 1973?
10. (4)Whether the principles contained in sub-clauses (a) and (c), clause (i.e) of para. B of the aforesaid Principles of seniority are inconsistent with the provisions of the Civil Servants Act, 1973 and are not covered under section 25(2) of the same Act and have ceased to be applicable after promulgation of the said Act (5)Whether it is lawful under section 22 of the Civil Servants Act, read with paragraph 3 of Establishment Division O.M. Dated) 1-9-1974 (para. 106 of Esta code) to treat the "second" seniority list as "provisional"?
11. (6)Where an adverse decision has been taken by the Defence/ Production Division, whether the aggrieved civil servant in Grade-17 can file departmental representation to the Chairman, P.O.F. An authority subordinate to the Defence Production Division or whether the appeal shall lie to the President of Pakistan as the next higher authority? '
12. (7)Where a departmental appeal has been filed to a lower authority, can the "higher" authority extend the period of limitation of appeal or representation?
13. (8)Whether the principle laid down in the Esstt. Division letter, dated 31--12-1970 offends any provisions of the Civil Servants Act e.g. Sections 2(2) and 8(4) with regard to the provisions of sections 9(1) and 25(2) of the Act and rule 8 of the Appointment, Promotion and Transfer Rules and Annexure to Establishment Division O.M. Dated 29-11-1973."
14. The learned counsel for the appellants urged that the Tribunal has without referring to the decision in Khushi Muhammad and 3 others v. The General Manager (now Vice-Chairman) Pakistan Western Railways Headquarters Office, Lahore PLD 1970 SC 203 re-produced the words thereof at page 10 of its judgment but omitted to take note of to relevant factors. In the first place, in that very decision, it was observed that :- "No rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade."
15. Following this decision of the Supreme Court on 13th of February, 1970 general principles relating to seniority applicable to all federal employees was circulated on 31st December, 1970 and has been taken note of by the Tribunal. It does provide that "in the event of the prescribed departmental promotion quota being exceeded in any particular case or cases the seniority of the person or persons promoted in excess of the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would' have been made if the quota had been properly followed". This instruction had to be read alongwith section 9 of the Civil Servants Act which created an eligibility for departmental employees for promotion to the higher grade only against reserved posts and none else. The Tribunal, according to the learned counsel, not only failed to take note of section 9 of the Civil Servants Act but also ignored its own.
16. Decision on the subject given in the case of Malik Muhammad Amin and others v. Secretary to Government of Pakistan, Ministry of Defence and others 1981 PLC (C.S.) 391.
17. The learned counsel for the contesting respondents on the other hand pointed out that the direct recruits could claim seniority on the basis of subsection (3) of section 8 of the Act. It requires that seniority on initial appointment to a service grade or post shall be determined as may be prescribed. As no rules have been made by the Federal Government relating to the regulation of the seniority of the direct recruits after the enforcement of the Act they cannot at all find a place in the seniority list. The earlier instructions of December, 1970 cannot continue, according to the learned counsel for the respondents under section 25(2) of the Act because not only it is inconsistent with section 8 but also because subsection (3) envisages framing of the rules in future and not continuing the rules already in existence. The learned counsel has also relied on All Pakistan Services (Change in Nomenclature) Rules, 1973. Rule 8 thereof provides that-- "8. Notwithstanding anything contained in any rule, order or instruction, all reservations of posts for purposes of appointment, promotion or transfer in favour of persons belonging to a particular service or cadre, or holding a particular post, are abolished".
18. It is contended that after the enforcement of this rule there remained no reservation or quota for the promotees and the earlier reservations and quotas ceased to exist and once promoted the promotees could claim their promotion from the date they were in fact promoted. Another contention of the learned counsel for the respondents is that the proceedings relating to the selection of the contesting respondents show that the Departmental Promotion Committee had examined their cases, recommended their promotion, which had been approved by the Prime Minister. In so promoting them the quota restriction even if in existence would be deemed to have been waived or altered to the benefit of the promotees and their promotion would be taken to be regular and they would be entitled to count their seniority from that date. In support of this argument reliance has been placed on Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary Food and Agriculture PLD 1971 SC 846 and the decision in the case of Lawyer Magistrates Malik Jahangir Khan and others v. Government of Punjab and others 1984 SCMR 458.
