SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the Tribunal by its judgment dated 12-3-1986 correctly set aside the order of promotion of the appellants by reference to a Seniority List which had been substituted by a fresh one before the Tribunal delivered its judgment.
2. One Shamsuddin Shah and Iftahullah Khan both employed as Principal Appraisers in the Customs Department felt aggrieved by two orders both, dated 9th of August, 1984. By one, the Superintendents, Central Excise/Preventive were promoted to the post of Assistant Collector (B-171 and by the other Principal Appraisers (B-17) were appointed as Assistant Collector (B-17). These orders were expressed to be purely temporary and conferring no right of seniority to those promoted/appointed. The grievance of these two Principal Appraisers (B-17) was that there existed a joint seniority list of Appraisers and Principal Appraisers, prepared and circulated in July, 1976 which was the correctly prepared list and that list should have governed their selection and promotion. They also felt that in excluding them from consideration for promotion/anointment and in preferring the respondents in service appeals before the Tribunal. (three of whom are now the appellants, who were admittedly junior to them in the combined list), an illegality had been committed.
3. The appeals before the Service Tribunal were contested. The Tribunal concerned itself with the order, dated 9th of August, 1984 appointing the Principal Appraisers, to which category the two appellants before it belonged, as Assistant Collector. The findings recorded by the Tribunal went far beyond the controversy raised in the two appeals before it. The following decisions were given by the Tribunal:-- "(i) All this goes to show that there was a conscious effort to benefit these two respondents only with all possible variations that could be brought to bear in this regard. Under the normal circumstances, it can be easily established that directly recruited Appraisers could not be promoted as Principal Appraiser before minimum of 12 to 14 years of service as Appraiser. Whereas in the case of Respondents 6 and 7 their promotion as Principal Appraisers although ordered in 1981 stood retrospectively effective from 16th May, 1978 i.e, within a period of five years only even if we consider their promotion as Appraiser from 1973 as valid. How far can this be considered logical and fair when viewed in the context of the overall period for the promotion of Appraiser to the post of Principal Appraiser as stated earlier. It, therefore, only stands to reason that this manipulation of orders to benefit respondents 6 and 7 particularly in the garb of helping the ministerial staff almost overnight does not stand the test of justice and fairplay. They must have their promotions as decided vide Letter No, 1(2)-R 3/68(ACE-H), dated 27th January, 1973 but not by violating the basic policy.
The retrospective promotion order of Respondents 6 and 7 to the post of Principal Appraiser as ordered vide letter dated 25-3-1981 is a clear infringement of the commitment given by the Respondent-Department to the Sindh High Court. Thus it is not difficult to understand why Respondents 6 and 7 were given retrospective seniority as Principal Appraisers dating back to 1978.
The considerations governing the antedate are not understood except in the light of the fact that the idea was only to make Respondents 6 and 7 senior to the appellant. This clearly shows mala fide intention and, therefore, must be struck down severely.
(iii) No clear line was laid down regarding the posting of Appraisers from Custom House, Karachi to the authorised posts of Custom Valuation. This matter actually came to the forefront only when a Writ Petition No,221 of 1971 was filed in the Sindh High Court who were pleased to order Collector of Customs, Karachi to issue a final seniority host which was done vide Letter No, 837-42 of 1977-Estt., dated 30-5-1979. Therefore, this seniority list should be taken as the only authorised document in this regard.
(iv) Further, relaxation and exemptions given in respect of Respondents 6 and 7 are evidently a negation of this considered policy and, therefore, have created unbounded confusion which has resulted in this litigation. We, therefore, strongly feel that these letters be disregarded and cancelled. The promotion of Respondents 6 and 7 be regulated according to the above-quoted policy letter with all its implications. Accordingly Respondents 6 and 7 should be confirmed only from the date they have qualified the promotional exemination i.e, in 1976 and not from their initial appointment i.e, in 1973. In fact we do not wish to create another confusion to disallow their initial appointment in 1973 which, according to this policy letter, will not be held correct.
