SAAD SAOOD JAN, J.--These are five appeals by special leave which are directed against the orders of the Federal Service Tribunal. These are being disposed of together as a common question of law arises in them. The question is whether a civil servant who has been reinstated in service under Martial Law Order No. 23 is entitled to take seniority in the next higher Grade above the officers who were junior to him at the time of his reinstatement and were promoted to that grade while he was out of service. The Federal Service Tribunal answered the question in all the appeals in the affirmative. The Federation of Pakistan has challenged the correctness of the view taken by the learned Tribunal.
2. Civil Appeals No. 35 and 36 arise out of appeals filed by Junejo Muhammad Iqbal before the Federal Service Tribunal. On the basis of the C.S.S. Examination held in 1961 he was appointed as Income-tax Officer Class I (junior scale). On 6-11-1969 he was promoted to the senior scale. On 13- 3-1972 he was compulsorily retired from service under Martial Law Regulation No. 114. In 1977 when M.L.O. No. 23 came into force, he filed a review petition before a Board constituted under the Order.
On the recommendation of the Board he was reinstated in service on 7-6-1978 in Grade-18 which was equivalent to the former senior scale. On 1-3-1979 he was promoted to Grade-19. Prior to his reinstatement, a large number of officers who were junior to him at the time of his retirement were promoted to Grade-19 on different dates. After his reinstatement some of them were considered for promotion to Grade-20. He made a request that his case be also taken up for promotion to Grade-20. His request was turned down and he was informed that he was not senior enough to qualify for promotion to the next grade. He made a representation to the Board of Revenue but it was rejected. He then preferred two appeals: one was made to the President, through the Secretary in the Establishment Division and the other was filed before the Federal Service Tribunal. The Secretary in the Establishment Division rejected his appeal whereupon he preferred another appeal before the Tribunal seeking the same relief.
3. Civil Appeal No. 287 relates to Taj Muhammad Khan who joined service in the Pakistan Railways on 7-12-1954. He too was compulsorily retired on 13-3-1972 under M.L.R. No. 114 while he was holding a post in the senior scale. He was reinstated in service on 12-6-1978 when his review petition before the Board constituted under M.L.O. No. 23 bore fruit. He was promoted to Grade-19 on 30-9-1978. He claimed seniority in Grade-19 over officers who were junior to him in Grade-18 at the time of his compulsory retirement. His representation was rejected. He then preferred an appeal before the Federal Service Tribunal.
4. Civil Appeal No. 707 is in respect of M.R. Zia. He joined the Police Service of Pakistan in the junior scale on 22-12-1967. In due course he was promoted to senior scale. On 15-8-1975 he was compulsorily retired from service. He submitted a review application before a Board set-up under M.L.O. No. 23. It met with success and on 20-5-1978 he was reinstated in service in Grade-18. He was promoted as Deputy Inspector General of Police in Grade-19 on 19-11-1979. He made a representation to the Establishment Division claiming that he should be promoted to Grade-19 with effect from May, 1976 when his other batch mates were promoted and given seniority over those who were junior to him at the time of his reinstatement. His representation was rejected whereupon he preferred an appeal before the Federal Service Tribunal.
5. Civil Appeal No. 835 arises out of the appeal filed by Fareed-ud-Din Qaisar before the Federal Service Tribunal. He joined service as Assistant Income-tax Officer, Class II on 14-4-1964. He was compulsorily retired from service under M.L.R. No. 114 in March, 1972. He too took advantage of M.L.O.
No. 23 and filed a review petition which was accepted. He was reinstated in service on 4-7-1978 in Grade-16 which was equivalent to the scale in which he was placed at the time of his compulsory retirement. He was promoted to Grade-17 on 20-5-1979. Before his reinstatement a number of officials junior to him in Grade-l6 had been promoted to Grades-17 and 18. He also made a representation that he should be given seniority in Grade-16 in accordance with the place which he occupied before his compulsory retirement and that he be promoted to Grades-17 and 18 from the dates when officers junior to him were promoted. His representation for promotion from back dates and assignment of seniority in higher grade over those who had already been promoted before his reinstatement was rejected. He then lodged an appeal with the Federal Service Tribunal.