19. Dealing with the questions ad seriatim as contained in the order granting leave to appeal and reproduced above, rule 7 of the Civil Servants Appointment Promotion and Transfer Rules, 1973 provides as follows-- "Promotions and transfers to posts in Grades 2 to 18 shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Grades 19 to 21 shall be made on the recommendations of the Central Selection Board: Provided that posts in Grade 18 which carry a Special Pay would also be referred to the Central Selection Board if proposed to be filled by promotion or transfer."
20. It is correct that in the case of contesting respondents this rule had been followed inasmuch as the Departmental Promotion Committee had processed their cases, recommended them and the competent authority had approved them. This, however, by itself does not create the eligibility or the right nor alters the statutory position. The eligibility or a departmental candidate for promotion has been expressly provided for in section 9 of the Act in the following words (reproduced in extenso)
21. "9. Promotion.-- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the the being reserved under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs. '
22. (2)A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed-- (a)in the case of a selection post, on the basis of selection on merit; and (b)in the case of a non-selection post, on the basis of seniority-- cum-fitness."
23. Both the contentions of the learned counsel for the contesting respondents, that in the absence of fresh rules framed for the purpose of section 8 (3) of the Act, the direct recruits cannot claim any seniority whatsoever against the promotees, and that with the enforcement of rule 8 of Civil Servants (Change in Nomenclature of Services & Abolition of Classes) Rules, 1973, the reservation for the promotees came to an end making thereby section 9 of the Act inapplicable and the regularity of their appointment had to be tested independently of section 9, are untenable. General principles of seniority contained in instructions of December, 1970 being not inconsistent with the provisions of the Act, acquire on the strength of its section 25(2) the character and force of rules under the Act. These instructions are in three parts. The first part (Part A) deals with inter se seniority of direct recruits. The second part (Part B) deals with seniority of promotees. The third part y (Part C) deals with the inter se seniority of the direct recruits and the promotees. These instructions read with the reservation and quota. For promotion do indicate that a promotee can claim seniority against the direct recruits only from the date that his promotion can be adjusted against the promotion quota. In the case of contesting respondents this happened in 1980 and not in 1976 when they were actually promoted.
24. The Civil Servants (Change in Nomenclature of Services and Abolition of Classes) Rules, 1973 accomplish as its very title suggests alteration in the designation of the posts and services and elimination of classes there from. At the same the by rule 5 thereof the members of such service, and the holders of posts are considered as members of Federal Unified Grade. Rule 8 brings to an end not the reservations for promotion and direct recruitment but only such reservations as were made "in favour of persons belonging to a particular service or cadre or holding a particular post".
25. As section 9 itself provides for reservation of quota for promotees the rules framed under the Act could not abolish what the Act permitted. However, the abolition of quota, and reservation wherever they were related to a particular service or cadre or was in favour of holders of a particular post was abolished. In the case of the parties before us the reservation for promotion was not by reference to any particular service, cadre or post and as such it remained unaffected by these rules and the ratio of 25:75 continued to hold good under section 9 of the Act.
26. The cases referred to and relied upon by the learned counsel for the respondent have no relevance to the issue under examination. In the case of Lawyers magistrate, to distinct groups of Provincial Civil Service officers and the Lawyers magistrates had to .Be merged and the Governor had been given by the rules power to assign such seniority as he thought fit to Lawyer magistrates on absorption into P.C.S. In the case of Mukhtar Ahmad, on the other hand the Governor had exercised the constitutional power of recruiting en bloc a group of specialist's on terms which were different from the recruitment rules already existing. It was held "By the Governor's aforesaid order the earlier Recruitment Rules should be deemed to have been modified so far as recruitment to the 46 posts of Asstt. Agricultural Engineers was made".
27. It follows from section 9 of Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent in favour of the direct recruits. The l departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some the in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and. Such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of rule 7 in isolation is not in accord with the express provisions of section 9 of the Act.
28. The definition of the word 'regular' in clause (i.e) of paragraph B of _the General Principles of Seniority is in the following words-- "(i.e)The word regular implies: (a)that the promotion to highest grades were,, made in vacancies reserved for departmental promotion in accordance with the prescribed roster; and (b)that the promotions to higher grades were made in accordance with the prescribed Recruitment Rules i.e. On the recommendation of the Departmental Promotion Committee or the Selection Board (and in consultation with the F.P.S.C. Where such consultation was necessary under the Consultation Regulations) and with the approval of the authority competent to make these appointments; and (c)the promotions to higher grades were kept within the maximum quota prescribed in the Recruitment Rules for Departmental Promotion. In the event of the prescribed Departmental Promotion quota being exceeded in any particular case or cases, the seniority of the person or persons promoted in excess of the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would have been made, if the quota had been properly followed."