(v) We do not consider it appropriate to give ante-date seniority to Respondents 6 and 7 on their promotion to the posts of Principal Appraiser vide CBR Notification No, 50-ACE. I of 1981, dated 25th March, 1981. This is a period which relates to the matter being sub judice in the Sindh High Court when Writ Petition No, 221 of 1977 was filed by one of the Appraisers. The promotion of Respondents 6 and 7 should be considered from the date they actually started working as Principal Appraiser which in this case can, at best, be the date after the decision of the Writ Petition No, 221 of 1977 i.e, 30-5-1979.
(vi) It was stated at the bar that the Central Board of Revenue is preparing another seniority list which is likely to be issued in the near future. We direct that before issue of this new seniority list, the following steps must be taken into consideration:-
(a) The vacancies of direct recruits versus promotees be calculated according to the laid down percentage.
(b) All promotions must be strictly made according to these calculations.
(c) No one from either category should be confirmed against the authorised vacancies of another category.
(d) Wherever there is any deviation from the seniority list issued by the Collector, Custom House, Karachi i.e, issued on 30-5-1979, a thorough probe must be made before the final decision is taken to change the entries as shown in that seniority list.
(vii) As far as this appeal is concerned, we declare that the appellant, in the cadre of Appraisers and Principal Appriasers, is senior to respondents 3 to 7, and is also senior to respondents 8 to 10 in the cadre of Principal Appraisers/Superintendents. Consequently, we direct that the appellant be considered for promotion to the post of Assistant Collector from the date respondents 3 to 10 were promoted as such, and if approved for promotion, he be placed senior to these respondents in the cadre of Assistant Collectors and shall also be entitled to consequential benefits."
4.The arguments addressed in appeals before us had as wide a range as was that of the Tribunal's judgment starting from the very commencement of the career of the contestants and scrutiny of all the stages of their promotion and advancement. We had to call for the record of the Departmental Promotion Committee which led to the impugned order. It appears that the Tribunal had not examined it at all before setting aside the recommendations of the Departmental Promotion Committee. The record of the Departmental Promotion Committee was made available to the parties for inspection and for further submission of written arguments, if any, in the light of those records, and the parties have submitted their written arguments.
5. There are three features of the case of the parties which need very clear comprehension before any determination of their claims can be made. The first is that there were different categories of Officers who had to be promoted as Assistant Collector. The promotion was not confined to the Principal Appraisers or Appraisers or Superintendents as such. This factor by itself would have created no complication but for a Presidential Order whereby the posts of Principal Appraiser in Grade-16 and that of Appraisers in Grade-13 were both placed in Grade-17 and Grade-17 happens to be also the Grade of Assistant Collector. Ordinarily, it will not be a case of promotion where an Officer is placed in Grade-17 as Assistant Collector from another post of Appraiser or Principal Appraiser in Grade-17. It can at best be called a case of transfer from one post or from one cadre to the other. However, at a later date, it was felt that more had been granted than was necessary and Grade-17 was made personal to the officers who had benefited from the Presidential Order and the original disparity was somewhat restored.
6. The second feature of the case is that the rules of promotion prescribed that posts in Grade-17 were to be filled to the extent of 75% by competitive examination and 25% through promotion.
Therefore, what was accomplished by upgradation of the posts of Appraiser and Principal Appraiser from Grade-13 and Grade-16 respectively to Grade-17 protecting the Grade as personal to the civil servant, could be of no avail for claiming the post of Assistant Collector by transfer or otherwise.
