' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Khan Badshah Fayyaz has preferred this appeal for determination of his seniority vis-a-vis. Respondents Nos. 3 and 4, M/s. Naecm Akhtar Naeem and Iqbal Ahmad, all serving as Deputy Directors (B-18) in the Ministry of Local Government and Rural Development.
2. The appellant was working as a Research Officer (B-17) in the Pakistan Academy for Rural Development, Peshawar. He was appointed as a Deputy Director (B-18), by way of transfer, in the Ministry of Local Government and Rural Development vide notification dated 26-2-1977, with effect from 21-2-1977. His appointment was on ad hoc basis for a period of six months or till a nominee of the Federal Public Service Commission was available, whichever event was earlier. He was subsequently selected by the Commission and was regularly appointed in the same capacity in the same Division with effect from 21-7-1979 vide notification dated 31-7-1979. The respondent No, 3 (Mr. Naeem Akhtar Naeem) was absorbed in the same Ministry of Local Government and Rural Development, as a Deputy Director (B-18) on 27-9-1978 on his having become a surplus Research Officer in the 0 & M Division. The respondent No, 4 (Mr. Iqbal Ahmad) was appointed in the same Ministry on 6-7-1980 as a Deputy Director (B-18) on transfer from the Ministry of Religious Affairs where he was serving as a Senior Research Officer from 5-7-1978. A seniority list of the Deputy Directors (B-18) was circulated by the Ministry of Local Government anti Rural Development on 10- 1-1983, wherein the appellant was placed at S.No, 4 and the respondents Nos. 3 and 4 were placed above him at S. Nos. 2 and 3 respectively. The appellant made representation dated 29-1-1983, claiming seniority over and above the respondents Nos. 3 and 4. His representation was rejected vide Memorandum dated 13-1-1985. He preferred departmental appeal on 15-6-1986.
' His appeal was rejected vide memorandum dated 11-11-1986. He preferred this appeal on 30-11- 1986.
3. The appellant claims seniority over the respondents Nos. 3 and 4 on the ground that he had entered the Ministry of Local Government and Rural Development earlier than they entered the department and they could not reckon seniority above him. The respondents Nos. 3 and 4 have contested the appeal and contended that they had entered B-18 earlier than the appellant, although in other departments, and they were senior to him, no matter that they had entered the department later. Their case has been supported by the Establishment Division, the respondent No, 1.
4. The contentions of the parties need penetration into the facts in more details. They are stated in great detail in the written objections filed by the Establishment Division. It is stated in para. 3 of the written objections that the appellant was regularly appointed as a Deputy Director with effect from 21-7-1979 on the recommendation by the Federal Public Service Commission. It is further stated in para. 4 of the written objections that the respondent No, 3 (Mr. Naeem Akhtar Naeem) was appointed as a Senior Research Officer (B-18), on the recommendation by the Federal Public Service Commission, with effect from 4-8-1977 in the 0 & M Division but that Wing stood wound up' and his name was placed on the surplus list vide Office Memorandum dated 21-9-1977 and he was later appointed as Deputy Director (B-18) in the Ministry of Local Government and Rural Development vide u/o dated 19-9-1978. It is stated in para. 5 of the written objections that the respondent No, 4 (Mr. Iqbal Ahmad) was appointed as a Deputy Director in the Ministry of Local Government and Rural Development from surplus pool vide Office Memorandum dated 3-6-1980.
Of course, it has not been stated by the Establishment Division as to what was the previous service career of this respondent No,
4. Respondent No, 4 also has not given clear history of his service previous to his entering the Ministry of Local Government and Rural Development. But it appears from a notification dated 26-4-1979 filed by him as Annexure 'D' to his written objections that he was an Assistant Director (B-17) in the Ministry of Religious Affairs and Minorities Affairs and he was promoted as a Senior Computer Officer (B-18) and had taken over charge, as such, on 10-4-1979. It further appears that he was placed in surplus pool and he was absorbed in the Ministry of Local Government and Rural Development vide Establishment Division Office Memo. Dated 3-6-1980 and his appointment order as Deputy Director (B-18) was issued from the. Establishment Division on 3- 7-1980. Both these documents are Annexures `E' and 'F' to the written objections filed by the respondent No,
4. It thus follows that the appellant had entered the Ministry of Local Government and Rural Development in B-18 earlier than the respondents Nos. 3 and 4. The respondents Nos. 3 and 4 have been given seniority above him on the ground that they had entered B-18, although in other departments, earlier than the appellant. It may be clarified here, at the risk of repetition, that the appellant had entered B-18 first time on ad hoc basis on 21-2-1977 and on regular basis with effect from 21-7-1979; and the respondent No, 3 was appointed in B-18 first time on 4-8-1977; while the respondent No, 4 was regularly promoted to B-18, with effect from 10-4-1979 and the dates of their entry as B-18 Officers in the Ministry of Local Government and Rural Development respectively were 21-2-1977 (ad hoc) and 21-7-1979 (regular) (in case of appellant); and 19-9-1978 and 3-6- 1980 of respondents Nos. 3 and 4 respectively. It is thus obvious that the respondent No, 3 had entered the Ministry of Local Government and Rural Development in B-18 earlier than the appellant's regular appointment in that Ministry and that of the respondent No, 4 was subsequent to that of the regular appointment of the appellant. However, the subtle question for determination, therefore, is whether the inter se seniority of the appellant and the respondents Nos. 3 and 4 was to be determined on the basis of the dates of their entry as B-18 officers in the Ministry of Local Government and Rural Development or from the dates they had actually entered B-18 wherever they were. The facts stated above bear out that the appellant as well as the respondents Nos. 3 and 4 entered the Ministry of Local Government and Rural Development from other departments.
