' SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Maqbool Ahmad Khan has preferred this appeal for determination of his seniority amongst Superintendents in the Directorate of Immigration and Passports.
2. The case of the appellant is that he joined service as a Lower Division Clerk in the Ministry of Interior on 10-9-1955. He was appointed as a Stenotypist in the same Ministry on 16-10-1959. He was transferred to the Directorate of Immigration and Passports in the same capacity on 1-10-1961. He was appointed as Upper Division Clerk/Cashier at the Regional Passport Office, Hyderabad with effect from 19-5-1964. He was appointed to officiate as Superintendent with effect from 26-4-1973 when he superseded the respondents Nos.4 to 12, who were senior to him in the grade of Upper Division Clerks (UDC). In the seniority list circulated in the year 1981, the names of the respondents Nos.4 to 12 were placed above him in the grade of Superintendents although they were promoted as Superintendents after his promotion. He made representation on 25-1-1982 for placing his name in the seniority list over and above the names of the respondents Nos. 4 to 12. While awaiting orders on his representation, he was compulsorily retired from service on completion of twenty-five years service with effect from 1-8-1980. He preferred appeal No, 17 (R)/83 before this Tribunal. The Tribunal set aside the order of his compulsory retirement and made order for his reinstatement in service with all consequential benefits, by judgment dated 29-7-1984. He resumed his duty as a Superintendent in the Regional Passport Office, Rawalpindi on 22-9-1984. He made representation on 25-1-1985 for determination of his seniority. A fresh but tentative list of Superintendents of Regional Passport Offices was circulated on 30-11-1986. The appellant was informed vide Memo No, 10-2-1986-Admn (K), dated 20-1-1987 that his representation dated 17-3-1985 was not found tenable. He then filed this appeal on 21-2-1987.
3. The appeal has been resisted. Written objections have been filed by the Government and its functionaries, the respondents Nos.1, 2 and 3; and also by the respondents Nos. 4 to 10 and 12 to 14.
The respondent No,11 has not filed written objections.
4. The facts stated in the written objections filed by the Government that the question of seniority of the Superintendents in the Regional Passport Offices was considered at the meeting of the Departmental Promotion Committee (DPC) held on 20-1-1981. The Committee took the following decision recorded in the minutes of the meeting:-- "Several senior Upper Division Clerks of Regional Passport Office, Lahore against whom there were certain allegations were superseded by their juniors during 1973-74. They were M/s. Masood Ahmed, Riaz Ahmed, Tailor Pervez, Ghulam Mohiuddin and Muhammad Saeed Sheikh.
Departmental enquiries were held against them. After conclusion of Departmental enquiries the question of their promotion and reversion of their juniors was taken up but it was decided that junior persons already promoted should not be reverted to make room for the seniors and that the senior persons be promoted against future vacancies. The Committee was of the view that as there was no bar against their promotion during the pendency of departmental proceedings and as they were finally exonerated of the charges against them, their supersession by their juniors was not justified. The Committee, therefore, decided that they should be allowed presumptive senioriy from the dates their immediate juniors were promoted as Superintendents. They will, however, not be allowed any financial benefit for the intervening period."
' It is further stated that the matter was also considered by the Departmental Promotion Committee at its meeting held on 21-9-1981 and the following decision was taken:- "The Committee, however, examined the position of M/s. Atta Muhammad and Shamshad Ali Khan, who had been taken as Supdt. From other departments as direct recruits and their position has been challenged on this ground by certain Supdts. Prior to his appointment, Mr. Atta Muhammad was employed as Family Planning Officer and Mr. Shamshad All Khan was an Assistant in the Ministry of Interior.
' Under Rule 10 of the existing Recruitment Rules the following provision exists for appointment to the post of Superintendnet by transfer from other Departments:-- "If no suitable person is available for appointment to the post of UDC/Superintendent by promotion against a clear vacancy recruitment by transfer shall be made from amongst the persons holding equivalent posts or lower posts in senior capacity in other departments of the Central Governments on regular basis".
' Since M/s. Atta Muhammad and Shamshad All Khan had been taken as Superintendent (B-10) on transfer from other Departments where they were employed in higher grades, the Committee decided that they should continue to count seniority in the grade of Superintendent from the dates of their appointment.
(ii) Notwithstanding anything stated at para. 14(i) above, the appointments of M/s. Shamshad Ali Khan and Ch. Atta Muhammad having been made between the period from 1-1-1972 to 5-7-1977 were subject to review under section 12(A) of the Civil Servants Act, 1973. However, later on the appointments in B-1 to 15 during the aforementioned period were exempted from the purview of review by the Minister for establishment. Thus all appointments in B-1 to 15 made between the period 1-1-1972 to 5-7-1977 in contravention of rules and later on exempted from purview of review by competent authority, were declared as regular by Estt. Division in consultation with Justice Division. Messrs Shamshad All Khan and Ch. Atta Muhammad who were appointed in B-M on 16-2- 1973 and 22-2-1973 respectively not strictly in accordance with the rules will be treated to have been appointed on regular basis."