6. As already indicated the main question which fell for determination before the Federal Service Tribunal in all the appeals before it was whether a civil servant who had been reinstated in service under M.L.O. No.23 was entitled to take seniority in the next higher grade from the date when officers junior to him at the time of his retirement were promoted to that grade while he was out of service. The learned Federal Service Tribunal considered this question at length in the appeals preferred by Junejo Muhammad Iqbal and Fareed-ud-Din Qaisar and followed the view taken therein in the appeals filed by M.R.Zia and Taj Muhammad Khan. The learned Tribunal held that the very orders of reinstatement of the officers indicated that they had been earlier retired from service without any basis; consequently, the orders of their retirement were null and void. They were therefore entitled to be put in the same positions which they would have occupied had they not been retired from service. As they had not been considered for promotion when the officers junior to them were promoted and that too for no fault of theirs, they were entitled, on promotion after reinstatement, to take seniority above those who were junior to them and were promoted to the next grade. In adopting this view the learned Tribunal relied upon paragraph (B) of the Annexure, forming part of a memorandum issued by the Establishment Division on 31-12-1970, bearing the title General Principles of Seniority. It also took into consideration the provisions of section 8(4) of the Civil Servants Act, 1973 which stated that seniority in the grade to which a civil servant was appointed would take effect from the date of his regular appointmnet to a post in that grade and observed that there was no bar to the regular appointment being given effect from a back date.
Accordingly, it allowed all the appeals and directed that the reinstated officers be treated, on promotion, as senior to all those who were junior to them but were promoted to the next grade while the former were out of service.
7. For facility of reference Junejo Muhammad Iqbal, Taj Muhammad Khan, M.R.Zia and Fareed-ud- Din Qaisar will be collectively mentioned as the respondents in this judgment.
8.The officers who were affected by the order of the Federal Service Tribunal fall in two categories namely:- (i)those who were junior to the respondents but were promoted to the next grade while the respondents were out of service, and, (ii)those who were junior to the respondents but were promoted to the next grade prior to the promotion of the respondents but after their reinstatement. So far as the officers falling in category No. (ii) are concerned the Federal Government does not contest the order of the learned Tribunal.
In fact the Establishment Division has of its own issued instructions that the respondents be given seniority over the officers falling in this category. (See office memo. No. 35/13/78-A.I. Dated 26th November, 1978) . It may also be mentioned that in the appeals before us none of the officers falling in either category has appeared before us to challenge the correctness of the orders of the learned Tribunal.
9.The main statute laying down the terms and conditions of the civil servants of the Federation is the Civil Servants Act (No.LXXI of 1973). Section 8 of the Act deals with seniority. It reads as follows:- (1)For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade as the case may be.
(2)Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, as may be prescribed.
(3).Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
(4)Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who 'are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
As provided by subsection (2) the inter-se seniority of civil servants belonging to the same service, cadre or grade is to be governed in the manner which may be prescribed by the competent authority. Subsection (1) casts a duty upon the appointing authority to prepare a seniority list in respect of the members of the same service, cadre or grade but it also states that a civil servant will not have any vested right to a particular position in the seniority list. Subsection (3) relates to determination of seniority on initial reinstatement and sub-section (4) which is relevant to these appeals deals with the inter-se seniority of officers on promotion. It sets down the basic principle in this regard: the principle is that the seniority in the grade to which a civil servant is promoted shall take effect from the date of his regular appointment to a post in that grade. This principle is subject to a qualification mentioned in the proviso to subsection (4). This qualification is to the effect that civil servants selected for promotion to a higher grade in one batch would, on promotion to the higher grade, retain their inter se seniority of the lower grade.
10. It is common ground between the parties that on reinstatement the respondents were, in the seniority lists relative to them, assigned the same positions which they had occupied in the grade to which they belonged at the time of their retirement. On this score they have no complaint. What they seek is that on promotion to the next grade they should be given seniority over those who were junior to them at the time of the retirement but were promoted while they were out of service.
Now, as laid down in section 8 ibid., seniority is not a vested right and seniority in the higher grade is to take effect from the date of regular appointment to a post in that grade. Since the officers who were junior to them at the time of their retirements were promoted on regular basis on dates which. Are anterior in point of time to the dates of regular promotions of the respondents the latter cannot claim seniority over the former. Subsection (4), ibid, would be a bar against such a claim.
The argument that since they were retired from service without any fault on their part and without any reason they should be deemed to have been promoted from the dates when officers junior to them or belonging to their batch were actually promoted, is attractive but it comes in conflict with the basic principle laid down in section 8. It was of course open to the Government to promote the respondents from back dates but it has elected not to do so. It was a policy decision on the part of the Government as it affected a large number of civil servants similarly placed as the respondents.
