SALAHUDDIN CHAUDHRI (MEMBER).--The appellant, Muhammad Zakaria Khan, an Assistant in the Establishment Division, has preferred this appeal to contest his seniority inter se as fixed by the said Division. His claim is that he is entitled to seniority from 14-9-1976, the day he joined the erstwhile Ministry of Agrarian Management and not from 1-1-1978, the date on which he was absorbed in the Establishment Division. He further claims his seniority over respondents Nos, 2 to 24.
2. The background facts which have given rise to this appeal are that the appellant joined the erstwhile Ministry of Agrarian Management on 14-9-1976 as an Assistant against posts advertised in the press. This appointment was temporary but regular and not ad hoc. Towards the end of 1977 when it was decided to wind up the said Ministry, the appellant was absorbed in the same capacity and in the same grade in the Establishment Division where he joined on 1-1-1978 without any break in service. Earlier, during 1969 to 1973, respondents Nos, 2 to 16 had been appointed direct and respondents Nos, 17 to 24 were promoted as Assistants against direct quota posts pending recruitment by the Central Public Service Commission. They were thus replaceable by the Central Public Service Commission's nominees. Here it needs mention that prior to the promulgation of Federal Public Service Commission Act, 1973, direct recruitment to the posts of Assistants was required to be made through the Central Public Service Commission. But after coming into force of the Federal Public Service Commission Act, 1973, the recruitment to the said posts was taken out of the purview of the Federal- Public Service Commission. From then on these appointments were to be made by the Departmental Selection Committee as provided by the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. However, for filling in the posts held by respondents Nos, 2 to 24 no recruitment was made through the Central Public Service Commission by 1973 till the Federal Public Service Commission Act came into force. The matter received attention towards the end of 1973 when, under O.M. No, 1/8/83-ARC, dated the 20th of November, 1973, (page 121 of 1983 edition of Estacode) instructions were issued laying down the conditions as well as the procedure for regularization of such appointments. The relevant portion of the said O.M. reads as under:- Initial recruitmentto posts in Grades 15 and below, therefore, will be made in future by the Ministries/Divisions themselves through Departmental Promotion Committees in accordance with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the administrative instructions contained in Cabinet Secretary's circular D.O. letter No, 1/9/73-F-IV., dated the 22nd October, 1973. As for Government servants who are already serving in Grade-15 and below on temporary/ad hoc basis and who would have ordinarily been replaced by nominees of F.P.S.C. their appointment would require to be regularised before they are considered eligible for confirmation.
The great majority of staff in this category is ministerial staff in Ministries/Divisions and their Attached Departments who were recruited against direct recruitment quota independently of the Commission or those who were permanent in lower grades and were promoted in excess of the promotion quota against vacancies reserved for direct recruitment. It has been decided that these ad hoc/temporary appointees in Grades-15 and below may be considered eligible for confirmation provided they possess the prescribed minimum educational and other qualifications prescribed for the post and have put in minimum of five years satisfactory service, as on 31st December, 1973, in respective grades. Their suitability for retention in service on regular basis and their fitness for confirmation will be determined by Departmental Committees in the light of their A.C.Rs, and service record."
It, however, appears that practical steps to carry out the above instructions were not taken by the Ministries and the Divisions concerned. In view of that, another Office Memorandum dated the 5th of December, 1983 was issued by the Establishment Division. For the purpose of convenience, the relevant extracts are reproduced below:-- "SUBJECT:--Regularization of purely temporary/Ad hoc Ministerial staff appointed/Promoted to different posts prior to 20th October, 1973.
' The undersigned is directed to refer to paragraph 2 of the Establishment Division's OM. No, 1/8/73- ARC, dated the 20th November, 1973, wherein methodology for regularization of services of these purely temporary/ad hoc employees and persons promoted in excess of promotion quota, was laid down, who were appointed/promoted as such on a date later than 31-12-1968.
2. The Ministries/Divisions unfortunately did not observe those instructions with the result that the irregular appointees are still continuing despite lapse of over nine years. With a view to considering regularization of services of remaining irregular appointees, necessary data was collected vide this Division's O.M. No, 4/4/81-F.II, dated the 24th March, 1983. After considering all the pros and cons it has been decided that the condition of five years service in a grade (post) as on 31-12-1973, prescribed in para. 2 of the 0.M. dated 20th November, 1973, may be extended to cover all those purely temporary/ad hoc ministerial employees who joined a particular office on a date earlier than 20-10-1973 i,e, the date on which the civil servants (Appointment, Promotion and Transfer)
Rules, 1973 were notified. Thus the ministerial employees possessing five years continuous service in a grade (post) in a particular office as on 20-10-1978 may be considered for regularization by the respective DPC/DSC on the basis of their post service record.