' It is also stated that the appellant's representation received in the Directorate on 2-2-1982 was considered alongwith representations of some other officials by the DPC at its meeting held on 16- 5-1982 and the following decisions were taken: "As regards the representations of M/s. Izhar Abbasi, S.M.Z. Faridi, Muhammad Ramzan and M.N.
Ansari, they have objected to the seniority allowed to M/s. Atta Muhammad and Shamshad Ali Khan, who were appointed as Superintendent in the Regional Passport Office, Lahore in 1973 from other offices, which was not in accordance with the Recruitment Rules. They have also objected to the grant of presumptive seniority to the following Superintendents who were senior to them as Upper Division Clerks but were passed over as there were certain allegations against these senior Upper Division Clerks at that time:--
1. Mr. Masood Ahmed.
2. Mr. M. Rasool Khan.
3. Mr. M. Riaz Ahmad.
4. Mr. Mohammad Nawaz Khan.
5. Mr. Sher Muhammad Khan.
6. Mr. M. Altaf Elahi.
7. Mr. Saghir Ahmed.
8. Mr. Abdur Rehman Our
9. Mr. Ghulam Mohiuddin
10. Mr. Tariq Pervez.
11. Mr. M. Yasin Baig.
12. Mr. Sh. Muhammad Saeed.
' In their support they have also quoted the provision to Sec. D-94 of the Civil Servants Act, but the Committee was of the view that the provision in question was not relevant to the point at issue. The Committee noted that the position of all the 14 officials whose seniority has been challenged, had been examined by the Committee in detail in its meeting held on 20-1-1981. The minutes of that meeting were read out by the D.I.P. Personally before the Superintendents who appeared for personal hearing, in order to convince them that each and every case had been examined thoroughly before taking the decision. Since the officials concerned did not put forth any other grounds after hearing the details read out to them, the Committee decided that the decisions taken in its meeting held on 20-1-1.981 should stand. The representation of Mr. Maqbool Ahmed Khan was also identical and the Committee was of the view that it was also not worthwhile to call Mr. Maqbool Ahmed Khan for personal hearing."
' The decision taken in the case of the appellant was communicated to him under No, 10/2/1986- Admn (K), dated 20-1-1987. The department has also taken legal objection that the appellant has filed the appeal without preferring departmental appeal and it is, therefore, not maintainable.
5. The case of the respondent No,4 in his written objections, in nutshell, is that he was senior to the appellant as LDC as well as UDC and he was entitled to promotion as Superintendent earlier than him but he was denied that promotion erroneously and the case of his promotion was reconsidered on his promotion and he was given due promotion and, therefore, he was assigned seniority as a Superintendent he was due for. He has raised the plea that the appeal is time- barred.
6. The respondent No,5 also has taken the plea that he was senior to the appellant as UDC and question of his seniority as Superintendent was re-settled and he was allowed presumptive seniority in the grade of Superintendent with effect from 6-2-1973 and he is, therefore, senior to the appellant.
7. The respondent No,6 has stated that he is senior to the appellant as he was promoted as a Superintendent with effect from 6-1-1973 whereas the appellant was promoted as Superintendent with effect from 26-4-1973.
8. The respondents Nos. 7, 10 and 12 have stated that they were senior to the appellant as UDCs but their promotion to the grade of Superintendent was withheld on account of certain departmental inquiry proceedings pending against them and in the meanwhile the appellant was promoted and they were subsequently exonerated from the departmental inquiries and they were entitled to restoration of their original position in the seniority list.
9. The respondent No,8 has stated that he was promoted as a Superintendent on 6-2-1973 and he actually joined the job at the Regional Passport Office, Quetta, but he was reverted later and was again promoted as a Superintendent on 21-5-1974 and his original seniority as a Superintendent was restored subsequently on his representations.
10. The respondent No,9 has stated that he was senior to the appellant as UDC and yet he was promoted as a Superintendent late and his seniority was maintained on his representation.
11. The respondent No,11 has not filed written objections.
12. The respondent No,13 has stated that he was appointed as a Superintendent with effect from 16- 2-1973, whereas the appellant was promoted as a Superintendent with effect from 26-4-1973 and, therefore, he (the respondent No,13) is senior to the appellant.
13. The respondent No,14 has stated that he was promoted as a Superintendent with effect from 22- 2-1973 and he was senior to the appellant who was promoted as a Superintendent with effect from 26-4-1973.
