SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Muhammad Rafiq Asghar is an officer in the All-Pakistan Unified Grades, Secretariat Group. He has preferred this appeal for determination of his seniority in the Group etc.
2. The appellant's case, briefly stated, is that he, on qualifying the Lateral Entry Examination for the posts of Deputy Secretaries held by the Establishment Division in 1974, was appointed as a Deputy Secretary to the Government of Pakistan, vide Establishment Division Notification No, 22/6/74- AV(3), dated 27-6-1974 and he assumed charge of the post of a Deputy Secretary in the Finance Division on 1-7-1974, as notified in the Finance Division's Notification No, PF.371-Estt.I/74-3074, dated 4-7-1974. He was promoted as a Joint Secretary (BPS-20) and posted in the Finance Division vide Establishment Division Notification No, 39/337/80-E-I, dated 20-11-1983 and he assumed charge of the said post on 21-11-1983 vide Finance Division's Notification No, PF-3(55)-Admn1/83, dated 22-11- 1983. The Establishment Division circulated a gradation list of officers of the Secretariat Group (APUG), as corrected upto 1st November, 1987, vide letter No, 6/3/87-PD-I, dated 10-12-1987. His grievance is that as many as nine officers namely M/s. Mirza Qamar Beg, Ghulam Kadir Dakhan, Syed Muzaffar Ali Shah, Nazar Muhammad A. Shaikh, Rustam Shah Mohmand, Saad Ashraf, Syed Naveed Ali Nasri, Iftikhar Ahmad Khan and Zulfiqar Khan, the respondents Nos, 5 to 13 respectively, who were inducted in the Secretariat Group by way of lateral entry, were placed above him in the gradation list. His further grievance is that two of those officers, namely Muzaffar Ali Shah and Nazar Muhammad Shaikh, the respondents Nos, 7 and 8 respectively, were reverted under section 12-A of the Civil Servants Act, 1973 and were reinstated later, and yet they were placed above him in the gradation list. Yet his further grievance is that two other officers, namely Abdur Rahman and Muhammad Younus Khan the respondents Nos, 3 and 4, who were also reverted under section 12-A of the Civil Servants Act, 1973 and were reinstated later, too were placed above him in the gradation list. He made representation against the gradation list to the Prime Minister of Pakistan on 7-1-1988 but there was no response. Some of the officers of the defunct Civil Service of Pakistan (CSP), who were junior to him, also were placed above him in the gradation list. However, he has not impleaded then' as respondents herein, as, according to him, the question of seniority of the officers of the defunct CSP vis-a-vis other officers of the Secretariat Group, was decided by this Tribunal in Appeals Nos, 124(L)/80 and 116(R)/81 and the matter was sub judice before the Supreme Court in the appeals. He has sought following reliefs:-- "It is, therefore, respectfully prayed that:-
(i) The Gradation list of the Secretariat Group (APUG) circulated by the Establishment Division may please be declared as having been issued without lawful authority and as such inoperative to the extent it is violative of the principles mentioned in paras. 2, 4 and 7;
(ii) Correct seniority may be assigned to the appellant both as Deputy Secretary (BPS-19) and Joint Secretary (BPS-20);
(iii) He may be allowed the consequential benefits of promotion, seniority in the higher grade and arrears of salary, inter alia, on the following grounds, namely--.
(a) xxxxxx xx xx xx
(b) xxxxxx xx xx xx (c)xxxxxx xx xx xx
(iv) His name may also be submitted to the Central Selection Board for consideration for promotion to BPS-21 if name of anyone of respondents 3-13 has been submitted to the Central Selection Board for consideration for promotion to BPS-21;
(v) xx xx xx
3. The appeal has been resisted by only the Federal Government. The private respondents have chosen to remain ex parte. The case put up by the Government is that the appellant had challenged the seniority list issued on 17-8-1981 by way of departmental representation which was withheld and he remained quiet and, therefore, his appeal filed later is time-barred. It is also their case that seniority of the Joint Secretaries was determined in accordance with the provisions of subsection (4) of section 8 of the Civil Servants Act, 1973 and he could not challenge it. They have, further stated that seniority of the officers who were reverted under section 12-A of the Civil Servants Act, 1973 and were reinstated later, was restored by the President under the provisions of section 23 of the Civil Servants Act, 1973 and the appellant did not take exception to that decision and he could not call it in question now.
