1. SHAFIUR RAHMAN, J.-This judgment disposes ,of three appeals filed under Article 212 (3) of the Constitution, one by the. Federal Government, two others by its employees. In all of them, though not directly, the soundness of the decision of the Service Tribunal in yet another matter (Service Tribunal Appeal No. 123 (L)/80-Abdul Wahid v. Secretary Ministry of Finance) pronounced on 5-1- 1982 is being questioned.
2. Abdul Wahid, not a party to these appeals, filed an appeal (123 (L)/80) before the Service Tribunal stating that by orders dated 27-3-1951, 8-10-1952, 24-2-1953 and 8-4-1954 Auditor-General of Pakistan created a separate cadre of selection Grade Upper Division Clerks later designated as Audit Assistants. He was promoted in this cadre earlier to his two colleagues Haji Muhammad Khan respondent No. 4 and Mr. M. Afzal Mian, respondent No. 5 and was shown in all the seniority lists senior to them till 18-2-1980 when the Auditor-General issued instructions whereby "with one stroke of the pen illegally revised the above said existing seniority lists and issued a new one as on 14-8- 1973 with retrospective effect to the great disadvantage of the appellant without calling any objections and giving any notice required by law to be given to the adversely. Affected persons, placing the appellant at serial No. 36 below the respondents Nos. 4 to 5 who have now been allotted serial Nos. 30 and 29 respectively (Annexure `C') over and above the appellant".
3. Another similar appeal (Service Tribunal Appeal No. 69/L of 1980) was filed by Lai Hussain Akhtar.
4. He also claimed that Upper Division Clerks (later known as Auditors) and Selection Grade Upper Division Clerks (later known as Account/Audit Assistants) were in different cadres and the Auditor General by his impugned order dated 18-2-1980 by combining the two and making their seniority as Auditor prevail has disturbed their vested seniority.
5. A third such appeal (Service Tribunal Appeal No. 70-L of 1980) was filed by Abdul Hamid Saqfi in which the two appellants before us Muhammad Umar Malik and Muhammad Yakub Rai (Civil Appeal 82 of 1982) were, among others the respondents. The claim was the same as in other appeals.
6. Apart from these three appeals taken note of there were a few others before the Service Tribunal raising the same questions and challenging the same circular of the Auditor-General.
7. The impugned order of the Auditor-General dated 17-2-1980 is in the form of a circular addressed to "All Accountant Generals etc. By Name" and the relevant portion of it is as hereunder- "Subject :- Maintenance of Seniority List of .Auditors and Audit Assistants. --Kindly refer to this office circular memo. No. 1018-NGE. 1/84-73, dated 5-11-1977, on the subject cited above.
8. In the light of information received from the Accountants-General etc. In response to the circular memo. Referred to above, it has been decided that the seniority list of Audit Assistants should be recast separately as under : -
(i) The inter se seniority of Audit Assistants as on 14-8-1973, based on the length of service as Auditor, should remain intact.
(ii) The seniority of Audit Assistants promoted as such on or after 15-8-1973 the date of promulgation of the Civil Servants Act, 1973, should be determined in accordance with the provisions of section 8 (4) of the said Act i. e. From the date of appointment as Audit Assistants."
9. The Auditor General in resisting all these appeals took up the written objection in the following words- "In the P. A. D., 35 % of the posts of U. D. Cs. Were allowed selection grade in 1952 and they were called as Selection Grade Clerks, Promotions from the ordinary grade to the selection grade were made on the basis of seniority-cum-fitness except for the period from 1957 to 1970 when the promotions were made on qualifying the depart--mental examination. As this promotion does not involve any change in duties and responsibilities, the U. D. Cs. And S. G. Cs. Have been treated, in the past, as belonging to one and the same cadre i.e. that of U. D. Cs. They were borne on a combined seniority list based on length of service as U. D. C. Promotions to higher posts were made from this combined list irrespective of the date from which an official was placed in the Selection Grade."
10. In replication Abdul Wahid commented on it as hereunder- "In fact neither a combined seniority list for auditors and Audit Assistants was ever maintained after promotion/confirmation of the appellant in the higher grade, nor there was any necessity for such action nor it was required and admissible under any law. It is also incorrect to say that the promotions in the next higher grades were made on the basis of inter se seniority as auditor, ignoring his seniority as Audit Assistant a post which was four degrees higher than that of auditor.