It cannot be over-ridden by creating a legal fiction as the learned Tribunal seems to have done by declaring that the respondents should be deemed to have been promoted from the dates when officers junior to them or belonging to their batch were actually promoted or when they became eligible for promotion.
11. An attempt was made on behalf of the respondents to bring their case under the proviso to section 8(4) reproduced above, but then this proviso is in terms inapplicable to them as they were not selected for promotion in one batch along with the officers junior to them. The respondents also relied upon Annexure-I of the Office' Memorandum No. 1/16/69-D-II dated 31st December, 1970 issued by the Establishment Division. This annexure prescribes the general principles of seniority.
Paragraph B of the Annexure deals with departmental promotions. It reads as follows:-- "MOfficers who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that:-- (a)an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch; (b)when in a single reference, the Selection Board/D.P.C. Are asked to recommend more than one person and the recommendation of the Selection Board/D.P.C. Is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board/D.P. C. In respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made; Learned counsel for the respondents pointed out that the Government had since regularized the period intervening between their retirement and reinstatement and as such they were to be treated on the footing as if they had never been out of service. Thus, it was argued, for purposes of Paragraph B, ibid, they must be regarded as still in service on the day when officers junior to them were promoted to the higher grade. Since at that time they were not considered for promotion their cases fell under clause (i)(a), ibid.; consequently, they were entitled to regain their original seniority when, after reinstatement, they too were promoted to the next higher grade. It is difficult to accept this contention unless the word "inadvertently" occurring in this clause is given a laboured interpretation. The non-promotion of the respondents was not on account of any inadvertent omission on the part of the Government but was due to the fact that they were not in service actually on the day when promotions of officers junior to them or belonging to their batches took place.
12. It is also doubtful if the general principles of seniority as contained in the annexure are applicable to the respondents. Civil Servants who were reinstated in service consequent upon the promulgation of M.L.O. No. 23 formed a class by themselves and in respect of those falling in this class, the Government has issued special instructions which include the manner in which their seniority on reinstatement is to be determined. See Office Memorandum of the Establishment Division, bearing No. 3/3/78-R.I1, dated 5th July, 1978. 1,hese instructions being of special nature particularly intended for the class of officers to which the respondents belong, must over-ride the general principles of seniority as contained in the Annexure. Paragraphs (d) and (e) of the memorandum are relevant in this regard. They read as follows:-- "(d)The reinstated persons may be allowed normal seniority in the grade in which they were serving at the time of retirement. In other words, they would be placed in the same position in that grade, which they would have enjoyed had there been no retirement.
(e)The persons reinstated in service may be considered for promotion on the basis of their seniority in the grade held by them in accordance with the normal rules. On promotion to higher grade, they may be allowed pay and seniority from the date of thOr regular appointment to posts in the higher grade. There will be no automatic promotion on the principle of 'next below' rule."
It was half-heartedly contended on behalf of the respondents that this office memorandum had no legal sanction as it was issued by the ,Establishment Division without reference to the President.
To meet this objection, the learned Deputy Attorney-General who appeared on behalf of the Federation, produced the original file in Court. A perusal of this file clearly shows that the office memorandum was issued with the approval of the President/Chief Martial Law Administrator. It was then contended that clauses (d) and (e) of the memorandum, reproduced above, were self- contradictory and as such unenforceable. In support of this contention reference was made to the judgment of the Punjab Service Tribunal in the case of Syed Kabir Hussain Shah v. Secretary to Government of the Punjab 1983 PLC (C.S.) 1231. While discussing these two clauses the learned Tribunal observed:-- "A cursory reading of these lines would show that only clause which it has introduced is that the seniority of persons although will be in accordance with normal rules but the same would take effect from the date of regular promotion in the higher grade. This to our mind is blowing hot and cold in the same breath. It is absolutely clear from the earlier quotation of this para. E that a person once reinstated will be shown senior according to normal rules or seniority so laid down by the Governor of the Province to his juniors although the said juniors had gone ahead due to his retirement under M.L.R.
114. While accepting this principle, it would be self--contradictory to say that he should be deprived of thst basic seniority when he is entered to higher grade although latter due to the reasons beyond his control. If we accept the second part as stated above this will lead to anomaly as well as denial of the application of normal rules."
