' JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-- The appellant was selected in the Central Superior Services Examination held by the Federal Public Service Commission in 1975. He was put on in service training on 21-3-1977 in N.P.S. 17, and allocated to the Office Management Group in February, 1978. In the seniority list of Section Officers (N.P.S. 17), he was shown at S.No, 208. In this appeal, he claimed seniority over the persons named at S.No, 10 to 67 and S.No, 105 to 200 in the 1981-seniority list of grade 17 Section Officers and also over S.No, 328 to 337 and 363 to 372 and 380 to 403 of sublist of grade 18 Section Officers. At the time of arguments, however, the appellant confined his claim for seniority over respondents 10 to 67 and 105 to 200 Section Officers of Grade 17 only, referred to above.
2. The Office Management Group was constituted under office Memorandum No, 1/2/75-ARC, dated the 27th January, 1975 (hereinafter referred to as the aforesaid memo., before the appellant joined service. The initial formation of the Group was made under para. 4 of the aforesaid memo.
That listed five categories of persons who were to be inducted in that Group on regular basis. These categories are:--
(i) Section Officers who already stood encadred in the former C.S.S. Cadre through notifications issued from time to time.
(ii) Section Officers who were eligible to be encadred, but notifications could not be issued before the abolition of the C.S.S. Cadre.
(iii) 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."
3. Para. 6 of the aforesaid memo. Envisages absorption of still another category of ad hoc Section Officers. This para. Reads as follows:-- "Ad hoc Section Officers other than those mentioned at clauses (iv) and (v) of para. 4 above, are liable to be replaced by F.P.S.C. Section Officers. Such of them as are not replaced will be required to take Section Officer (Qualifying) Examination to be conducted by the F.P.S.C, Not more than two chances to clear the examination will be given after taking into account the marks obtained by them in the qualifying Examination, service record and the vacancies available at the time. Such of them as are cleared finally will be placed on regular footing. Those who do not clear it will be reverted."
4. The persons at S.No, 10 to 67 and 105 to 200 of the seniority list are either those ad hoc Section Officers who come under para. 6 of the aforesaid memo. As they passed the Qualifying Examination after 27-1-1975 and were brought on regular footing or persons promoted from Ministerial services and appointed as Section Officers in the Office Management Group in grade 17 in November-December, 1977.
5. The appellant contended that those persons who were serving as Section Officers on ad hoc basis prior to the formation of Office Management Group were governed by the Central Secretariat Service (Class I) Rules, 1965, and, as such, under rule 6, they could not hold more than 20 per cent of the vacancies of Section Officers, the remaining 80 per cent being reserved for direct recruits.
The appellant's case is that had he been considered for 80 per cent quota, he would have ranked senior to the persons of that category. In our opinion, Rules of 1965 have no relevance whatsoever for the purpose of determining the seniority of the appellant, inasmuch as, the Office Management Group Management Group was formed by a specific order, dated 27-1-1975 contained in the aforesaid memo. And the method of initial formation was given therein. The persons who were ad hoc Section Officers prior to the formation of Office Management Group, were to be encadred in the Group on its initial formation, as provided for in para. 4 and para. 6 of the aforesaid memo.
Para. 4 relates to those ad hoc Section Officers who had already cleared the Promotional examination, while para. 6 relates to those who had not by that time cleared such examination.
They were allowed two chances to clear the examination and it was provided that if they succeeded, they shall be placed on regular footing in the Group. In these circumstances, the question of application of quota to direct and promoted officers on the initial formation of the Group does not arise.
6. The rule for fixation of seniority of the persons who had been inducted in the Office Management Group on the basis of the aforesaid memo. Is contained in para. 12 thereof. At the time when the appellant joined the service, that para. Read as follows: "12. Seniority:
(a) Separate Division wise seniority lists would be maintained for all posts in Grade I to 16 as hitherto on the basis of continuous regular officiation in the grade.
(b) Section Officers in Grade 17 and 18:
(i) There shall be one combined seniority list of Section Officers in Grade 17 and 18 irrespective of the Ministry or Division or Office where they may for the time being be serving. The seniority of the promoted Section Officers appointed on regular basis in various phases upto and including Promotional Examination held in 1969 and of the Section Officers appointed by direct recruitment upto and including XIVth batch, has already been determined and notified, vide Establishment Division's O.M. No, 8/1/74- C.III(A), dated the 26th December, 1975.
(ii) Ad hoc Section Officers appointed prior to 27th January, 1975.--Those who qualify in the F.P.S.C.
Examination whether in the first or in the second attempt, shall be placed in seniority immediately below the directly recruited Section Officers of the XlVth batch. Their inter se seniority shall be determined according to their position in the lower grade; for example, those who were promoted Section Officers from Grade-16 shall be senior to those who were promoted from Grade-15, and so on.
(iii) Section Officers to be appointed in future on regular basis whether by promotion or by direct recruitment.-- The promotee officers of a particular year shall, as a class, be senior to the direct recruits of that year. There inter se seniority, however, shall be determined in the case of direct recruits according to the order of merit assigned to them on completion of their training at the Academy for Administrative Training and, in the case of promoted officers, according to their order of merit as determined in the Promotional Examination."