11. All departmental promotions in higher grades ought and were made out of the audit assistants holding posts higher than auditors. If done, otherwise at any time (which is not at least within the knowledge of the appellant) it was illegal action."
12. The Tribunal in its judgment dated 3-1-1982 took note of the facts in the Service Appeal of Abdul Wahid only and held as follows- "It is clear, beyond any shadow of doubt that the Selection Grade, was treated at the time of inception as a separate group. Again, from subsequent instructions and orders issued by the Auditor General, it is established that the Selection Grade continued to be treated as a separate group from the rest of the U. D. C. Grade."
13. "Even if no such list had been maintained all these years, we would have treated the two groups as separate and distinct for the purpose of determining the respective seniorities of the concerned employees. There should, therefore, have been no occasion for obtaining the Auditor General's orders afresh on the subject and the already prevailing practice should have been continued without any hesita--tion."
14. "To us, there appears to be no justification for the preparation of presumptive seniority list, as it obtained on 14-8-1973, and another list of Audit Assistants promoted on or after 15-8-1973. Apart from the fact that such action will disturb the recognised and unchallenged seniority of a number of employees, it will also make for a very unjustifiable discrimination between all those who were promoted before 15-8-1973 and those promoted afterwards. Those promoted before 15-8-1973 would count their seniority from the date of their appointment as U. D. Cs. (Auditor) whereas those promoted after 15-8-1973 would count from the date of their promotion as Audit Assistant."
15. "That the seniority list impugned against be recast on the lines of the seniority list last issued on 31- 12-1976 and that no distinction be made in the principle governing the preparation of the seniority list and applicable to these promoted prior to 15-8-1973 and those promoted subsequently."
16. In fairness to the Service Tribunal, it must be noted that in explicit terms it expressed its inability to understand certain aspects of the case admitting as follows- .
17. "(i) It is significant that the counsel for the Department and the departmental representative were both unable to explain how and why an occasion arose for preparing a seniority list of Audit Assistant as on 14-8-1973, in which an altogether different principles of determining seniority was adopted from that followed in the previous lists or laid down in the Auditor General's instruc--tion from time to time and that of Establishment Division directive on the point."
18. "(U) We are unable to appreciate why suddenly this principle was given a go bye to and the former practice abandoned and that too by retrospectively amending the seniority list and disturbing the position of the appellant, with effect from 14-8-1973, after the lapse of almost 7 years." "hiii) It was not explained as to why occasion arose for obtaining orders for the maintenance of separate lists in respect of Auditors and Audit Assistants after the promulgation of the Civil Servants Act, when, actually, all the time such separate lists had been maintained. It was, however, hinted that the- separate seniority lists were hitherto maintained unofficially and without lawful authority because, actually, U. D. Cs. (Auditors) and Selection Grade U. D. Cs. (Audit Assistants) really belonged to the same cadre, but not, that the U. D. Cs. Had been placed in Grade-7 and the Audit Assistants in Grade-I1, there was justification for keeping separate seniority lists, with effect 'from the date on which these grades were given to the two categories of employees, namely 15-8- 1973."
19. The Tribunal while concluding its judgment in Abdul Wahid's case held as follows- "As similar facts and circumstances obtained in Cases Nos. 69 (L)/1980, 70 (L)/1980, 71 (L)/1980, 72 (L)/1980, 73 (L)/1980, 74 (L)/1980, 75 (L)/1980, and 125 (L)/1980 and the same points of law are involved in these cases also the same decision will apply mutatis mutandis to those cases also."
20. Surprisingly, this judgment did not at that stage aggrieve, the Federa--tion, the Auditor-General or the Accountant-General Punjab. Only Muhammad Umar Malik and Muhammad Yaqub Rai filed a joint petition in this Court. Leave to Appeal was granted to them to examine whether it was a case where appeal in the Service Tribunal had been filedwithout first availing of departmental remedy of appeal .And revision and whether. These appellants" were neither given opportunity nor were called upon to address the Tribunal and that without considering their view point in the relevant appeal, the decision taken in the other appeal could not be made applicable to them".
