1. ' MUNAWAR ALI KHAN (CHAIRMAN).--This judgment will dispose of three appeals: Appeal No, 88 of 1987 filed by Mazhar Ali Memon, Appeal No, 89 of 1987 filed by Gul Muhammad Bhatti and Appeal No, 90 of 1987 filed by Shamim Ahmad Khan. These appeals have arisen from the seniority list of B.S.17 Officers issued on 14th July, 1987 by Secretary to Government of Sind, Population and Welfare Department. All the three appellants claim to be senior to the private respondents specified in their respective memos of appeal. The factual background of their case is that they were promoted as Senior Population Planning Officers in BS-17 on 20-8-1973. Subsequently, like other staff and officers of the Population Programmer, their services were transferred to the Ministry of Health and Population Division, Government of Pakistan and they ultimately came under the Government control with effect from 30-4-1977. Four years later, Government of Pakistan promulgated Population Welfare Planning Programmer (Appointment and Termination of Service) Ordinance 1981 (Ordinance XIV of 1981) hereinafter referred to as the said Ordinance. As is clear from its preamble the idea was to restructure and reorganize the Population Programmer and the matters connected with it. Under the said Ordinance the appellants were referred to the Federal Public Service Commission for its approval. Somehow they did not appear before the Commission with the result that their services were terminated. Those who appeared before the Commission and were duly approved by it, were appointed under the said Ordinance. Meanwhile like other affected officers the appellants challenged the order of termination of their services in appeal before the Federal Service Tribunal, who vide its judgment dated 9-1-1983 set aside the said order. The Government preferred appeal against the order of the Service Tribunal, in the Supreme Court. In course of hearing of the case in the Supreme Court, the Deputy Attorney-General, after consulting with the Government, made some offer as basis for deciding the cases of the appellants and other affected officers. On acceptance of the offer by the appellants and number of other officers, their cases were disposed of by the Supreme Court in terms of the said offer vide its judgment dated 29th February, 1984 in Civil Appeal No, 140 of 1984.
2. ' In obedience to the said judgment of the Supreme Court the appellants appeared before the Public Service Commission and after their clearance by the Commission they were appointed on regular basis by Notification dated 30-11986. By separate notification of the same date their services were placed at the disposal of the Sind Government. However before the appellants' regular appointment under the said Ordinance, respondents Mrs. Shakila Nighat, Mr. Ghulam Muhammad Memon, Mr. Shamsuddin Qureshi and Khawaja Ashfaq Ahmad were promoted on regular basis to higher posts of S-18 vide Government's notification dated 26-1-1986. The Government of Sind issued a provisional seniority list showing appellants as junior to respondents whose names are mentioned in their memos. Of appeal. The appellants filed objections against the said list but without giving them any hearing, the Population Department of. Sind Government issued a final seniority list on 14th July, 1987 perpetuating the appellants' seniority position as reflected in the provisional seniority list. Thereupon the appellants after availing departmental remedy have approached this Tribunal for the desired relief.
3. ' We heard detailed arguments of the parties and their counsel. We also went through the memo.
4. Of documents produced in all the three appeals.
5. ' It was contended by the learned counsel for the appellants that the appellants were shown senior to the private respondents in all seniority lists issued prior to the impugned seniority list. He further submitted that even in the judgment of the Supreme Court dated 29th February, 1984, appellants' seniority in relation to private respondents was protected. Basing his further argument on the said judgment the learned counsel stated that the appellants' seniority vis-a-vis private respondents remained unaltered notwithstanding their belated appearance before the Public Service Commission and consequent delay in their appointments on recommendation of the Commission.
6. In this connection the learned counsel also placed reliance on the said Ordinance. He argued that the appellants had become civil servants as earns as their services were transferred to the Federal.
7. Government and not from the date on which their appointment was notified following the recommendations of the Public Service Commission..
