M.S.H. QURAISHI, J.--The appellants in these appeals by leave of the Court, were working as Section Officers under the Ministry of Foreign Affairs. They had qualified in the first or the second Promotional Examination held for absorption in the cadre of Central Secretariat Service Class I and though it is not shown that they had been regularly appointed to that cadre, the end of 1976 had promoted most of them to Grade 18. The contesting respondents (Nos.3 to 6) are direct recruits of 1971 in the Foreign Affairs Group (F. A . G .) and though on completion of five' years of service they had become eligible for promotion on 31-10-1976, their promotion was delayed. In the meantime, by Notifications dated 4-1-1977 and 19-4-1977, the appellants alongwith others were "permanently inducted" Into the F A.G. Constituted by O. M. No' 3/2/74-ARC, dated 8-4-1974. The respondents received their promotion in Grade 18 on 4-9-1977 but by that the all the appellants had already been promoted to that Grade and were placed higher in seniority than the respondents. On 9-8- 1979 the respondents filed an application for review of seniority in which they represented against the induction of the appellants into the F.A.G. Which they called "irregular", against the promotion of the appellants, the delay in according their own promotion and against the lower seniority assigned to them. On getting no response, they filed a further representation on 16-4-1980 seeking review of the seniority and for fixing their seniority from November, 1976 when they had become eligible for promotion. Again, they received no response and in the meantime, by order dated 15-1- 1981, the appellants were promoted to the rank of First Secretary/ Director with effect from 7-1-1981.
The respondents, thereupon, filed separate appeals before the Tribunal on 12-2-1981, seeking that they be conferred seniority in Grade 18 of the F . A . G . With effect from 31-10-1976 that the induction of the appellants be either declared null and void or in the alternative the appellants be allowed seniority in Grade 17 which could be allowed in their parent cadre and be given seniority in Grade 18 on completion of five years service in grade 17 on regular basis subject to availability of vacant seats and that the order of promotion of the appellants as First Secretary/ Director be reviewed and the respondents be considered for promotion to those posts on the basis of their re-adjusted seniority in Grade 18.
2. The appeals were contested by the appellants before the Tribunal as being incompetent and also barred by the for the reasons (1) that the order of induction passed in 1977. Had not been challenged until 9-8-1979, (2) that there being no provision for a second representation, the one made on 16-4-1980 was not competent and (3) that in regard to the order of promotion of the appellants, dated 15-1-1981, the respondents had not complied with the provision of section 4 (1)(a) of the Service Tribunals Act. On behalf of the respondents it was, however, urged that the promotion 'of the appellants made on 15-I-1981 in preference to the respondents in spite of their representation was a "final order" in terms of section 4 of the said Act, for which they relied upon Iqan Ahmed Khurrum v. Government of Pakistan PLD 1979 Kar.. 610 and that as such the appeals were in the. The Tribunal agreed with this submission and although it held that the second representation dated 16-4-1980 was an exercise in futility as the rule% did not provide for such representation, it held that the appeals, having been filed' within thirty days of the promotion order dated 15-1-1981, were both competent and in the.
3. The Tribunal, then, after a detailed examination of the case of the appellants individually, found that they except Yunus Gangi and Miss Rehana Ahmad should have their seniority fixed in Grade 17 with effect from 27-1-1975 under clause 4(v) of O.M. No.1/2/75-ARC dated 27-1-1975, that appellant Miss Rehana Ahmad, if ad hoe, should be treated in like manner and that appellant Yunus Gangi being an ad hoc ex-cadre appointee having never been regularised, could not claim seniority at all. The Tribunal, also relying on para. 11 of O.M. Dated 8-4-1974, relating to constitution of the F.A.G., section 8(4) of the' Civil Servants Act and rule 9 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, held that the induction of the appellants was "null and void and of no legal effect" and that "they shall be deemed never to have been inducted into the F.A.G.". The Tribunal therefore, accepted the respondents' appeals and directed that they be given the benefit of Para. B(a) of the General Principles of Seniority (Esta code 1983 Edition, Page 153) and considered again by the DPC and if found fit as on 31-10-1976, be promoted from that date and further that the seniority list of Grade 18 officers be re-drawn within three months of the receipt of the Tribunal's order.