21. The department started giving effect to the judgment of the Service Tribunal and on the basis of resettled seniority, Mr. Iqbal Ahmed Siddiqui who was not a party in any of these appeals, serving in B. S. 16 as Account Superintendent, was threatened with reversion. He filed an appeal before the Service Tribunal. The Tribunal disposed it of by the following observation- "In view of the above facts and for the reasons that the threatened reversion of the appellant is being made on the basis of the decision of this Tribunal in Appeal No. 123 (L)/1980, we do not think any interference on our part is called for. We, therefore; dismiss this appeal with no order as to costs. The stay order issued in this appeal stands vacated.
22. We make it clear that it is the decision on Appeal No. 123 (L)/1980 is reversed by the Supreme Court, then the case of the appellant shall have to be re-examined by the Government, so as to give effect to the order of the Supreme Court which may be made in appeal against our order."
23. Lal Hussain Akhtar, respondent before us in Civil Appeal No. 110 of 1984 after being successful in his Service Appeal (Service Tribunal Appeal 69/L of 1980) and on resettlement of seniority, presented an application for necessary action and implementation of the Service Tribunal's order dated 5-1- 1982. His claim was for Rs. 6,009.72. It was based on following grounds-
(i) he was reverted on 1-1-1975 on the basis of seniority of Auditors which was undone by Tribunal ; (ii)he was due for promotion to Grade-16 on 23-12-1978 but was actually promoted on 20-12-1980.
24. He calculated the amount due to him as hereunder- (1)S ecial Pay as Assistant Superintendent @ Rs. 35 p. m. Plus D. A.@Rs. 4 p. m. From 1-1-1975 to 30- 11-1978 i. e. Rs. 1833.
(2) Difference of pay from 23-12-1978 to_30-11-1979 @ Rs. 107 p. m. Plus D. A. @ Rs. 11 p. m., from 1-12- 1979 to 30-11-1980 @ Rs. 95 p. m. Plus Rs. 10 p. m.
25. D. A. From 1-12-1980 to 19-12-1980 @ Rs. 105 p m. And D. A. @ Rs. 11 p m. From 20-12-1980 to 30-6-1983 @ Rs. 50 p. m. Plus D. A. @ Rs. 5 p. m. And from 1-7-1983 todate @ Rs. 80 p. m. f. e. Rs. 3461.57.
26. (3)Difference of House Rent Allowance from 23-12-1978 to 30-11-1980 @ Rs. 60.75 p. m. And from 1- 12-1980 to 1!'-12-1980 @ Rs. 47.25 p. m. i. e. Rs. 715.15. The due seniority and amount as conse-- quential benefits are corollary of the orders of the Hon'ble Tribunal, dated 5-1-1982.
27. The total comes to Rs.1833.00 3461.57 715.15 6009.72"
28. In the written comments submitted to the Tribunal by Director General WAPDA Audit the following position was taken- "(a) As per orders dated 5-1-1982 in Appeal No. 123 (L)/80, the Service Tribunal has only determined the method for re-casting/ preparation of seniority list of Audit Assistants and these orders by itself do not confer any vested right on them to further promotion as Accountant.
29. (b)Further promotion to the post of Accountant (Grade-16) is made on the basis of seniority-cum- fitness and in terms of proviso under section 22 of the Civil Servants Act, 1973 dealing with `Right of Appeal or Representation' no representation lies on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade.
30. (c)No one has vested right to promotion."
31. The Accountant General Punjab in his comments on the application stated as follows- "The position was re-examined in consultation with the Law Division and it was considered that in the case of the appellants of this office (Appeals No. 69 (L)/80 to 75 (L)/80), if we implement the decision of the tribunal given in the said appeals, it would disturb the position of the parties in Appeal No. 82/82 before the Supreme Court of Pakistan, in whose case the Supreme Court had given orders for the maintenance of `status quo'. Accordingly the orders, dated 5-1-1982 of the Federal Service Tribunal cannot be implemented in the said appeal cases of the Audit and Accounts Assistants of this office till either the `Status quo' ordered by the Supreme Court is vacated or the Appeal No. 82/82 is finally decided by the Honour--able Supreme Court."