' In accordance with the above quoted instructions the cases of respondents Nos, 2 to 16 were considered by the Departmental Promotion Committee/Departmental Selection Committee. Since they were found fit for retention, the competent authority approved the regularisation of their appointments and an order to that effect was issued on 5-2-1985. It reads:-- "The appointment of the following Assistants is regularised in terms of the Establishment Division O.M. No, 4/4/81-R-6, dated 5th December, 1983."
No orders for the regularization of respondents Nos, 17 to 24 were, however, issued because the Establishment Division was of the view that these appointments fell within the purview of section 12-A of the Civil Servants Act, 1973, from the operation of which cases of civil servants in grades 1 to 15 had been excluded.
3. On 9-2-1986 a seniority list of Assistants (BPS-11 to BPS-14) as on 1-1-1986 was issued inviting objections, if any, from the officials concerned. In this seniority list the appellant's seniority was reckoned from 1-1-1978, the date he was absorbed in the Establishment Division and was also shown junior to respondents Nos, 2 to 24. On 2-2-1986 he submitted his objections and claimed seniority from 14-9-1976, the date on which he had joined the Ministry of Agrarian Management.
The appellant also claimed seniority over respondents Nos,2 to 24. When his claims were turned down, the appellant submitted an appeal to the next higher authority on 25-5-1986. Receiving no reply within 90 days, he preferred the present appeal on 22-9-1986.
4. The respondent-Establishment Division and also respondent No, 3, who appeared in person, have raised the preliminary objection regarding limitation. It was urged that in the provisional seniority list circulated in 1979 and 1980 the appellant's seniority inter se with the other respondents was the same as shown in 1986 list. No objection having been raised against the seniority fixed in 1979 or 1980, contended the representative of the Establishment Division, the appellant cannot object to that seniority now. They maintained that the cause of action having arisen in 1979 the departmental representation as well as the appeal to this Tribunal filed in 1986 was hopelessly barred by time.
5. We have considered this objection but find that it lacks force. The lists circulated in 1979 and 1980 were admittedly provisional. It is also not in dispute that the cases of respondents Nos, 2 to 24 still had to be processed with a view to deciding the question of their regularization. It was not known at that time as to who was going to be retained and from what date. The issue had not been crystalized. Therefore, the lists circulated in 1979 could not be said to have given any cause of action. It was only after the cases for regularization were processed and it had been decided to retain the respondents in service and to allow them seniority with reference to the dates of their appointments/ promotions as Assistants that the issue assumed a definite shape. It was only then that the appellant came to know where the Respondent-department was placing his name in the seniority list. Therefore, the cause of action actually arose only thereafter. So, when his objections to the seniority list of 1986 were rejected, the appellant sought his departmental remedy. Since the representation remained pending he came in appeal within 120 days of the filing of the representation. In the light of these facts we are of the view that the appellant's appeal is within time. The objection raised must fail.
6. The first issue which requires decision is whether the appellant's service as Assistant from 14-9- 1976 to 31-12-1977 in the Ministry of Agrarian Management is reckonable towards seniority as Assistant or not. The appellant's case is that his appointment in the Ministry of Agrarian Management was on regular basis. The post was duly advertised and he was selected. Also, the post was likely to continue. When the Ministry of Agrarian Management was disbanded, it was decided by the respondent-department to absorb him in the Establishment Division. Thus he continued to hold the post of Assistant from 14-9-1976 without any break. It was contended that on the principles of seniority laid down under section 8 of the Civil Servants Act, 1973, it is the date of appointment to the grade with reference to which seniority is required to be determined and in the instant case this date was 14-9-1976 and not 1-1-1978. Reliance was also placed on the Establishment Division's instructions contained in 0.M.. dated 6-8-1960 under which the staff declared surplus in any Ministry or attached department is allowed to count for seniority purposes the service rendered by them prior to their being declared surplus. For these reasons it was submitted that the respondents were clearly wrong in completely ignoring the period of service rendered by the appellant in the erstwhile Ministry of Agrarian Management. The stand taken by the respondents on this issue is that the appellant was holding a temporary post and when these posts were abolished, he ceased to have any right to be absorbed in another post and if the Government had accommodated him he had acquired no right to count for seniority purposes the service rendered by him in the abolished post.