14. The appellant's claim for seniority is based on the date of his promotion as a Superintendent with effect from 26-4-1973 and that fact is supported by the order of his promotion dated 26-4- 1973 (Annexure 'A). However, the date o his appointment as Superintendent as mentioned in the impugned seniority list 8-5-1973. This variation of dates seems to have occurred on account of the different dates of the order of his promotion and the event of his taking over the charge as the Superintendent. His contention is that the respondents Nos.4 to 1 were promoted as Superintendents on subsequent dates and, therefore, they had to rank junior to him in the seniority list. The factual position of the promotion made by the department is reflected in the minutes of the meetings of the Departmental Promotion Committee held on 20-1-1981, 21-9-1981 and 16-5-1982 the extracts of which have been reproduced above. Full copies of the minutes o the meetings of the DPC have not been produced before us. It appears from the extracts of the minutes of the meetings of the DPC, referred to above, that the cases of only three respondents, namely Riaz Ahmad (R-4), Ghulam Mohiuddi (R-11) and Tariq Parvaiz (R-12) were considered for promotion at the meeting the DPC held on 20-1-1981 and they were allowed presumptive seniority from the dates their juniors were promoted for the reasons stated therein. These three respondents have, therefore, been restored to their original due seniority on t basis of their seniority as UDCs and the appellant has no case to claim seniority over them in view of the general principles of seniority contained in Office Memorandum No,1/16/69-D.II, dated 31st December, 1970 (published as S.No,158 at pages 152 to 154 of ESTACODE, 1983 edition) providing that where in a single reference, the Selection Board/DPC are asked to recommend more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond control of the persons concerned, the recommendation of the Selection Board/DPC in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made.
15. As regards the other respondents Nos.5 to 10, it is indicated in the minutes of the meeting of the DPC held on 16-5-1982, reproduced above, that their cases also were examined by the DPC in detail in the meeting held on 20-1-1981 but there is no such mention in the extract of the minutes of the meeting of the DPC held on 20-1-1981. Their cases have, therefore, to be examined on the basis of their respective pleas taken in the written objections. The case of respondent No,5 (Sher Muhammad) is that his promotion as Superintendent was initially made with effect from 11-5-1973 but it was antedated to 6-2-1973 on account of restoration of his seniority amongst the UDCs with effect from 9-3-1963 as per office order No,216 dated 30-8-1973, a copy hereof is Annexure 'F" to his written objections. In view of this documentary evidence , this respondent is, therefore, entitled to reckon his seniority from -2-1973 which is earlier than the date of the promotion of the appellant and he as rightly been placed above the appellant in the seniority list.
16. The case of respondent No,6 (Muhammad Rasool Khan) is that he was omitted as Superintendent with effect from 6-1-1973 and, therefore, he was senior to the appellant. He has not filed any document in support of the date of is promotion. Of course, it is mentioned in the impugned seniority list that he as given presumptive seniority with effect from 6-1-1973, but there is no evidence as to under what circumstances his supersession by the appellant was revised and he was given presumptive seniority from 6-1-1973. In the absence of such evidence, he is to rank in the seniority list below the appellant.
17. The contention of the respondent No,7 (Muhammad Nawaz) is that he as promoted as Superintendent on 6-2-1973 vide office order dated 6-2-1973 but e was not relieved to join the new assignment and in the meantime he was sent n forced leave till finalisation of inquiry proceedings against him and he was operated later and posted as a Superintendent on 6-7-1974. His plea is supported by copy of the office order dated 6-2-1973 (Annexure 'B' to his written Ejections); a copy of Memorandum dated 20-2-1973 (Annexure 'C' to the written ejections), whereunder he was sent on forced leave; and a copy of office order 159 dated 6-7-1974 of his promotion as Superintendent (Annexure `E' to the Witten objections). It appears from the documents referred to by him that order his promotion as Superintendent was actually issued on 6-2-1973 but he was required to proceed on forced leave vide order dated 20-2-1973, before his taking over as the Superintendent as the order mentions him as UDC and he was taken back on duty as UDC on 4-7-1974, as per order dated 4-7-1974 (Annexure 'D' to his written objection) and order of his promotion was issued two days later i,e, 6-7-1974. It appears from the order dated 4-7-1974 that he was exonerated of the charges which were levelled against him. Thus, he is entitled to reckon his seniority when the order of his promotion was issued first time on 6-2-1973 and he would stand senior to the appellant.