32. While disposing of this application the first objection was not even taken note of by the Service Tribunal the second was noticed in the following words- "It was stated by the Departmental Representative that though the figures of the arrears given by the petitioner are subject to verificationyet he is entitled to the payment of the arrears if the decision of this Tribunal is not reversed by the Supreme Court. It was suggested by the erstwhile Bench of this Tribunal to the learned counsel for the respondents to advise them to make the payments of the arrears due to the petitioner inasmuch as no appeal has been filed by the respondent-department before the Supreme Court against the decision of this Tribunal given in the petitioner's case and, in any case, if the decision of the Supreme Court on the appeal in another case at all would affect the right of the petitioner, the amount paid to him would be very conveniently recovered from him by the Department.
33. The learned counsel for the respondents thereon prayed for time to obtain instructions from the Department in this respect. When to-- day the matter was taken up by us, it was stated by the Departmental Representative that, in pursuance of the aforesaid proceedings of 5-12-1983, the Accountant General, Punjab, has sought instructions from the Auditor-General of Pakistan and unless and until such required instructions are received the Accountant General, Punjab, is unable to make the payments of arrears -as claimed by the petitioner."
34. The application was disposed of with the following operative order-- "After carefully considering every aspect of the matter we have come to the conclusion that the Office of the Accountant-General, Punjab, as well as the Auditor-General of Pakistan, have been unduly delaying the matter on unjustifiable pretext. We, therefore, direct that the arrears claimed by the petitioner subject to the verification of the amount, should be paid by the respondent -- department to him forthwith and as clarified during the hearing of 5-12-1983 if the decision of the Supreme Court to be taken on an appeal filed in another case, affects the right of the petitioner to receive the arrears then such amount would be recovered from him."
35. This order has finally aggrieved the Federation and its functionaries and the two main grounds taken in the petition are the same as were put forward before the Tribunal in writing.
36. In this manner, now there are three appeals before us, all arising out of different orders of the Tribunal but rooted in one decision whereby a number of appeals were disposed of.
37. Mr. Abid Hasan Minto, Advocate, the learned counsel for the appellants (in Civil Appeal No. 82 of 1982) submitted that the main grievance of the appellants, was that they were given no opportunity of putting in their side of the case and a decision was given without hearing them. On merits, it was submitted that though after the separation of the cadre of the Upper Division Clerks from that of the Selection Grade of the U. D. Cs., latter designated as Auditors and Audit Assistants, the vested right of the appellants to be promoted from the Auditor's list should not have been taken away till all the Auditors on the date of the separation of the two cadres were also considered for promotion and their list was exhausted. In other words, the learned counsel was setting up a vested right insofar as the rules of eligibility for promotion were concerned with a view to make the order of the competent authorities separating the two cadres subject to this overriding right of the Auditors.
38. Mr. Hassan Ahmad Kanwar, Advocate, the learned counsel representing the contesting respondent in that appeal took up the plea that the seniority list of the Selection Grade U. D. Cs. Had always been kept and circulated separately from the other combined seniority list and when the Civil Servants Act came into force it clearly recognised the principle of seniority in a grade and that principle being already in vogue in the department there was no inconsistency or incongruity which could have required a dispensation at the hands of the Auditor General in a manner to unsettle the established position.
39. Mr. Munir A. Shaikh, the learned Deputy Attorney-General, while defending the respondent Department, and in his appeal contended that impugned decision of the Auditor General was in fact a reiteration of the established legal position. It was, according to him, in accordance with the law prevailing at the relevant time. The decisions bad been taken by the competent authorities.
40. They were not liable to interference subsequently on the promulgation of the Civil Servants Act. In any case, the learned Deputy Attorney-General was more concerned with the monetary claim of one of the respondents, Lal Hussain Akhtar, which bad been allowed on the assumption that eligibility to get promotion also implies automatically the necessary element of fitness for promotion. It is contended that in order to claim the financial benefits of promoted positions not only one has to be eligible for promotion but has also to be found fit by the competent authority for promotion. In the case of Lal Hussain Akhtar, according to the Deputy Attorney-General, the finding of his fitness had yet to be recorded.