7. We have considered the arguments advanced from both the sides. The fact of the matter is that the appellant's appointment in the erstwhile Ministry of Agrarian Management was regular and not ad hoc. Later, when the post was abolished the Government absorbed him against an equivalent post which meant hat the appellant continued to render service continuously in that grade from 4- 9-1976. Therefore, it would neither be right nor fair to completely ignore the service rendered by the appellant in the erstwhile Ministry of Agrarian Management and to treat him a fresh appointee in the Establishment Division with effect from 1-1-1978. The Office Memorandum dated 6-8-1960 which has been relied upon by the appellant clearly lays down the principles for determining the seniority of the surplus staff. It reads:-- "The undersigned is directed to say that the question of the seniority of the staff rendered surplus as a result of the re-organisation of the Central Secretariat and its Attached Departments has been under consideration in the Establishment Division. It has now been decided that the surplus ministerial staff in the Central Secretariat, and its attached Departments who were holding posts on a permanent or provisional permanent basis and those who were temporary, but were eligible for permanent retention under the rules, should be allowed to count such of their past service towards seniority as is allowed to be counted for this purpose under the normal rules, if they were transferred to the Central Secretariat/Attached Department in the same grade in which they were holding permanent appointment or were eligible for permanent retention.
Since the respondents have not denied that the above instructions still hold the field, we cannot pursuade ourselves to understand why the principle laid down therein should not be applied to the appellant's case. Our attention has also been drawn to the case of one Altaf Hussain, Assistant, who had joined the Ministry of Agrarian Management in 1976. On disbandment of that Ministry he was absorbed in the Economic Affairs Division with effect from 24-12-1977 and the establishment Division allowed him seniority with effect from 4-8-1976, the date when he was regularly appointed as Assistant in the Ministry of Agrarian Management. The appellant's case is exactly similar to that of Altaf Hussain and, therefore, there is no reason why he should not receive the same treatment in the matter of seniority. We, therefore, direct that the appellant be allowed seniority in the cadre of Assistants from 14-9-1976.
8. The next issue in dispute is whether respondents Nos, 2 to 24 are or are not senior to the appellant. The learned counsel for the appellant has contended that the said respondents had been appointed against the vacancies reserved for direct recruits and thus their appointments were irregular. Some of them i,e, respondents Nos, 2. to 16 were finally regularized on 5-2-1985. It was argued that this is the date on which these Assistants could be treated as having been regularly appointed. It was urged that, on the other hand, the appellant had been regularly appointed with effect from 14-9-1976 and, therefore, on the basis of the principle of continuous appointment to the grade, the appellant is clearly senior to these respondents. As far as respondents Nos, 17 to 24 are concerned, it was claimed that they were never regularised and, therefore, they too necessarily have to remain junior to the appellant who has held the appointment on regular basis. The respondent-Establishment Division as well as the private respondents who have appeared, contend that no doubt the regularization order in the case of respondents Nos, 2 to 16 was issued on 5-2-1985 and the date from which regularisation was to become effective is not mentioned in the order itself but the conduct of the respondents makes it clear that the regularization was to be given effect from the respective dates on which they were originally appointed to the posts of Assistants. It was submitted that these Assistants had continued to hold these posts from 1969 or later years but somehow, and for no fault of theirs, the case for regularisation could not be taken up for a long time. When finally it was processed, the relevant D.P.C. found, on the basis of their A.C.Rs, that they had rendered satisfactory service and were fit to be retained in service. Accordingly, the regularisation order though formally issued on 5- 2-1985 yet was given effect from the dates of their respective original appointments. In view of that they were rightly allowed to count seniority from those dates and consequently placed senior to the appellant who at best had come to the Assistants cadre on 14-9-1976. As regards respondents Nos, 17 to 24, the representative of the Establishment Division submitted that no formal order of regularisation in their cases was necessary because whatever the irregularity or infirmity involved in their appointments, it stood condoned by virtue of the decision to exempt the cases of Grade-1 to Grade-15 from the purview of section 12-A of the Civil Servants Act, 1973. In consequence respondents Nos, 17 to 24 also stood regularly appointed with effect from the respective dates from which they were originally appointed. In view of that, it was stated, they too were placed senior to the appellant because they had been appointed to the grade earlier than the appellant's regular appointment to the same grade.