7. The third feature, and this we consider to be the most important, which was totally ignored by the Tribunal and has an important bearing on the case, is the allocation of quota for promotion to each functional unit within the Customs Department in proportion to its cadre strength. This formula or policy of promotion was not even noticed by the parties or the Tribunal though it was adhered to and made the basis of selection by Departmental Promotion Committee and had the approval of the Establishment Division. This policy is reflected in the proceedings of the Selection Board dated 1-11-1983 as hereunder:-- "The Committee was informed that 14 posts of Assistant Collectors had fallen vacant against the promotion quota on account of retirements promotions and creation of new posts. The Committee was informed that promotion/induction in the Customs and Excise Group was to be made from amongst Superintendent (CE)/Principal Appraisers and Superintendent (Preventive) in the ratio of 4:2:1 respectively, determined on the basis of the sanctioned strength of each cadre. Accordingly, for promotions against 14 posts, eight Superintendents (CE), four Principal Appraisers and two Superintendents (Prey.) were to be recommended for promotion.
' The Committee considered the ACRs of the Superintendents (CE)/Superintendent (Prey.) and Principal Appraisers in order of seniority, pertaining to the last five years and recommended the following for promotion/induction:-- "
For purposes of giving effect to this Policy, separate seniority lists were utilised of--
(a) Superintendents, Central Excise and Land Customs, Karachi/Lahore/Hyderabad/Quetta/Rawalpindi/Peshawar, position on 31-5-1983;
(b) Seniority list of Principal Appraisers (B-17) with their date of promotion in B-16, position on 30- 10-1983;
(c) Seniority list of Superintendents of Customs (Preventive) BPS-16 Customs House, Karachi;
8. Another meeting of the Departmental Promotion Committee was held on 20-6-1984 and the decision taken therein was as follows:-- "The Committee was informed that 16 posts of Assistant Collectors had fallen vacant against the promotion quota on account of retirements, promotions and creation of new posts. It was indicated that promotion/ induction against the said posts was to be made from amongst the eligible officials of the five Wings of Customs and Central Excise Department, inter alia; Superintendent (CE), Principal Appraiser (Appraisement), Principal Appraiser (Valuation) and Superintendent (Preventive) and Superintendent (Intelligence) in the ratio of 4:2:1:1:1 respectively, determined on the basis of sanctioned strength of each cadre.
' The Committee was informed that no Superintendent Intelligence was yet available for promotion.
It was, therefore, decided that the available 16 promotion quota posts of Assistant Collectors may be divided among the Superintendents (Central Excise), Principal Appraiser (Appraisement) and Principal Appraiser (Valuation) and Superintendent (Preventive) in the ratio of 8:4:2:2 respectively."
' And for the purposes of giving effect to this policy, separate seniority lists were utilized of--
(a) Superintendents, Customs and Central Excise Karachi/Lahore/ Hyderabad/Quetta/Rawalpindi/Peshawar, position on 25-5-1984;
(b) Principal Appraisers (BPS-17), with their Date of Promotion in BPS-16, position on 25-5-1984;
(c) Superintendents of Customs (Preventive) Grade-16 Custom House, Karachi; and - (d) Principal Appraisers promoted in the Office of the Controller of Customs Valuation Department.
9. In making representations to the departmental authorities as well as in filing the Service appeals before the Service Tribunal, none of the respondents had taken note of the basis on which the promotions had been recommended by the Departmental Promotion Committee. They had not challenged the criteria adopted by the Departmental Promotion Committee. The Service Tribunal has also not noticed it. In a very lengthy note submitted by the respondents after the record of the Departmental Promotion Committee was made available to the Court, the respondents have contended that a high powered Committee of the concerned Ministries had been established for the purpose of rationalizing the criteria for promotion. It made certain recommendations. These recommendations were not formally approved by the competent authority. Notwithstanding the lack of approval, the Departmental Promotion Committee adopted and acted on it.
10. Another objection taken to the recommendations of the Departmental Promotion Committee was that even in adopting the standard which, it had in fact adopted, it had not faithfully observed it inasmuch as Iftahullah Khan and Shamsuddin Shah were not at all considered and Mr. M.W.