The appellant went there by way of transfer from Pakistan Academy for Rural Development, Peshawar. The respondents Nos. 3 and 4 stepped in the Ministry by way of absorption on having become surplus in other departments. Appointments to civil posts are made under the Civil Servants Act, 1973. Section 5 thereof lays down that the appointments to civil posts in connection with the affairs of the Federation shall be made in the prescribed manner. The manner of appointments to the civil posts is laid down in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. Rule 3 thereof provides that appointments to civil posts shall be made by two methods, namely--promotion/transfer and initial appointment in the manner provided in the rules.
The rules do not provide for any other mode of appointments, much less the mode of "absorption".
Neither the appellant nor the respondents Nos. 3 and 4 had entered the Ministry of Local Government and Rural Development either by promotion or by initial appointment. As stated above, the appellant's entry in the Ministry was, undoubtedly, by way of transfer. The absorption of the respondents Nos. 3 and 4 in the Ministry would be construed to be by way of transfer. By virtue of subsection (2) of section 8 of the Civil Servants Act, 1973, the seniority of a civil servant in relation to other civil servants belonging to the same service or cadre, whether serving in the same department or office, or not, shall be reckoned as may be prescribed. The general principles of determination of seniority are published in ESTACODE, 1983 edition, at page 153 onwards. Those principles relate to the direct recruits and the departmental promotions. The rules for determination of seniority on transfer from one office to another are at paragraph 6 of S.No, 30, at pages 217 to 219 of the ESTACODE, 1983 edition, the relevant paragraph being at page 218. It is provided therein that seniority in the office to which a civil servant is transferred is to be determined in the manner that when it is open to the person concerned to accept or refuse an offer of appointment in any office, he should count his seniority in the new office from the date of his transfer to that office; and when a person is compulsorily transferred to another office as a result of conscription or along with the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office. There does not seem any complication for the counting of the seniority of the appellant in his new office as he was transferred to the Ministry of Local Government and Rural Development by promotion on ad hoc basis and was absorbed there by way of his regular appointment after selection by the Federal Public Service Commission with effect from 21-7-1979. As regards the respondents Nos. 3 and 4, their absorption in the Ministry was not by way of conscription, strictly speaking, but they had to be absorbed on account of the abolition of the posts they had held in other departments. In order to safeguard interest of the surplus staff, a policy was issued by the Establishment Division under Office Memorandum dated 7-6-1980 providing that surplus persons shall be absorbed/appointed in other departments against vacant posts, irrespective of promotion or direct quota posts, and as far as possible be adjusted against equivalent posts and that the previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post if absorbed against an equivalent post. Reading the general principles of determination of seniority on transfer, as aforesaid, and the provisions contained in the Office Memorandum dated 7-6-1980, referred to above, it would follow that the respondents Nos. 3 and 4 did carry their previous service in the cadre on their absorption in the Ministry of Local Government and Rural Development. It may be mentioned that the efficacy of the policy contained in Office Memorandum dated 7-6-1980 regarding absorption of surplus staff was considered by a Bench of this Tribunal in the case of Sarfraz Khan Jadoon v. Secretary, Ministry of Education and others, reported in 1987 PLC (C.S.) 194, and it was held that it was not a validly made policy. With due regard for the view adopted by the Bench in that case, I hold a different view that policy decisions in respect of services in the Federal Government are issued by and from the Establishment Division and the policy in respect of absorption of surplus staff, referred to above, is a valid document issued from a competent source. It may also be mentioned that the decision of this Tribunal in Sarfraz Khan Jadoon's case has been appealed against before the Supreme Court and its operation has been suspended. Reference may also be made to other two cases relied upon by the learned counsel for the appellant viz. Pakistan v. Abdus Quddus 1970 SCMR 152 and Abdul Hameed v. Secretary to the Government of Punjab 1975 PLC (CST)
1. The first case has absolutely no relevancy to the facts of this case. In that case, the question of seniority was not involved but it was a case of appointment after abolition of an ex-cadre post. The second case, of course, related to seniority to an official rendered surplus in one department and absorbed in another department and it was held that benefit of past service in previous department could not be claimed in the department where the official was absorbed; but that decision was based on a letter dated 8-1- 1969 of the West Pakistan Government Services and General Administration Department. The instant case is regulated by the policy laid down in the Establishment Division policy letter contained in Office Memo dated 7-6-1980, discussed above. The seniority of the respondent No, 3 was not assailable as he had entered the service in the Ministry of Local Government and Rural Development earlier than the regular appointment of the appellant in that Ministry. Consequent to the reasons recorded above, it is held that the respondents Nos. 3 and 4 have been rightly assigned seniority above the appellant on considering their previous service.
5. The respondents have resisted the appeal also on the ground that it is time-barred. Their contention is that the departmental representation was rejected on 13-1-1985 and departmental appeal was filed on 15-6-1986 and it was time-barred and the appeal filed on the basis of the appellate order on departmental appeal is also time-barred. It appears from the appellate order dated 11-11-1986 that the departmental representation/appeal was decided on merits and the question of limitation was not raised. The appeal filed on 30-11-1986 was within the period of thirty days from the appellate order. In the circumstances, the appeal is not time-barred.
6. In the result, there is no merit in appeal and it is dismissed with no order as to costs.