4. The appellant argued the appeal himself. He reiterated the facts stated in the memo. of appeal which have been mentioned above in nutshell. He contended that respondents Nos, 5 to 13 were appointed through lateral entry on different dates subsequent to his appointment and they were placed below him in the gradation lists published in the years 1975 and 1977. He has next contended that the respondents Nos, 3 and 4, who were appointed through lateral entry earlier than his appointment, were reverted under section 12-A of the Civil Servants Act, 1973 in July 1978 and were reinstated in November, 1979 and were yet placed above him. He stated that he was promoted as a Joint Secretary vide notification dated 20-11-1983. Relying on a decision of this Tribunal in Appeal No, 30(R)/82 Re: Sayed Ali Muqtada Wahidi v. Secretary, Establishment Division and others, reported in 1984 PLC (C.S.) 546, he urged that his seniority should have been reckoned from the date of his original appointment as Deputy Secretary viz. 1-7-1974. He also placed reliance on the instructions of the Establishment Division contained in O.M. dated 4-10-1977, published in the ESTACODE, 1983 edition, at page 157 as S.No,
161. He also referred to the Establishment Division O.M.
No, 2/2/75-ARC, dated 1-2-1975 and 12-4-1976, published in the ESTACODE at pages 766 and 768.
He urged that his seniority position should have been after S.No,
113. He also advanced the argument that the respondents Nos, 3 and 4 who were reverted and were reinstated, should rank junior to him, counting their seniority from the date of their reinstatement in service.
5. The Federal Government was represented by Mr. Muhammad Amir Akbar Khan, Advocate, who was assisted by Mr. Ali Abid, Section Officer, Establishment Division. He cited 1989 SCMR 289 as the authority on the determination of seniority. He next contended that the appellant's seniority as Joint Secretary was correctly placed on the basis of the date of his promotion. He urged that the seniority of the respondents Nos, 3, 4, 7 and 8 was protected under the orders of the President made in exercise of powers under section 23 of the Civil Servants Act, 1973. He referred to a judgment of this Tribunal in Appeal No, 76(R)/83 and a judgment of the Supreme Court in Civil Petition No, 314R/85. According to him, the case of Syed All Muqtada Wahidi, relied upon by the appellant, is distinguishable. He also referred to the instructions of the seniority of lateral entrants in service published in the ESTACODE at page 157.
6. The appellant seeks determination of his seniority amongst the officers who entered service in the Federal Secretariat by lateral entry. The basic principles of induction of lateral entrants into civil cadres are contained in D.O. letter No, 32/9/77-A.I, dated 4th October, 1977, published in the ESTACODE, 1983 edition, at page 157 as S.No,
161. The rules regarding the seniority are laid down as under:--
(i) the date of induction of the officer;
(ii) the grade in which he is initially inducted;
(iii) his seniority in that particular grade in which he is inducted, is fixed with reference to his date of induction; and
(iv) his seniority in his original service to which he belonged becomes irrelevant after he has been inducted into a civil cadre with effect from a particular date.
The appellant's case needs to be examined on the basis of the aforesaid basic principles of seniority of lateral entrants. He and the respondents entered the ecretariat service as Deputy Secretary (BPS-19) by lateral entry on the following dates:-- Appellant Muhammad Rafiq Asghar -- 1-7-1974 Respondents 1 Mr. Abdur Rahman (R-3). -- 22-10-1973 2 Mr. Muhammad Younus Khan (R-4). -- 17-10-1973 3 Mirza Qamar Beg (R-5). -- 2-10-1974 4 Ghulam Kadir Dakhan (R-6). -- 14-11-1974 5 Muzaffar Ali Shah (R-7). -- 5-9-1974 6 Nazar Muhammad Shaikh (R-8). -- 14-2-1975 7 Rustam Shah Mohmand (R-9). -- 10-9-1974 8 Saad Ashraf (R-10). -- 1-2-1975 9 Naveed Ali Nasri (R-11). -- 3-9-1974 10 Iftikhar Ahmad Khan (R-12). -- 21-11-1974 11 Zulfiqar Khan (R-13). -- 30-8-1974 It would appear that only the respondents Nos, 3 and 4 had entered the Secretariat service as Deputy Secretary earlier than the appellant and the rest of the respondents had entered the service, as such, at subsequent stage. It was in that context that the respondents Nos, 5 and 13 were placed below the appellant and the respondents Nos, 3 and 4 were placed above him in the gradation list issued in the year 1976. The position was, however, reversed in respect of the appellant and the respondents Nos, 5 to 13 in the gradation list issued in the year 1981 and he was placed below them, while the respondents Nos, 3 and 4 maintained their original position. The appellant submitted representation but did not find any response. During the course of time, promotions were made to the posts of Joint Secretaries (BPS-20). The appellant was promoted as such on 21-11-1983, while the respondents were promoted on different dates. The respondent No, 3 (Mr. Abdur Rahman) was promoted on 30-5-1982 and the respondent No, 4 was promoted on 1-10- 1983 and they have been placed in the 1987 gradation list of Grade-20 Officers, at S. Nos, 98 and 101.