41. The Service Tribunal clearly exceeded its jurisdiction and authority in ante--dating the promotion without resolving or passing a verdict on the question of his fitness to be promoted.
42. Mr. Raza Hussain Shamsi, Advocate, the learned counsel for the appellant in Civil Appeal No. 311 of 1985 contended that his client was not a party in any of the appeals before the Service Tribunal nevertheless he has been adversely affected by the decision for the reason that in giving effect to the principle enunciated by the Service Tribunal he was threatened with reversion from a higher grade which was neither that of an Auditor nor of an Accounts Assistant. It was contended that the decision of the Service Tribunal had no such effect and that his promotion to the higher post could not be subject to revision on the basis of any assumed alteration in the seniority list.
43. After hearing the parties at length, we find that before us certain questions of fact are not in controversy. The first one is that the department had been maintaining two separate lists the one of what was called Selection Grade Clerks and the other was a combined seniority list of Upper Division Clerks and Selection Grade Clerks. The seniority of the same civil servant could be materially different in the two lists. The reason, therefore, was that in the combined. Seniority list seniority counted from the date of entry in the cadre of U. D. Cs. And remained intact notwithstanding the promotion in the Selection Grade. The second list of Selection Grade Clerks was of those U. D. Cs. Who were promoted as such and they counted their seniority in this group from the date of their regular appointment as Selection Grad Clerks. The senior among the Upper Division Clerks who joined this grade later were placed junior to those juniors who came in this grade earlier.
44. The second fact not in dispute before us by any of the parties is that promotion to the post in the grades higher than that of U. D. Cs. And Selection Grade Clerks was made not from the Selection Grade Clerks alone or in accordance with their seniority list but was made from the combined seniority list and in accordance with their seniority in the combined seniority list. This remained the position till the separation of the cadres took place in 1977.
45. The first impugned decision of the Service Tribunal appears to have ignored two important aspects of the case. The first was as to who was the competent authority to create a separate cadre and when in fact a separate cadre of Selection Grade Clerks was created. Without attending to these questions, the Service Tribunal, as the extracts taken from its judgment show, considering grade and cadre to be synonymous, came to the conclusion, which is erroneous, that if the pay scale is distinctly different then the cadre also becomes different. The second omission is that the real import of the impugned letter of the Auditor General has not been kept in view. The impugned portion of the order only required that something which was in existence on 14-8-1973 should remain intact. The actual words were "the inter se seniority of Audit Assistants as on 14-8-1973 based on the length of service as Auditor should remain intact". It was not a new dispensation by the Auditor General. It had its root in the past. It only kept intact something which was already in existence and enjoyed legal force on that date.
46. All the civil servants involved in or affected by these appeals were under the rule making authority of the President under Article 178 (2) of 1962 Constitution. Under Article 32 (b) (ibid) the President was authorised to regulate the allocation and transaction of the business of the Central Government and establish divisions of that Government. In exercise of that power the President had framed Rules of Business in 1962. Rule 10 of the aforesaid Rules of Business prescribed as follows- "10. Consultation with the Establishment Division.-No Division, shall, without previous consultation with the Establishment Division, issue or authorise any - orders, other than orders in pursuance of any general or special delegation made by the Establishment Division, which involve (a)
47. (b). '
48. (c)
49. (d)
50. (e)a change in the statutory rights and privileges of any Central Government servant ; (f)
51. (g)
52. (h)the interpretation of rules and orders made by the Establishment Division."
53. Similarly, in the Constitution of 1973, the President enjoyed such a power on the basis of Article 99 sub-Article (3). In exercise of these powers, Rules of Business were made in 1973. Rule I1 of these Rules of Business provided as follows-- "11. Consultation with the ERtablishment Division.-No Division shall, without previous consultation with the Establishment Division, issue, or authorise the issue of, any orders, other than orders in pursuance of any general or special delegation made by the Establish--ment Division, which involve--
(a) .
(b) .
(c) .
54. (d)a change in the terms and conditions of service of federal civil servants ; (e)a change in the statutory rights and privileges of any Federal Government servants ;
(f) .
(g) .
55. (h)the interpretation of rules and orders made by the Establishment Division ; and (i)rules for recruitment to any post or service, including the question of removing a post or service from the purview of the Federal Public Service Commission for the purposes of recruitment."
