' JUSTICE SHAH ABDUR RASHID (CHAIRMAN),-The appellant, M. Anwar Butt, was appointed as Assistant Director, Bureau of Emigration and Overseas Employment in B-17 w,e,f, 1st March, 1975 on ad hoc basis. His appointment received the approval of the Federal Public Service Commission on 1st October, 1975 and his formal order for appointment on regular basis was made on 8th August, 1975. By order, dated 4th October, 1976, the appellant was promoted as Deputy Director (B-18) in the same Bureau and he took over the charge of his new assignment on 7th October, 1976.
2. The appellant had earlier in Appeal No, 111 (R)/80 succeeded in getting declared senior to Mr. Sarwar Naseem, respondent No, 3 herein. He also succeeded in his claim for counting his seniority w,e,f, 1st October, 1975, the date on which he was approved by the Public Service Commission.
3. While Appeal No, 111 (R)/8O was pending, the President on 8th March, 1981 was pleased to pass an order under section 12-A of the Civil Servants Act (LXXI of 1973) directing that Mr. M. Anwar Butt, the appellant, shall count his seniority in the post of Deputy Director (B-18) from the date he completes five years' service in B-17. As a result a revised seniority list was issued and in that list, the appellant was shown to have been promoted as Deputy Director, w,e,f, 7th October, 1976, but at the same time, it was ordered that he would count his seniority in B-18, w,e,f, 1st March, 1980 when he completes five years of service in B-17 in the same department. As a result of this order, the seniority of the appellant was so disturbed that in B-18 he was shown junior to Mr. Sarwar Naseem, respondent No, 3, Taj Muhammad Baloch respondent No, 4, and M. Ibrahim Khan respondent No, 5 and others. He approached the President by way of an application for review, but without any success. He then came to the Tribunal under section 4 of the Service Tribunals Act (LXX of 1973).
4. The appellant's case was that he was senior to the three aforesaid respondents. The Government did not contest the appeal. A Bench of this Tribunal by order dated, 21st February, 1983 ordered that in the seniority list, the appellant shall be placed senior to respondents Nos, 3 to 5, and that the seniority list which had been prepared on 31st August, 1981 should be deemed to have been amended accordingly.
5. The order of the Tribunal, dated 21st February, 1983 was challenged by Mr. Ibrahim Khan, respondent No, 5 only in appeal before the Supreme Court. The learned Judges of the Supreme Court accepted the appeal and remanded it to the Tribunal for rehearing and decision afresh.
6. The learned counsel for respondent No, 5 has raised two preliminary objections : first that the Tribunal has no jurisdiction to hear an appeal against the order of the President made under section 12-A of the Civil Servants Act (LXX of 1973), and second that the present appeal by M. Anwar Butt is barred by time.
7. As regards the jurisdiction of the Tribunal, it has exclusive jurisdiction in matters relating to the terms and conditions of service of persons in the service of Pakistan. That jurisdiction can be taken- away or restricted only by law. Neither Article 212 of Constitution nor any provision of the Service Tribunals Act (LXX of 1973) places any restriction on the jurisdiction of the Tribunal to hear an appeal agains an order under section 12-A ibid. In fact, when section 12-A ibid was inserted in the Civil Servants Act (LXX of 1973), the President, at the same time, promulgated Corporation Employees (Special Powers) Ordinance (XIII of 1978), which provided that persons appointed or promoted in al Corporation service during the period mentioned in section 12-A of the Civil Servants Act (LXX of 1973) can be removed or reduced in rank by the President. At the same time, the employees of the Corporation were declared to be civil servants for the purpose of Service Tribunals Act (LXX of 1973). This shows the intention of the law-maker that the decision of the competent authority in taking action under the Corporation Employees (Special Powers)
Ordinance would be subject to appeal before the Tribunal. No special provision was necessary in the case of matters arising out of the decisions under section 12-A of the Civil Servants Act, as the Service Tribunals Act already existed and the Tribunal had the jurisdiction in respect of any new term or condition of service of any civil servant. The argument, on the face of it, has no substance. It may be mentioned that this point was never raised before the Supreme Court. It is too late for respondent No, 5 to challenge the jurisdiction. Apart from that the appellant's counsel has explained that he has not come in appeal from the order of the President passed under section 12- A but he only objects to the interpretation of the order put by the Government functionaries granting the appellant seniority with effect from 1st March, 1980.
8. Coming to the question of limitation, the learned counsel for respondent No, 5 argued that the appellant should have come in appeal to the Tribunal when order under section 12-A of the Civil Servants Act was passed, after exhausting the departmental remedy within 120 days of the order, but he has taken too much time and his appeal is thus time-barred. As already stated, the appellant has not challenged the order of the President made under section 12-A. He only objects to the interpretation given thereto. When seniority list of 1981 was prepared, the appellant represented against it on 7th September, 1981. A reply was sent to him on 17th November, 1981, wherein be was advised to make a review petition to the President. The appellant did so on 8th December, 1981, but never received the reply. In consequence, he filed the present appeal on 16th March, 1982, which is well within time.
9. Reverting to the main issue, it would be advantageous to state here the claim of M. Ibrahim Khan, respondent No, 5, who alone had approached the Supreme Court by way of appeal. In response to an advertisement of the Federal Public Service Commission published in 1975. For filling in the post of Deputy Director, respondent No, 5 also applied The Commission did not recommend his name.
They recommended the following persons :-
(1) Muhammad Afzal Bhutta. (Punjab)
(2) Iftikhar Ahmad. (Punjab)
(3) S. Mehr Badshah. (N.-W.F.P )
(4) Mehengraj M. Bhatia (Sind)
' Out of the aforesaid persons, Iftikhar Ahmad from Punjab did not join. The Government, therefore, requested the Public Service Commission for nominating another person in his place. The Commission made recommendation in respect of M. Ibrahim Khan, respondent No, 5, who joined as Deputy Director (B-18) on 31st July, 1976. On being requested in this behalf, the Public Service Commission indicated the merit position on the basis of 1975 selection, as under :-
(1) Muhammad Afzal Bhutta.