Warsi was considered against Intelligence Wing and not against Valuation Wing to which he belonged. According to the note submitted, the only list which could be adopted for deciding upon the eligibility and the suitability of the officers to be promoted was the combined seniority list of the Appraisers and Principal Appraisers which held good upto 30th May, 1979.
11. So far as the establishment of the high powered Committee, its recommendations and its observance by the three concerned departments; namely, Central Board of Revenue, the Finance Division and the Establishment Division is concerned, it is established on the record. It was a fair and equitable formula. As it concerned the promotion and not the vested rights of the Principal Appraisers, they could not raise legitimately any objection to the adoption of such a formula as was done. In any case it has not been objected to either before the Tribunal or earlier before the Department. It will not be possible to entertain the objections to the formula at this stage and on such grounds of fact. The record further establishes the formula has been in vogue and in practice since before' 1984.
12. The service particulars of the parties as noted on 25-5-1984 by the Departmental Selection Committee and relevant for our purposes are as hereunder:-- Name Date of appointment in BPS- 16/Principal Appraiser.
(1) Syed Saleem Akhtar. 26-5- 1976
(2) Mr. Rashid-uz-Zaman. 10-9- 1976
(3) Mr. Zia-ul-Haq Awan. 16-12- 1978
(4) Mr. Zafar Farooq. 16-5- 1978
(5) Mr. Shamsuddin Shah. 18-3- 1979
(6) Syed Ahmedullah. 16-5- 1978
(7) Mr. Muhammad Wasim Warsi.16-5- 1978
(8) Mr. Iftahullah Khan. 18-3-1979
13. The seniority list of the Principal Appraisers as on 25-5-1984 as put up before the Departmental Promotion Committee at serial No, ,14 contained the name of Shamsuddin. His name was before the Departmental Promotion Committee but he was junior in the list, according to the dates reproduced in the Service particulars and was neither superseded nor considered. Syed Ahmedullah Shah and Muhammad Wasim Warsi were the only two persons in the category of Principal Appraisers in the Office of the Controller of Customs Valuation Department. These two officers from that list and four others from another list were promoted and the contesting respondents being junior to them in those lists cannot make a grievance of their having not been promoted.
14. The combined seniority list of the appraisers and the Principal Appraisers and their positions in it loses all its importance, where promotion is not to be made in accordance with that list but on a different principle namely, of five different Wings.
15. An examination of the judgment of the Tribunal shows numerous defects in it. Firstly, the only proceedings challenged Wore the Service Tribunal were those of the Departmental Promotion Committee. The Tribunal did not at all examine the record of the Departmental Promotion Committee nor did it inform itself or find fault with the policy and the principle adopted by the Departmental Promotion Committee in making the recommendations. Secondly, the Tribunal set aside a promotion order of 1981 whereby those in service were given seniority on promotion from a back date, the promotion order made in 1981 ante-dating their promotion to 1978. This order was not under challenge either before the Departmental authorities or Service Tribunal. Thirdly, the Tribunal adopted too readily a principal of justice and fairplay and did not care to look into the law applicable to the case as if justice and fairplay transcend and control the law as such. Fourthly, the Tribunal went so far in retrospect as to create doubt even over the very appointment of some of the subordinate functionaries of the Central Board of Revenue when it took place in 1973, though it exercised admirable restraint in not upsetting it. Fifthly, the Tribunal sanctified the seniority list of 30th May, 1979 as if it was to govern all future promotions etc. Irrespective of its substitution by new seniority list or by new principle of promotion. Sixthly, the Tribunal proceeded to lay down policy directives as to how the Central Board of Revenue should conduct its affairs in future with regard to recruitment, promotion and preparation of seniority lists. This would have been possible, where the backing of the relevant law and not the spirit of the law would have been made the basis for such directions.
16. In the circumstances and for the reasons given, all the five appeals are accepted. The judgment of the Service Tribunal is set aside and both the service appeals filed by the respondents Shamsuddin Shah and Iftahullah Khan before the Service Tribunal shall stand dismissed. No order as to costs.