18. The case of the respondent No,8 (Muhammad Altaf Ilahi) is that he was initially promoted as a Superintendent on 6-2-1973 and he actually joined the job at Regional Passport Office, Quetta but he was reverted later and was again promoted as a Superintendent on 21-5-1974 and his original seniority as the Superintendent was restored subsequently on his representations. He has not filed any documentary evidence to bear out that his promotion as Superintendent was restored to the date of his initial promotion viz. 6-2-1973. In the absence of such evidence, he would reckon his seniority from 21-5-1974 which would be subsequent to the date of the promotion of the appellant and he would, therefore, rank junior to the appellant in the seniority list.
19. The respondent No,9 (Saghir Ahmad) has stated that he was senior to the appellant as UDC and yet he was promoted as Superintendent later and his seniority was restored on his representations.
He has not filed any document in support of his contention that he was allowed seniority on the basis of his seniority as UDC. He is, therefore, to rank junior to the appellant in the seniority list as having been promoted later.
20. The contention of the respondent No,10 (Abdur Rehman Qureshi) is that he was senior to the appellant as UDC but his promotion was deferred as he was placed under suspension from 18-11- 1972 to 30-6-1974 in a departmental inquiry and his juniors were promoted during that period and he was ultimately exonerated from the departmental inquiry and he was promoted as a Superintendent with effect from 26-7-1974. The date of his promotion was subsequent to that of the appellant. His plea that his seniority amongst the Superintendents was restored to the date he would have been promoted had he not been suspended has not been substantiated. He has not filed any order in support of his plea. He would, therefore, claim his seniority with effect from 26-7- 1974 and would rank junior to the appellant.
21. The cases of respondents 11 and 12 have already been discussed above along with that of respondent No,5.
22. The dispute of appellant's seniority vis-a-vis that of the respondents 13 and 14, namely Shamshad All Khan and ChAtta Muhammad, rests on different premises. Both these respondents were appointed directly on 16-2-1973 and 20-2-1973 respectively, whereas the appellant's promotion order was issued on 16-4-1973. By chronological order, they stand senior to him.
However, the appellant has raised the plea of seniority over them challenging the very nature of their appointment by way of direct recruitment on the ground that they could not be appointed by direct appointment. It has been conceded by the department that there was snag in their direct appointment but scrutiny of their appointments was excluded from the purview of Section 12-A of the Civil Servants Act, 1973 and, therefore, they were deemed to have been appointed regularly. Be that as it may, the appellant did not challenge their appointments at the relevant time and they would reckon their seniority from the dates of their appointment until their appointments stand intact and, therefore, he has no case to subjugate their seniority below him.
23. It follows from the above analysis of the cases of the appellant and the respondents that the respondents Nos.4 to 12 were senior to the appellant as UDCs but their promotions to the posts of Superintendents were later in time than that of the appellant, for one reason or the other; and the respondents 5 & 7 were given seniority on the basis of their seniority as UDCs, as discussed above; while the respondents 6, 8, 9 & 10 have not furnished evidence that their seniority too was restored on the basis of their seniority as UDCs. As regards the seniority of the appellant vis-a-vis the respondents 13 and 14, the two respondents were appointed directly as Superintendents earlier than the promotion of the appellant as the Superintendent and therefore, they stand senior to him in the seniority list unless their very appointments were challenged.
24. The respondents 1 to 3 who are the Government functionaries have put forth legal objection that the appellant has preferred the appeal without exhausting the remedy of departmental appeal and, therefore, his appeal is not maintainable. The appellant has preferred this appeal against the order dated 20-1-1987 on his representation dated 17-3-1985 addressed to the Director, Immigration & Passports. Of course, he did not prefer departmental appeal to any higher authority and directly filed the appeal before the Tribunal. The appellant's representation was for determination of his seniority and such matter does not fall within the purview of Rule 4 of the Civil Servants (Appeal) Rules, 1977, providing as to in which cases a civil servant shall be entitled to file a departmental appeal. The appeal, therefore, does not stand hit by proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973.
25. The most of the other respondents have raised the question of limitation contending that the appeal filed in the year 1987 against the seniority list published in 1981 is time-barred. The appellant has stated that he did make representation against the seniority list of 1981 in January, 1982 and while it was pending, he was compulsorily retired from service and he was reinstated in service on 22-9-1984 after the order of his compulsory retirement was set aside by the Tribunal in his appeal No,17(R) of 1983; and he again made representation on 17-3-1985 and orders thereon were communicated to him under Memorandum dated 20-1-1987 and he preferred this appeal on 21-2- 1987. It has been urged on his behalf that the appeal was filed within the period of limitation under the aforesaid circumstances. The appeal filed on 21-2-1987 challenging the I order dated 20-1-1987 is, therefore, within the period of limitation.
26. In the result, the appeal is allowed to the extent that the appellant shall rank senior as Superintendent to the respondents Nos.6, 8, 9 and 10, while it stands dismissed in respect of the other respondents.