56. Rule 7 of Rules of Business, 1973 provided as follows "7. Orders and instruments, agreements and contracts.-(1) Subject to Article 173, all executive actions of Government shall be expressed to be taken in the name of the President.
57. Note : The use of the expression "Federal Government" in relation to Provincial Government and "Government of Pakistan" in relation to foreign Governments shall be in order."
58. In exercise of these powers, the Establishment Division conveyed a general policy decision with regard to the maintenance of seniority list as on 15-8-1973 and this is contained in Esta Code (1983 edition, page 150) and bears the O. M. No. 1/36/75-D. II, dated the 1st of September, 1975. After considering all aspects of the case including a number of references received by it, a decision was taken and is expressed in the following words- "The matter has been examined in consultation with the Law Division. The position is that consequent upon the Administrative Reforms, certain cadres have been transformed into occupational groups but the composition of the cadres comprising these groups has remained intact. Examples are ; the Income tax Group, the Custom and Excise Group, the Military Lands and Cantonments Group etc. However, in the case of certain other groups-for example the Accounts Group and the Secretariat Group-a number of cadres have been amalgamated to form anew group or cadre. In the case of groups where the cadre has not been amalgamated with any other cadre, the seniority in different grades as determined under the previous rules before the promulgation of the Civil Servants Ordi--nance, 1973 (15-8-1973) shall not be disturbed. However, seniority of persons promoted to higher grades after 15-8-1973 shall be deter--mined strictly in accordance with the provisions of subsection (4) of section 8 of the Civil Servants Act, 1973."
59. It was this decision of the Establishment Division which was being implemented by the impugned directive of the Auditor General and by declaring it to be without lawful authority the Service Tribunal has indirectly set aside this general policy decision of the Establishment Division and such result could not be achieved indirectly.
60. Nowhere on the record, or during the course of the arguments, or otherwise, any directive of the Establishment Division or of the rule making authority has been shown creating two distinct cadres ; one of the Selection Grade Clerks and the other of the Upper Division Clerks before 1976. On the contrary, the material on record shows that it was a single cadre. For example, on 23-8-1976 the Auditor General himself addressed the Secretary, Ministry of Finance, recommending the demand of the Grades 3 to 15 Employees' Association of Pakistan, Audit and Accounts Department for the separation of these two cadres. It was mentioned therein that "the demand of the Association has been reconsidered. This office is of the view that the benefit of para. (1) of Part-1 of Finance Division O. M. ibid cannot be extended to them unless the posts of Auditors and Audit and Accounts Assistants are treated as belonging to separate cadres". The recommenda--tions were couched in these words- "It is, therefore, recommended that the Auditors and Audit and Accounts Assistants may be treated as belonging to separate cadres without defining their duties and resposibilities separately, so that the benefit admissible in case of normal promotion may also accrue to them on their promotion from the posts of Auditors to that of Audit Assist--ant. This would, however, obviously lead to preparation of separate seniority lists for the cadres further promotion as Accountants against 33 % quota would also be made from the cadre of Audit and Accounts Assistants instead of Auditors,"
61. It was on the 6th of April, 1977 that the Cabinet Secretary, Establish--ment Division approved of the following arrangement- "that the question of maintaining separate seniority lists of the Auditors (Grade 7) and Audit Assistants (Grade-11) and their promotion to the post of S.A.S. Accountants has been considered in the Establish--ment Division. Since the posts of Audit Assistants are now in higher grade than that of the Auditors, it seems appropriate that separate seniority lists should be maintained for the two grades and in future promotions to the post of S. A. S. Accountant should be made from amongst the Audit Assistants."
62. This was communicated by the Finance Division to the Auditor General on 22nd of June, 1977. The Auditor General on the strength of this decision of the Establishment Division communicated the following order on 8th of September, 1977- .
63. "It has been decided in consultation with the Establishment Division that the posts of Auditors and Audit Assistants would henceforth be treated as belonging to separate cadres and separate seniority lists of Auditors and Audit Assistants would be maintained w. e. f. 10.8-1977."