8. ' On the other hand the stand taken on behalf of the respondents was that appellants' seniority in relation to private respondents was to be reckoned from the date of their appointment as civil servants under the said Ordinance. According to their argument, the appellants became civil servants only after their appointment with the approval of the Public Service Commission. Thus, they further argued, since the appointment of the respondents on the recommendations of the Commission took place earlier than the appointment of the appellants, the former would rank senior to the latter. As for .Respondents Shamsuddin Qureshi, Khawaja Ashfaq, Mrs: Shakila Nighat and Ghulam Muhammad Memon, it was submitted that as their names do not appear in the impugned seniority list, the appellants had no cause of action against them and as such the Service Tribunal cannot adjudicate in respect of their seniority.
9. ' We have given our best thought to the arguments advanced by both the partieS. It appears 'to us that the dispute over the seniority arose between the parties in the wake of their appointment under the said Ordinance. It is disclosed in column 5 of the impugned seniority list that the respondents Muhammad Ajmal, Mrs. Nasim Shahid, Abdur Rchman Siddiqui and Sikandar Berlas were obviously appointed under the said Ordinance earlier than 30-1-1986 which is the date of the appellants' appointment. It isoot denied that even respondents Mrs. Shakila Nighat Naqvi, Ghulam Muhammad Memon, Shamsuddin Qureshi and Khawaja Ashfaq whose names do not find mention in the impugned seniority list were appointed prior to the said-date. This being the position, the first thing to be decided would be if the seniority of the parties was linked with their status as civil servants and if so from what date they assumed such status. This question came up for consideration before the Supreme Court in the case referred to above. The relevant observations of the Supreme Court touching the point of time when the parties became civil servants are reproduced below: "There was no commitment in the letter of appointment dated 2-7-1977 that the employees would become, by the acceptance of the letter itself, civil servants. The fact that the procedure relating to Government servants was made applicable to the employees by the office memorandum dated 30-12-1976 or that the employees were made subject to rules and regulations applicable to temporary Government employees by the letter dated 2-7-1977, would not per se make them civil servants ' The cases of the employees were to be referred to the Commission under sections 3 and 4 before formally appointing them under the Ordinance and only after they had been so appointed that they would acquire the status of civil servant within the meaning of Civil Servants Act, 1973."
10. Since the judgment of the Supreme Court is binding on us, we hold that the appellants as well as respondents became civil servants after their appointment on recommendations of the Public Service Commission under the said Ordinance.
11. ' The second part of the above question is whether the seniority of the parties was to be determined from the date of their acquiring the status of civil servant. In normal course seniority of the civil servant is reckoned from the date of regular appointment which is invariably made on recommendations of the Public Service Commission, in case of officers of Grade 16 and above. But in the case under consideration section 8 of the said Ordinance operates as an exception to the above procedure. Section 8 reads as under: "8. Seniority.--(1) Seniority of persons appointed under section 3 shall be determined in a grade from the date of appointment to that grade in the Council or, as the case may be, the Board. (2)
12. These appointed in the same grade shall take seniority according to their dates of birth."
13. Keeping the above provision of law in view there should be no doubt that seniority of a civil servant appointed under section 3 of the said Ordinance would be determined not from the date of such appointment but from the date of the appointment in the specified grade in the council or the Board. This view finds support also from the judgment of the Supreme Court hereinabove. In course of the hearing of the case, the learned Deputy Attorney-General in consultation with the Government made certain offers which are reproduced as under: "(1) Those persons whose cases are before the Supreme Court, except those who appeared before the F.P.S.C. But failed to qualify, shall be referred to F.P.S.C. Without limitation of age if they fulfill the qualification regarding education and experience as provided under the rules, after reinstating prospectively only those who have appealed before Supreme Court against the order of the Federal Service Tribunal and sought their reinstatement.
(2) Whatever service records are available shall be sent to the F.F'.S.C.
(3) No exemptions from written test were allowed by the Population Welfare Division outside the rules to those persons whose cases were referred to F.P.S.C., all such cases were covered by the rules on the subject. This principle shall apply in future also.
(4) Those who, in consequences of this arrangement, arc appointed on the recommendations of F.P.S.C. Under section 3 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 shall refund terminal benefits, if already drawn.
14. (5)Those who are not appointed under the provisions of the Ordinance of 1981, shall not be entitled to any terminal benefits, if already drawn by them.