' The promotee officers against whom the appellant has claimed seniority are covered by sub- clauses (ii) and (iii) of clause (b) of the said para. Applying this rule, the appellant has to rank junior to the promoted officers. The persons who are promoted from Ministerial service joined as Section Officers in NPS 17 in November-December, 1977. The appellant joined on 21-3-1977. As such, the appellant and those promotes were appointed in N.P.S.17 in the same year. The aforesaid memo. As it existed at the relevant time, provides that the promotee officers of a particular year shall, as a class, be senior to the directly recruited officers of that year. Applying this principle, the appellant could not be placed senior to the persons who were promoted in 1977--the year in which the appellant was also appointed.
7. The appellant, however, contends that in the first instance, he having cleared the F.P.S.C.
Competitive Examination in 1975, should have been treated as having been appointed in that year, and secondly that the promotee respondents had been appointed in excess of the quota reserved for them.
8. As regards the first contention of the appellant, the year of clearing the examination is not relevant. It is the commencement of service from which the appellant can count his seniority. He having been appointed in 1977 for in-service training cannot claim seniority from any date earlier than 1977. The promotees of 1977 also joined service in N.P.S. 17 in the same year on promotion, They shall, therefore, as a class, rank senior to the appellant, as provided for in para. 12 of the aforesaid memo.
9. The appellant's stand that these persons were in excess of their quota also does not appear to be correct. The departmental representative and the learned counsel for State have explained to our satisfaction from the record that after the initial formation of the Office Management Group, under paras. 4 and 6 of the aforesaid memo. There were 344 vacancies left-over for being filled. In accordance with para. 7 of the aforesaid memo. 2/3rd vacancies were to be given to the direct recruits, while 1/3rd to the promotees. Applying this provision, the department promoted 114 persons from the Ministerial services and appointed 52 persons including the appellant by direct recruitment. Since there were 114 vacancies available for the promotee officers, the appointments were made accordingly. Only 52 direct recruits were available in that year and they too were encadred accordingly. The appellant has not been able to show that the promotions were made in excess of the quota, while filling the left-over 344 vacancies. No doubt, the direct recruits were not appointed for 2/3rd vacancies, nevertheless, as explained by the learned counsel for State, all the remaining vacancies are to be filled on regular basis by direct recruitment unless the law is changed. It was also urged by the appellant that in para. 6 of the aforesaid memo. The words "vacancies available at that time" excludes the chances of promotion in excess of 1/3rd of the number of persons recruited in a year. We do not think, such an interpretation can be placed on the language of para.
6. The abovementioned words refer to total vacancies and not the vacancies of either class of a particular year.
10. The appellant also contended that the provisions made in the aforesaid memo. That the promotee officers, as a class, shall stand senior to the direct recruits is not consistent with section 8 of the Civil Servants Act (LXXI of 1973), and, as such, has to be ignored. In this respect, he relied on the decision of a Divisional Bench of this Tribunal made in Appeal No, 40 (R) of 1981, Fazal-i-Qadir v.
Secretary, Establishment Division and 251 others. Since there was a difference of opinion in the Tribunal on the specific issue, the present case was heard by the Full Bench. The law on the point is now settled in the case of Federation of Pakistan v. Azam All and others 1985 SC M It 386, wherein the Supreme Court has held that the General Principles of Seniority which provide for placing the promotee officers of a year over the direct recruits of that year is not inconsistent with the provisions of section 8 (4) of the Civil Servants Act (LXXI of 1973). It is pertinent to note that the Supreme Court, while granting leave to appeal in the case of Fazal-i-Qadir, had suspended the operation of the Tribunal's order.
11. The appellant also contended that ten persons belonging to the Armed Forces were directly inducted in Grade 18, thus further relegating the seniority of the appellant. It was urged that the direct induction in Grade 18 is not envisaged by the aforesaid memo. And, therefore, those persons cannot be placed senior in the seniority list. Without going into the merits of this assertion, we are of the view that the appellant cannot challenge their induction in Grade 18 before us, as no departmental representation was made when the induction of these officers and their regularisation was ordered.
12. Apart from the merits of the case, the appeal is liable to dismissal, as it was not filed within the period of limitation provided for in this respect. The appellant made first representation against the seniority list on 19-7-1982, which was rejected on 17-10-1982. Against the rejection order, appeal to the President was preferred on 14-11-1982, but that remained undecided. According to law applicable in this case, the appellant should have come to the Tribunal within 120 days from 14-11- 1982. The last date for filing the appeal before the Tribunal was thus 14-3-1983. The present appeal having been filed on 9-4-1983 is out of time and there being no valid reasons for condonation of delay, the delay cannot be condoned.
13. In view of the above legal and factual position, we find no substance in this appeal and dismiss the same accordingly. Parties to bear their own costs, and be informed accordingly.