9. We have carefully examined the issue in dispute and the pleas advanced by the parties. We will first deal with the appellant's contention that the order of regularisation having been passed on 5- 2-1985 in the case of respondents Nos, 2 to 16 and making no mention that this will have any retrospective effect, the regularisation can only be effective from the date of the order i,e, 5-2-1985 and if not from 5-2-1985, the dates of regularisation in any case cannot be earlier than the expiry of five years from the dates of appointment in view of the instructions contained in the O.M., dated 20-11-1973 and O.M., dated 5-12-1983. In our view, the appellant is not placing a correct interpretation on the said instructions. The period of five years has been mentioned in those office memoranda in connection with confirmation of the officials. We do not find any instructions which specifically lay down that if retained, the employees concerned shall necessarily be regularised with effect from a date on the expiry of five years from the dates of their respective appointments.
If five years' period has been mentioned in the said office memoranda it is mainly for the purpose of ensuring that the officials concerned have rendered at least five years continuous satisfactory service. If they have, then they become eligible for retention in service on permanent basis. In para. 3 on the O.M. dated 5-12-1983, it was clearly laid down that subject to the fulfilment of other requirements, regularisation in a grade/post will take effect from the date of availability of regular post against which the employee could be adjusted. The learned counsel for the appellant, however, relies heavily on the O.M., dated 27-12-1983, issued to further clarify the instructions of 5- 12-1983, in para. 2 of which it is provided that regularisation of these employees who could not be regularised earlier would be from a date subsequent to completion of five years service. The departmental representative has taken the plea that it is a wrongly worded circular and does not correctly reflect the true meaning of the contents of circular of 5-12-1983. We agree with him. A plain reading of the O.M., dated 27-12-1983 shows that its contents are contradictory. In para. 1 it is laid down that regularisation could be done from a date earlier than the expiration of five years if a regular post was available while para. 2 provides for regularisation with effect from a date after the expiry of five years. In view of this, we have to revert to the earlier O.M. of 5-12-1983 which was being clarified through that of 27-12-1983. The earlier circular, as already mentioned, provided for regularisation with effect from a date from which regular vacancy was available. Therefore, the instructions of 27-12-1983 which are not only contradictory in nature but are also violative of the provisions of the original O.M., dated 5-12-1983 have to be ignored. The only question now left to be answered is: from what date were these vacancies against which respondents Nos,2 to 16 were irregularly appointed available? The obvious answer is that these were available at least on the date, if not earlier, on which the said respondents were appointed. Since these vacancies were required to be filled in through Central Public Service Commission, these surely were regular vacancies. In view of that we are firmly of the view that the instructions contained in the O.M. on the subject were correctly followed in regularising the respondents with effect from the dates of their respective appointments. If the date 5-2-1985 i,e, the date of order is adopted as the date of regularisation it would mean that the entire service prior to the date of regularisation will remain out of reckoning for the purposes of seniority and this would be totally unfair. Normally the decision about their retention should have been taken even prior to 1973 but somehow it was delayed for years. For this delay those Assistants cannot be made to suffer particularly when they were ultimately found to have rendered satisfactory service throughout these years. Therefore, the respondent Division was right in counting the seniority of the said Assistant, with reference to the dates of their original regular though temporary appointments/promotions. No doubt, the order of regularisation dated 5-2-1985 suffers from infirmity inasmuch as it does not specify the date from which the Assistants concerned were to stand regularised. But by the conduct of the respondent Division in implementing the order of regularisation the date of regularisation stands duly specified.
On these facts we do not think the appellant's claim of seniority over these respondents is justified.
10. We now come to the remaining respondents Nos, 17 to 24. It is not in dispute that they had been temporarily appointed/promoted against direct recruitment quota posts between 1972 and 5-7- 1977 and their appointments required to be regularised. These irregular appointments fell under the purview of section 12-A of the Civil Servants Act, 1973, and their cases were to be reviewed. But later officials in Grade-1 to Grade-15 were exempted from the purview of the said section. Following that exemption, the respondent/Establishment Division rightly took the view that the appointments which suffered from one or the other irregularity stood regularised. This decision covered the cases of the respondents named above and, therefore, in our view, no separate order had necessarily to be passed in their cases. Thus the respondents Nos,17 to 24 will be deemed to have been regularised from the dates of their original respective appointments and they will take their seniority with reference to those dates.
11. In the result we direct that the seniority inter se of the appellant and respondents Nos, 2 to 24 shall be determined with reference to the dates of their original appointments/promotions to the posts of Assistants. In the case of the appellant, this date will be 14-9-1976 and not 1-1-1978. Since the appellant was directly appointed in the year 1976, those who were promoted to the grade of Assistants in 1976 shall rank senior to the appellant in accordance with the general principles of seniority. The appeal succeeds to the extent indicated above.
12.No order as to costs.
13.Parties to be informed accordingly.