(6) Any appointments made in consequence of this arrangement on the recommendation of the F.P.S.C. Shall not affect the rights of persons already appointed by the competent authority on the recommendation of F.P.S.C., except with regard to seniority, which shall be determined as provided under section 8 of Ordinance of 1981. - (7)The appointments made as a consequence of this arrangement on the recommendations of the F.P.S.C. Will be limited to existing vacancies available in the Population Welfare Programme in accordance with section 6 of Ordinance of 1981.
15. (8)Those persons who could not appear in the F.P.S.C. Examination/interviews heldin 1981 on medical grounds and duly intimated their inability to do so to the Population Welfare Division or the F.P.S.C. Before the examination interviews held in 1981, their cases shall also be referred to F.P.S.C.
16. (9)In case of persons who are finally appointed under this arrangement, the period between the date of their termination of services and their reinstatement shall be treated as extraordinary leave without pay and will be counted for pension, as admissible under the rules."
17. ' Para. 6 of the above offers is pertinent for our purpose.
18. ' It clearly shows that any appointment made in consequence of the arrangement resulting from the offer shall not affect the rights of the persons already appointed by the competent authority on recommendations of the Federal Public Service Commission, except with regard to seniority which shall be determined as provided under section 8 of the Ordinance of 1982. The Hon'lile Supreme Court was pleased to approve that Offers including the said para. Relating to determination of seniority in the following words: "In the light of above discussion we convert the petitions of the ex-employees who have accepted the offer made by the learned Deputy Attorney-General and dispose of the same in terms of the offer.
19. ' It is an admitted position that in pursuance of the above decision of the Supreme Court. All the three appellants appeared before the Public Service Commission and after they were cleared by the Commission, they were appointed under section 3 of the said Ordinance vide Government Notification dated 3071,1986. It is also a matter of record that prior to the said appointment they were reinstated in service and the intervening period for which they remained out of service was counted as extraordinary leave without pay. In this connection reference may be made to the Notification No, 10-48/82-Admn.11(B), dated 19th July, 1984 of Government of Pakistan, Ministry of Planning and Development (Population Welfare) Division and para. 9 of the offers. In this way the continuity of the appellants' service was also maintained: Since the appointment of the appellants was notified under section 3 of the said Ordinance, their seniority was to be determined in accordance with section 8 of the said Ordinance which obviously requires seniority to be reached from the date of their appointment in Grade-17 in the Council or as the case may be the Board.
20. However, in violation of such legal requirement the date of appellants' appointment under section 3 of the said Ordinance has been made the basis for determining their seniority. Accordingly the seniority position assigned to the appellants in the impugned seniority list cannot be sustained.
21. ' As for the four private respondents whose names are missing from the impugned seniority list, our attention has been drawn to the Notification dated 26-1-1986 whereby they were promoted to BP-
18. Thus, by the date of issuing of the impugned seniority list, they were no longer in Grade-17. This explains their omission from the impugned seniority list. As stated above according to para. 6 of the offer made by the Deputy Attorney-General which was duly approved by the Supreme Court, any appointment made in pursuance of the offer was not to affect the right of the persons already appointed on recommendations of the Commission except seniority which was to be determined as per section 8 of the said Ordinance. In our opinion promotions being a right enjoyed protection under para 6 of the offer. Since the said four respondents were promoted prior to appellants' appointment under the said Ordinance, their promotion would not be 1) disturbed. Two authorities of the Supreme Court namely 1988 SCMR 1175 and 1988 SCMR 620 relied upon by Mr. Niaz Ahmad, the learned counsel for the respondents are distinguishable as they have no bearing on the case under consideration.
22. ' As a result of above discussion we allow all the three appeals and direct that appellants' seniority in BS-17 will be predetermined in accordance with the requirements of section 8 of the said Ordinance. We further direct that the redetermination of appellants' seniority will not have the effect of disturbing the promotion of the four respondents namely Mr. Shamsuddin Oureshi, Khawaj Ashfaq Ahmad, Mrs. Shakila Nighat Naqvi and Mr. Ghulam Muhamma Memon. The parties will bear their own costs.