64. This again led to a number of inquiries and fixity was given to the seniority as on 15th of August, 1973 by the impugned order of the Auditor General to make the situation consistent with the decision of the Establishment Division with regard to the effect of subsection (4) of section 8 of the Civil Servants Act on the fixation and determination of seniority in a grade.
65. There is yet another aspect of the case. Fundamental Rule 7 provides as follows- "No powers may be exercised or delegated under these rules except after consultation with the Ministry of Finance. It shall be open to that Ministry to prescribe by general or special order cases in which its consent may be presumed to have been given."
66. As pointed out, there was a persistent and strong demand by the Association of the Employees that the Selection Grade should be considered a definite improvement in duties and responsibilities. The case was repeatedly taken to the Ministry of Finance and Establishment Division and one such decision taken appears at page 54 of O & M Establishment Manual, Volume I in the following words- "According to F. R. 30, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, other than a tenure post, on which he holds a lien or would hold a lien had his lien not been suspended or unless the post in which he is appointed to officiate is one of those enumerated in the schedule to that Rule. A question has been raised whether for the above purpose appointment to the Selection Grade involves the assumption of duties and responsibilities of greater importance than those attaching to posts in the ordinary grade. The position is that Ordinary Grade and Selection Grade are 2 grades of one and the same post. Promotion of a person from the Ordinary Grade to the Selection Grade of a cadre does not mean a change of posts and consequently dose not involve assumption of duties and responsi-- bilities of greater importance for the purpose of F. R. 30.
67. (Ministry of Finance Office Memorandum No. 2 (47)/R, 11 (1)/54, dated the 13th June, 1955."
68. All this indicates that the cadre of Selection Grade Clerks and Upper Division Clerks was one and the same notwithstanding the difference in their Pay Scales. The seniority list -had to be prepared, before the promul--gation of the Civil Servants Act, in accordance with service or cadre and not on the basis of pay scales. The combined seniority list of U. D. Cs. And Selection Grade Clerks was, therefore, maintained in accordance with the law then in force and the seniority so obtaining on 15th of August, 1973 was given fixity notwithstanding the fact that section 8 of Civil Servants Act declared that seniority was (prospectively) not a vested right. Now, the only question is what was the seniority on 15-8-1973 of the employees who are arrayed in litigation.
69. In one of appeals, the comparative seniority positions on the two lists was indicated and it bears out that position in the two lists were materially different. For example, in the Selection Grade Clerks seniority list published in 1965 two appellants Umar Malik and Yakub Rai are not shown in that scale of pay at all because they had not till then been promoted while Hamid Saqfi finds his place at seniority No 140 but in the combined list Yakub Rai is at S. No. 213, Umar Malik at 214 while Hamid Saqfi is at S. 308. In the list of 1-7-1974 in the Selection Grade list Hamid Saqfi is at S. 152, Yakub Rai at S. 508 while Umar Malik is at S. 509. In the combined seniority list the position of Yaqub Rai is- at S. 153, of Umar Malik at S. 154 and of Hamid Saqfi at S. 242. In the Selection grade list published on 1- 12-1976 Hamid Saqfi is at S. 146, Yakub Rai at 492 and Umar Malik at S. 493. In the combined list of the same date Yakub Rai is at S. 147, Umar Malik is at S. 148 and Hamid Saqfi is at S. 231.
70. The Service Tribunal while deciding the question whether two lists of seniority should be maintained or one, unsettled a settled rule of seniority for the purposes of eligibility for promotion to the higher grade without being aware of it. Even if the two lists were being maintained separately as a departmental practice, the question was from which list was the promotion to the next higher grade made on the basis of seniority-cum-fitness. There is no indication and nong was suggested, that prior to the introduction of Civil Servants Act the. Promotion to the higher posts was restricted to the Selection Grade Clerks and that in the same process the U. D. Cs. Were considered. It means that the seniority list for the purposes of promotion to the higher grade was the combined list and not one of Selection Grade Clerks. If we lend fixity to the seniority as on 15-8-1973 according to the principle then prevailing then it is the seniority as Auditor which will prevail with the additional factor that after the separation of cadre the eligibles should be holding Selection Grade posts.