With due respect it is difficult to subscribe to the view of the learned Tribunal. Consequent upon the reinstatement of a large number of officers who had remained out of service for a number of years the Government was faced with a number of difficult questions. One of these was how to rehabilitate them in their erstwhile services, cadres or grades. It resolved this question by directing that they should be placed in the same position in their erstwhile grades which they would have enjoyed had there been no retirement. This decision of the Government is reflected in clause (d) of the memorandum. During the period the reinstated officers were out of service a number of promotions had been made. The officers promoted included those who were junior to the reinstated officers. Thus another question which the Government had to answer was how the reinstated officers should be placed with reference to those who were junior to them but were promoted in their absence. On this question the Government resolved that on promotion to higher grades these officers should be allowed seniority from the date of their regular appointment to a post in the higher grade and that the benefits of the convention known as the 'next below rule' should not be given to them. Clause (e) of the memorandum incorporates the decision of the Government in this regard. Whether this decision was fair or not is a matter upon which we can hardly offer any comments. It was a policy decision and we have no doubt that in formulating its policy the Government must have taken into considerations all the relevant facts including the interests of those civil servants who remained in active service throughout the relevant period. As clauses (d) and (e) deal with different question -we do not think that the Government can be accused of blowing 'hot and cold' at the same time.
13. As already indicated the question of seniority of the respondents has to be decided in the light of the office memorandum of 5-7-1978 and not in accordance with the general principles of seniority as contained in the office memorandum of 31-12-1970. Clause (e) clearly states that on promotion to the higher grade the reinstated civil servants will. Take seniority from the date of their regular appointment to a post in' that grade. That being the position the claim of the respondents that on promotion they were entitled to regain seniority in the next higher grade over those who were junior to them in the lower grade at the time of their retirement must be rejected. The reliance of the respondents on the cases of Syed Kabir Hussain Shah v. Secretary to Government of the Punjab 1983 PLC (C.S.) 1231 and Manzoor Masud Tamanna v. Secretary to Government of the Punjab 1985 PLC (C.S.) 958 is misplaced as both these related to the' employees of the Provincial Government and the Punjab Service Tribunal found that the Office Memorandum of 5-7-1978 was not applicable to them for the reason that the Provincial Government had not amended its rules in accordance with the instructions contained therein.
14. Both the Federation of Pakistan as well as the respondents referred to the proviso to paragraph 5 of M.L.O. No. 23 in support of their respective contentions. Paragraph 5 reads as follows:-- "A Review Board, on receipt of a review petition forwarded to it by the competent authority, shall review the said petition and, after giving an opportunity to the petitioner of being heard, and making such further enquiry as it may deem appropriate, submit its report together with its recommendations to the competent authority who may pass such order as he may deem appropriate: Provided that any order passed on a petition, including an order of reinstatement, shall not entitle the petitioner to any damages, compensation or arrears of emoluments or other benefits for the period he remained out of service."
It was contended on behalf of the Federation that by expressly providing that a reinstated civil servant would not be entitled to any benefit for the period he remained out of service the proviso barred the claim of the respondents to higher seniority on promotion to the next grade. On the other hand, the learned counsel appearing for the respondents maintained that the words "other benefits" as occurring in the proviso, by application of the rule of esjudem generis, referred only to advantages of monetary nature and not to a claim with regard to seniority, and, that as the proviso expressly debarred claims of monetary nature it must be presumed by implication to have protected the claim to seniority of the reinstated civil servants. On a fair, reading of the proviso it does appear that the words "other benefits" relate to advantages of a monetary nature only. To this extent the interpretation placed by the learned counsel for the respondents on these words seems to be correct. But then it is difficult to support the further contention of the respondents that by making an express provision with regard to monetary advantages the proviso, by implication, entitled the reinstated civil servants as of right, to demand all other benefits including those of seniority. Had this been the intention of the M. L. O. No. 23 it would have made a specific provision to this effect. In the absence of any indication to the contrary in the M.L.O. It is difficult to construe the proviso as detracting from the statutory power of the competent authority to determine the manner in which seniority of the reinstated officer was to be fixed. We should therefore think that the proviso is of no assistance in resolving the controversy before us.
15. For the reasons stated above the orders of the Tribunal are liable to be set-aside and these appeals accepted.
16. We may, however, observe that in the meanwhile the impugned orders of the Service Tribunal have been implemented and none of the affected respondents-officers has personally filed any appeal to challenge the said orders. The learned Deputy Attorney-General also submitted before us that the Government was only interested in getting the law clarified. In these circumstances the acceptance of the appeals would not necessitate the reversion of the contesting respondents.
These appeals are disposed of in these terms. As the question raised in the appeals was not free from difficulty there will be no order as to costs.