4. Leave was granted to consider the contentions that--
(1) the appeal before the Tribunal was manifestly the-barred as the induction of the appellants which had taken place in 1977, had not been challenged before the Department until 9-8-1979 and before the Tribunal until 12-2-1981;
(2) the representation having been addressed to the Foreign Secretary while the approval to the promotion of the appellants having been ordered by the President, such approval by the President could not be deemed to be rejection of the representation by another authority;
(3) the induction of the appellants into the F.A.G. Was on the basis of Notification No.11/ 1 /73-C .III
(A) (1) dated 20-8-1973 , which was in the field when their eligibility for such induction was created by the policy decision dated 8-4-1974 and there was no inherent infirmity in their induction into the F. A . G . ; and
(4) that as regards the respondent's claim to promotion, the rule of eligibility for promotion could not on any interpretation be converted by the Tribunal into one of right to be promoted from the date of eligibility.
5. The Section Officers Scheme had been introduced on 1-10-1959. Later, the Central Secretariat Service Class I was constituted under the rules framed in 1965. The Service constituted of (a) persons appointed under rule 5, and (b) persons subsequently appointed by direct recruitment or by promotion in accordance with the said rules. For future recruitment 80% of the vacancies were to be filled by direct recruitment and 20% by promotion. The future recruitment by promotion was, under rule 11, to be made on the basis of written competitive examination and interview to be held by the Central Public Service Commission. Promotional examinations were accordingly held in 1967 and 1969 and although a large number of persons qualified but only some of them could be absorbed in order of merit, according to the availability of vacancies. Those who could not be absorbed continued to remain ad hoc Section Officers. Some other Section Officers who had appeared but failed to qualify at the promotional examinations were cleared by revising the standard in consultation with the Commission. On the establishment of the Office Management Group by O.M. Dated 27-1-1975, the following were, under para.4 thereof, included in the Office Management Group on its initial constitution: "(i) Section Officers who already stood encadred in the former C.S.S. Cadre through notifications issued from the to the.
(ii) Section Officers who were eligible to be encadred but notifications could not be issued before the abolition of the C.S.S. Cadre.
(i.e) Section Officers directly recruited by F.P.S.C. Till the end of 1974.
(iv) Ad hoc Section Officers who qualified in the promotional examinations of 1967 and 1969 but who could not be adjusted on regular basis due to non-availability of posts in the departmental quota.
(v) Ad hoc Section Officers who appeared in the promotional examinations of 1967 and 1969 and were cleared by revising the standard in consultation with the F.P.S.C."
Ad hoc Section Officers who could not be included in the Office Management Group under clauses
(iv) and (v) above were, under para. 6, liable to be replaced by the Commission Qualified Section Officers and such of them as were not replaced were required to take Section Officers (Qualifying)
Examination to be conducted by the Commission, for which purpose they were allowed not more than to chances. On the constitution of the F.A.G., only such of the former C.S.S. Class I Officers who were working in the Foreign Ministry and were found suitable were, under para. 11 of the relevant O.M. Dated 8-4-1974,- to be permanently inducted into that Group. Under para. 13 of the said O.M.
"A Unified Gradation List of Officers of the Foreign Affairs Group will be prepared by the Ministry of Foreign Affairs, taking into account the above decision and in accordance with the principles already adopted for other groups viz. The seniority in each grade will be determined from the date of appointment to that grade". A committee was, however, to be set up under this paragraph to remove anomalies and to resolve any major difficulty that might arise as a result of the application of these instructions in regard to seniority.
6. The appellants do not claim absorption under one of the categories in para. 4 of the said O.M.
Dated 27-1-1975 but their case is that they had been regularly appointed as Section Officers by notification-dated 20-8-1973. By this notification a number of officers had been appointed to C . S .
S . Class I with effect from the dates specified in the notification in pursuance of rules 5 and 6 of C.S.S. Class 1 Rules, 1965. The notification, however, does not show that the pre-requisites of the said rules 5 and 6 had been met. It is also to be noted that this notification dated 20-8-1973 had not been placed before the Tribunal. In any case, the notification having been "cancelled and in to" by the subsequent notification No.8/1/74-C.III(A) dated 24-12-1975, it could not form basis of the appellant's claim. According to the finding of the Tribunal, the appellants, except Yunus Gangi and Miss Rehana Ahmad, had qualified at the promotional examinations and as such were deemed included in the Office Management Group under para. 4 (iv) of O.M. Dated 27-1-1975 with effect from that date. Appellant Yunus Gangi who had taken the 1969 promotional examination but failed to qualify and appellant Miss Rehana Ahmad who had not taken the examination, were thus not entitled to the benefit under the said para.4 (iv).