(2) M. Ibrahim Khan (respondent No, 5 herein).
(3) S. Mehr Badshah.
(4) Mehengraj M. Bhatia.
' The claim of M. Ibrahim Khan, respondent No, 5, is that although he actually took over in 1976, he is to be considered as nominee of 1975 and that he should be placed at Serial No, 2 in the seniority list.
10. As already stated, the learned counsel for the appellant did not challenge the order of the President under section 12-A of the Civil Servants Act (LXXI of 1973) whereby it had been directed that the appellant shall count his seniority from the date he completes five years of service in B-17.
It was. However, contended that the order of the President has not been correctly interpreted by the Government and that it has wrongly been stated in the seniority list of 1981 that the appellant would count his seniority from 1st March, 1980, as a result of the President's order. According to him, if his service in B-16 is counted as half and below that as 1/4th, he completes more than five years on 17th October, 1976 when he was promoted. In para. 7 of the appeal, he has explained his service record and computation to service which as under : {{TABLE}} Post held Period Service in Grade Year Month Service in Grade-17 Year Month Research Investi- 25-1.68 to 12-8-1969 gator (Grade-14). 1 7 0 5 Research Officer 13-8.69 to 24.7-1972 2 2 1 1 (Grade-16).
Assistant Director 13-12-69 to 14.9-1970 0 9 0 9 (Grade-17) (Full Addl. Charge).
Statistical Officer 25-7-72 to 28-2-1975 2 7 1 (Grade-16) Board of Revenue.
Assistant Director 1-3-75 to -6-10-1975 1 7 1 1 (Grade-17)
BE & OE. 8 8 5 1i {{TABLE}}
11. No doubt, under the rules which require five years' service for promotion to B-18, the service in B- 16 is counted as half and below that as 1/4th, nevertheless, the appellant's service as Research Investigator, Research Officer and Assistant Director (B-17) from 25th January, 1968 to 14th September, 1970 was not under the Government, but was under the Agricultural Development Corporation (a semi-Government organisation). There is no rule that service which is not under Provincial or the Federal Government can be counted towards reckoning the period of service for promotion. The appellant's service as the Statistical Officer w,e,f, 25th July, 1972 to 28th February, 1975 in the Provincial Government can, however, be counted. When converted to B-17, it works out to one year and 33- months. His service as Assistant Director from 1st March, 1975 to 6th October, 1976 is one year and seven months. In this way, the appellant's total service on the date of promotion was two years and 102 months. He would have completed five years on 21st November, 1978 after serving for 2 years, 1 month and 15 days more, as Assistant Director (B-17). His seniority, in these circumstances, has to be counted from 21st November, 1978 and not from 1st March, 1980, as shown in the seniority list of 31st August, 1981. This places him junior even to Sarwar Naseem, against whom he had successfully obtained an order from the Tribunal that he shall stand senior to him. That order would be binding on Sarwar Naseem, but it would have no effect on the other respondents, as they were not parties to the previous appeal. In this manner, the seniority list should show the following position : {{TABLE TEXT}} #TBS #TBE Date of Apptt.
Mr. Ziauddin Ahmad 27-1-1975 Mr. M. Ibrahim Khan 21-7-1976 Mr. S. M ehr Badshah 8-12-1975 Mr. Mehengraj M. Bhatia 17-12-1976 Mr. Rashid Ahmed Mughal 18-9-1976 Mr. Taj Muhammad Baloch 18-11.1976 Mr. M. Anwar Butt 7-10-1976 Mr. M. Sarwar Naseem 18-11-1978 Method of Apptt. By Promotion By direct recruitment. Do. do. By Promotion By transfer By promotion do.
12. In view of the above finding, it is not necessary to state other facts, but since, in the previous order, the Tribunal.Had held that the President was given wrong advice as a result of which the appellant's seniority was changed, we would explain the actual position as appearing in the relevant record. The appellant's case was revised by the Review Board and they recommended his reversion to B-17. However, the matter was examined in the Establishment Division and the Secretary of that Division, while submitting the case to the President, made recommendation that the appellant may not be reverted but his seniority in B-18 should count from the date he completes five years' qualifying service in B-17. As already stated, the service in B-16 is equal to half the service in B-17 and the service below 13-16 is equal to 1/4th of service in B-17. The only error which occurred in the subsequent order was that instead of explaining that 21st November, 1978 was the date when the appellant completed five years' service in B-17, it was wrongly shown in the order and the seniority list that he completed five years' service on 1st March, 1980.
13. The learned counsel for respondent No, 5 has also argued that the appellant could not rank senior to respondent No, 5 firstly because the latter was a Public Service Commission nominee of 1975 and secondly because the provision which gives priority to a promotee over the direct recruit of the same year is ultra vires the provisions of the Civil Servants Act (LXXI of 1973). Since the appeal is being dismissed on other grounds, we do not want to discuss this issue, as there is a difference of opinion in the Tribunal itself. A Bench of the Tribunal has held the said provision ultra vires while the other has upheld it .The question, will be examined in a larger Bench in some other case which may require the interpretation of the relevant rules and instructions. One of the cases decided by the Tribunal is before the Supreme Court in appeal and if the decision thereon is taken at an earlier date, then it would not be necessary for us to decide the issue in a larger Bench.
14. In view of the above facts, we dismiss this appeal and uphold the seniority list prepared in 1981 except to the extent that Mr. M. Anwar Butt, the appellant should be shown senior to Sarwar