The dates of promotion to BPS-20 of the respondents Nos, 5 to 13 are indicated in the gradation list of 1987 as under:-- 1 Mirza Qamar Beg (S.No, 114) 11-1987 2 Ghulam Kadir Dakhan (S.No, 115) 21-8-1974 3 Muzaffar Ali Shah (S.No, 116) 16-8-1984 4 Nazar Muhammad Shaikh (S.No, 119) 22-8-1984 5 Rustam Shah Mohmand (S.No, 120) 15-2-1987 6 Saad Ashraf (S. No, 121) 4-8-1983 7 Syed Naveed Ali Nasri (S.No, 122) 25-5-1983 8 Iftikhar Ahmad Khan (S.No, 123) 1-8-1983 9 Zulfiqar Khan (R-124) -- 26-5-1983 Appellant Muhammad Rafiq Asghar (S.No, 125)-- 21-11-1983 It would appear that the respondents Nos, 5 to 13 were promoted on different dates but their names in the gradation list of 1987 are not strictly placed in the chronological order of their promotions. It appears that the appellant was pushed behind in the promotions on account of set- back he suffered in the gradation list issued in the year 1981. It appears from Annexure to the foreword of 1981 gradation list that the earlier instructions/orders regarding seniority of officers inducted by the lateral entry issued under D.O. Letter No, 32/9/77-A.I, dated 4th October, 1977, referred to earlier, were upset by introducing a new policy that all lateral entrants including the Government servants so inducted to be treated as on initial appointment to APUG and their inter se seniority to be in accordance with merit list in the lateral entry examination and their seniority to be reckoned from date of joining, provided that if a person who is lower in order of merit, joins earlier than a person or persons higher in order of merit, the latter would also take seniority from the same date. This policy decision at the Secretariat level was considered by a Bench of this Tribunal in Appeal No, 30(R)/82 filed by Syed Ali Muqtada Wahidi reported in 1984 PLC (C.S.) 546 and it was held that these instructions did not and could not dislodge the earlier position. The decision in that appeal was upheld by the Supreme Court. Of course, we do not with mala fides but we are inclined to agree that the matters settled subscribe to the observations made in the judgment that these instructions were find under appropriate authority were not liable to be brushed aside by fresh orders issued after a number of years. In our opinion, there seems logic behind the decision taken in formulating the gradation list in the year 1981 that there should be a criterion for determination of seniority of the candidates selected at one selection and mere entry of the candidates in the service should not be the sole criterion for determination of the seniority. In the instant case, it would appear that there was gap of months in the joining of the service by the appellant and some of the respondents and the adoption of the criterion laid down in the Foreword pushed the appellant behind in the seniority, for the determination of which the first criterion should be the date of joining the service. Even otherwise, the revised policy should have been prospective and not retrospective in operation. The idea of determination of seniority on merit basis should not have been the decisive factor in the cases which stood settled earlier like that of the appellant and the respondents. Thus, the appellant is entitled to the restoration of seniority from the date of his entry in the Secretariat Group as the Deputy Secretary viz. 1-7-1974. The appellant's promotion as Joint Secretary in BPS-20 would, therefore, be considered on the basis of his seniority reckoned from 1-7- 1974.
7. The contesting respondent i,e,, the Federal Government has raised the uestion of limitation on the ground that the appellant's seniority was revised in e gradation list issued in the year 1981 and the appeal filed in the year 1988 to II in question that seniority list is time-barred. The appellant has stated that he had made departmental representation and that fact has been confirmed in paragraph 3 of the preliminary objections filed by the Government. Of course, it has been stated that the departmental representation filed by the appellant was withheld on 30-8-1982 and reference is made to appendix 'B' to Annexure IV of the memo. of appeal. The appellant has himself filed a copy of 0.M., dated 30-8-1982 whereunder the Finance Division was requested to inform the appellant that his representation of September 1981 was still under consideration and, therefore, his representation to the President was withheld. No further decision was conveyed to the appellant until the publication of the gradation list in November, 1987. The appellant made representation to the Prime Minister of Pakistan on 7-1-1988. He preferred this appeal on 26-4-1988 after awaiting decision on his representation for 90 days. The appeal is, therefore, within time.
8. The appellant has made five prayers in the memo. of appeal out of which four have been reproduced above, while the fifth one, not reproduced, relates to the general relief that may be considered appropriate in the circumstances of the case. The first prayer that the gradation list of the Secretariat Group (APUG) should be declared to have been issued without lawful authority is not maintainable as no such declaration is required to be given by this Tribunal. As regards the second prayer, it has been discussed and held above that the appellant's seniority shall be reckoned from the date he joined the Secretariat service as a Deputy Secretary viz. 1-7-1974 and his promotion to BPS-20 as a Joint Secretary shall be determined on the basis of his seniority as the Deputy Secretary. This relief will partly cover his prayer at clause (iii). As regards the prayer at clause (iv), his case will naturally receive due consideration when it matures for that consideration.
9. The appeal is allowed accordingly.