7. In this background a question does arise whether the appellants are qualified for induction into the F.A.G. On the basis of para. 11 of O.M. Dated 8-4-1974. This para reads: "11. Secretariat Officers working in Foreign Office--There are at present a large number of Grade 17 and Grade 18 officers belonging to the former Central Secretariat Service who are working in the Foreign Ministry and in Missions abroad. Some of them who are suitable would be permanently inducted into the Foreign Affairs Group and the rest would be withdrawn in a phased programme."
The pre-conditions for such induction, as can be seen, are (1) that the officers belonged to the former C.S.S. And (2) that they were held suitable for permanent induction into the F.A.G. The first notification of induction dated 4-1-1977 sets out as the reason for the induction as follows: "Para .11 of the Establishment Division's O.M. No.3/2/74-ARC, dated the 8th April, 1974, on the above subject, provides that some of Grade 17 and Grade 18 Officers belonging to the former Central Secretariat Service working in the Ministry of Foreign Affairs, who are suitable, would be permanently inducted into the Foreign Affairs Group. Accordingly it has been decided to induct officers of the former C.S.S., named below, in the Foreign Affairs Group."
The notification apparently assumed that the officers inducted were possessed of the pre- conditions of para.11, namely, that they belonged to the former C.S.S. From before 8-4-1974 and' that they had been found suitable. The notification dated 20-8-1973, on which alone reliance was placed by the appellants as the basis of their absorption into C.S.S. Class I, having been cancelled ab initio, the availability of the assumption is open to serious doubt. This is what the Tribunal emphasised and in fact it went ahead to declare that the induction of the appellants in was null and void. The learned Deputy Attorney-General also agreed that the induction was not in accordance with the rules and he supported the Tribi1nal's decision in this regard. However, the Tribunal could make the declaration if the appeals before it were competent which, as will be presently seen, they were not. This, therefore, remains a matter where the corrective must be applied by the Government itself in order to bring their decisions in conformity with their own rules laid down from the to the.
8. The basic grievance of the respondents was against the notifications of induction issued on 4-1- 1977 and 19-4-1977 but they did not challenge the same until 9-8-1979. Since under section 2-2 of the Civil Servants Act their representation had to be made within thirty days of the notifications, their representation, when made, was thus hopelessly beyond the. As regards the second representation made on 16-4-1980, the same was, like the first representation, not only ineffective against the induction notifications but also not maintainable in the absence of any enabling provision for a second representation. The order of promotion of the appellants could also not be treated to be "final order" of the departmental authority for the purposes of limitation within the meaning of subsection (1) of section 4' of the Service Tribunals Act, the reasons being that the authority from whom the order of promotion had emanated was not the same to whom the respondents' representation had been made. According to rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the authority competent to make appointment in Grade 17 and above was the Prime Minister whereas the representation had been made to the Secretary of the Ministry. The respondents thus not having challenged the induction notifications before the departmental authority in the could not challenge the same before the Tribunal and as such their appeal was the-barred as also incompetent.
9. The seniority list itself, which had also been subject-matter of challenge in the respondents' appeal before the Tribunal and a copy of which has been supplied at page 54 of the paper book, had according to the Deputy Attorney-General, never been circulated. The list shows that it was "provisional". Such list, therefore, in accordance with para.3 of the instructions (O.M.No.1/9/74-ARC dated 12-9-1974, at page 149 of the Esta code, 1983 Edition), ought to have been circulated to the officers concerned and their objections and representations invited and after necessary correction, in the light of the objections and' representation so received, a final list ought to have issued. This, for some unexplained reason, was not done and what is surprising is that the list, according to the learned Deputy Attorney-General, had been acted upon all these years. Such state of affairs was bound to create dissatisfaction among the officers and the Government should in the very interest of smooth administration take immediate steps to circulate the seniority list, invite objections and representations as envisaged in the aforesaid para.3 of OM. Dated 12-9-1974 and prepare and publish final list, where after the respondents, if aggrieved, could have a proper cause to agitate the matter. As, at present, they cannot be said to be aggrieved by a seniority list which has not yet been circulated. The respondents' appeal before the Tribunal was thus incompetent as against the seniority list to. The Tribunal had also erred in directing that the respondents be promoted from the date of their eligibility i.e., 31-10-1976 "if found fit on that date". Eligibility is not the only criterion for promotion. Other administrative considerations, even apart from suitability, such as availability of vacancies, have also to be kept in view, for which there was no data before the Tribunal.
10. In view of the above discussions and the observations made, the appeals are accepted and the impugned order of the Tribunal set aside. There shall be no order as to costs.