29. If section 9 of the Act is not kept in view there may be scope for arguing that the expression 'regular appointment' has been given an extended meaning. However, if the provisions of section 9 of the Act are kept in view then the meaning given to the expression 'regular appointment' will appear to be in accord not only with section 9 but also with the other provisions i.e. Subsection (2) of section 2 of Civil Servants Act; section 8, subsection (4) of the Act and section 2, subsection (1), clause (f) of the Act. There is no inconsistency or repugnancy. On the contrary, it would appear to be in harmony.
30. As the contents of the Circular of December 1970 are not found to be inconsistent with any provision of the Act, they acquire force of rules under the Act on the strength of section 25, subsection (2) of the Act which provides: "Any rules, orders or instructions in respect of any terms and conditions of service of Civil Servants duly made or issued by an authority competent to make them and enforced immediately before the commencement of this Act shall, in so far as such rules orders or instructions are not inconsistent with the provisions of this Act be deemed to be Rules under the Act."
31. The first Seniority List that was circulated in 1976 can be said to be provisional because in para. 3 it was mentioned-- "One copy of the list may kindly be circulated to officers whose names appear in this list for their scrutiny. Discrepancies if any, may please be intimated to this office at an early date".
32. The second Seniority List had no such tentative or provisional character and this is affirmed by the remarks with which it was circulated. It said-- "It is requested that these seniority rolls may please be shown to all the A.W.Ms. On your strength (including those who have since been promoted W. Ms.) and whose names appear in these rolls".
33. This was, therefore, the final Seniority List which issued on 15th of June, 1980 and the Tribunal could not treat it as provisional list. For this reason the objections filed by the contesting respondents would be treated as representation under section 22 of the Act which stood finally disposed by order dated 26-8-1981, leaving no scope for a further representation. However, as the case has been heard on merit and there was also filed an application by the contesting respondents for condonation of delay, we would not non-suit the claim on the ground of limitation alone.
34. The Defence Production Division has not decided the individual cases of seniority. As a matter of fact it had in consultation with the Establishment Division pointed out the law governing the question of inter se seniority of the promotees and the direct recruits. The examination of the individual cases of promotees and the direct recruits, the determination of the question whether the promotion was made against reserved quota or otherwise was all left to be decided by the Board. Under the Pakistan Ordnance Factories Board Ordinance, 1961 (Ordinance XII of 1961) the Board exercises the powers of the Central Government for determining "the terms and conditions of service, recruitment, promotion, transfer, posting, dismissal, discharge, demotion and other disciplinary action of all officers- and employees". The final seniority list was drawn up by the Chief Administrative Officer in the light of General principles of seniority which was held by the Defence Production Division to be applicable for determining seniority. Neither the Chairman, nor the, Board had drawn up the seniority list. In such a situation, a representation, and only one such representation, was competent to Chairman as the next higher authority. He was to finally decide the points raised in the representation. He did so on 26-8-1981 as appears from the following:- "The Chairman, P. O. F. Board, has also decided that the case is to be processed further in the light of Estt. Division, ruling on the subject, the order of seniority of A.W.M.--Promotees vis-a-vis Direct inductees, as already determined and circulated under this Office No. 4119/38/AWM/OF-1/G, dated 15-6-1980, will therefore, stand."
35. The result of our discussion above is that General Principles of Seniority being consistent with provisions of the Act are held to have the force of Rules under section 25(2) of the Act. As the initial promotion of respondents was not against vacancies reserved for promotion in terms of section 9 of the Act for which alone they were eligible for promotion their promotion would be regular from the date that a vacancy reserved under the rules for departmental promotion occurred. Their appeal before the Tribunal was also barred by limitation as against the rejection of their representation on 26-8-1981 they filed the appeal in March, 1982. These appeals are, therefore, accepted, the impugned order of the Service Tribunal is set aside and their service appeals before the Tribunal stand dismissed. No order as to costs.