71. This hot contest over seniority is not over whether one list should be maintained or two because it appears to us that the top-most contestants have all left the grade B. S. 7 and 11 and are in fact officiating in the higher grade B. P. S. 16. Their effort was to unsettle the rule of seniority regarding eligibility for promotion to the next higher Grade B. P. S. 16 by staking operative retrospectively the change whereby after separation of the two cadres only Selection Grade Clerks remained eligible for promotion. This is apparent from the fact that unsettling of seniority as on 14-8-1973 has been achieved threatening the reversion, on the ground of lack of seniority alone, of persons like Iqbal Ahmad Siddiqui who was not a party in any of the appeals before the Service Tribunal. Similarly Lal Hussain Akhtar has. Simply on the basis of refixation of his seniority as on 14-8-1973 successfully obtained from the Tribunal arrears of pay and allowances him--self antedating his date of promotion.
72. What we regretably notice in these appeals is that the Federal Govern--ment and its concerned departments have instead of meaningfully participat--ing in the proceedings, allowed a policy decision of the competent authority equally applicable to all other civil servants similarly placed, to become the subject-matter of a contentious litigation between an important section of the civil servants, and felt somewhat unconcerned when it was disturbed resulting in promotions and demotions on such a large scale. It appears to us that the Service Tribunal (Procedure) Rules 1974 has also contributed to this state of affairs. Rule 6 clause (e) of these Rules requires that "every memorandum of appeal shall be accompanied by a copy of the final order, whether original or appellate, and any other order of the competent authority in respect of any of the terms and conditions of Service of the appellant against which the appeal is preferred". Rule 13 sub-rule (2) requires of the objecting respondents to file "a copy of every document on which the respondent wishes to rely in support of his objections". The Government and its department have been treated like any respondent and left with an option. The amplitude of the power enjoyed by the Service Tribunal as indicated by this Court in M. Yamin Qureshi's case (PLD 1980SC 22demands that all the material taken into consideration by the departmental authorities should ordinarily be made available to the Tribunal instead of leaving it to wade through Manual of Instructions and memoranda issuing from time to time to which neither the Tribunal nor the parties or their lawyers have ready access and the assistance rendered at the bar in such cases is less than adequate. For example, in this case while submitting its objection the following points were specifically pleaded by the Auditor General-- "(i) the U. D. Cs. And S. G. Cs. Have been treated in the past, as belonging to one and the same cadre i.e. that of U. D. Cs."
73. "(ii) They were borne on a combined seniority list based on length of service as U. D. Cs."
74. "(iii) Promotions to higher posts were made from this combined list irrespective of the date from which an official was placed in the Selection Grade."
75. As documents to support these assertions were neither filed along with the objections nor referred to at the argument stage the Tribunal failed to appreciate its basis and rationality.
76. We do not feel the necessity of dealing with the two questions on which Leave to Appeal was granted to Umar Malik and his colleague, because in the other two appeals the merits of the decision of the Tribunal had in any case to be examined.
77. Mr. Abid Hasan Minto, Advocate, when called upon to address arguments on merits, urged that the rules of promotion should not have been Gban8ed so as to affect adversely those already on the eligibilities list i. e. The combined list of the U.D.Cs. And S.G.Cs. In other words he was claim--ing a vested right in promotion for all the U.D.Cs. Borne on the joint cadre on the date of its separation.
78. The position of law on the subject is clear in view of numerous decisions of this Court, e. g.
79. Government of West Pakistan v. Fida Muhammad Khan (1) Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan (2), Province of West Pakistan v. Muhammad Akhtar (3), Manzur Ahmad v. Muhammad Ishaq (4). No such vested right in promotion or rules determining eligibility for promotion exists.
80. For the foregoing reasons we accept all the appeals and set aside the impugned judgments of the Service Tribunal. The result is that the Service Appeals No. 70 (L) of 1980 filed by Abdul Hamid Saqfi and Miscellaneous Petition No. 11 (L) 1983 in Service Appeal No. 69 (L) of 1980 filed by Lal Hussain Akhtar before the Service Tribunal shall stand dismissed and the Service Appeal (490/R-1984) filed by Iqbal Ahmad Siddiqui before Service Tribunal is allowed. The parties are left to their own costs.
(1) PLD1960SC45 (2) PLD1960SC81
(3) PLD 1962 SC 428. (4) PLD 1964 SC 17