' SYED ALLY MADAD SHAH (CHAIRMAN).---Appellant Mr. Muhammad Sirajul Haq, an Administrative Officer, Pakistan Meteorological Department (headquarter's office), Karachi, has preferred this appeal for determination of his seniority amongst the Administrative Officers.
2. The facts stated by the appellant in the memo of appeal are that he is an Administrative Officer in the Pakistan Meteorological Department's headquarter's office, Karachi, and the respondent No,3 Mr. Ali Zaman is an Administrative Officer in the Regional Meteorological Centre, Karachi Airport, and the respondent No,4, Mr. Hayatul Akbar, is an Administrative Officer in Pakistan Meteorological Department headquarter's office, Karachi. In a provisional seniority list of Administrative Officer circulated on 28-10-1984, the name of the respondent Hayatul Akbar (No, 4) was placed at S. No,1, his (the appellant's) name was placed at S.No, 2, and that of the respondent Mr. All Zaman (N.3) at S.No,
3. He made representation for assignment of seniority above the respondent No,4. He was informed under Memo. Dated 8-4-1985 that the seniority reflected in the provisional seniority list shall be maintained. The respondent No, 3 made representation that he was senior to the appellant. His representation was accepted and a revised seniority list was issued on 15-11-1985, wherein the respondent No,3 was placed at S.No, 2 and the appellant's position was relegated to S. No,
3. The appellant preferred departmental appeal on 9-1-1986. He did not get any orders until the expiry of 90 days. He, therefore, filed this appeal on 17-4-1986.
3. The appellant has given in the memo. Of appeal the comparative statement of his service and that of the respondent No,3 (Mr.Ali Zaman), in the form of a chart, as under:- Appellant Respondent No,3 Date of joining as Stenographer (present as Observer (present B-5)
Department. B-11) 28-2-1973. 31-12-1959.
Promotion as Senior Observer (B-7)
15-10-1963.
Promotion as Stenotypist (B-8) 20-10- 1964.
Promotion as Assistant (Tech.)
(present B-9) 1-7-1968.
Selected as Selection Grade Stenographer (B-13) 1-7-1969.
Moved over as Stenographer in senior scale (present B-14) 1-6-1973.
Moved over as Stenographer (present B-15) 1-12-1976.
Promotion as Assistant (Ministerial)
(Present B-11) 1-3-1975.
Promotion as Superintendent (B-14) as Superintendent (B-14)
20-2-1976. 20-2-1976.
Appointment on transfer as Staff Welfare Officer (B-16) in the Staff Welfare Organisation 1-2-1979 upto 31-1-1984.
Appellant Respondent No,5 Upgradation as Superintendent (B-16)
(Gazetted) 1-1-1980.
Promotion/ 28-5-1980 as Admn. Officer (B-16) redesignation as 11-2-1984.
Admn. Officer (B-16).
4. On the basis of the aforesaid comparative statement of their service career, the appellant's case is that at the time the appellant and the respondent No,3 were promoted as Superintendents (B- 14), he was already holding the post of a Stenographer (B-14) and the respondent No,3 (Mr. Ali Zaman) was an Assistant (B-11) and, therefore, he (i,e, the appellant) stood senior to the respondent No,3 in the cadre of Superintendents. The appellant's next contention is that he was promoted to the post of Administrative Officer on 28-5-1980, while the respondent No,3 joined as Administrative Officer on 11-2-1984 and, therefore, he stands senior to the respondent No, 8.
According to him, the respondent No,3 could not count his service with the Staff Welfare Organisation for earning promotion/seniority.
5. As regards the respondent No,4, the appellant's case in the memo of appeal is that the respondent No,4 held the post of a Professional Assistant (Technical), in Grade-13, from 1-12-1969 to February, 1975 and he was promoted/appointed as a Superintendent in Grade-14 on 1-3-1975, whereas he (the appellant) held the post of Selection Grade Stenographer (B-13) from 1-7-1969 and held the post of Senior Scale Stenographer in Grade-14 from 1-6-1973. It is further stated that respondent No,4 was appointed/promoted as Superintendent in grade 14 on 1-3-1975 and the appellant ought to have been appointed/re-designated in the same grade 14 in which he was working against the post of Senior Scale Stenographer. The appellant has also contended that he was entitled to the promotion in preference to the respondent No,4 on the basis of 10 per cent quota reserved for Stenographers as per Establishment Division instructions enforced in 1951, published as S.No, 197, at page 184 of ESTACODE (1983 edition). He has further contended that in his case for appointment as Superintendent, no question of promotion was involved but it was just the matter of switching over to the post of Superintendent (B-14) whereas in the case of respondent No,4, he was promoted from grade 13 to the post of Superintendent in grade 14.
6. The respondents have contested the appeal. The version given by the department is that the appellant had made representation followed by subsequent applications in the years 1975 and 1976 for his promotion from the post of Stenographer to the post of Superintendent under 10 percent quota reserved for Stenographers and he was promoted to the post of Superintendent on 25-10-1976 with effect from 20-2-1976 against 10 per cent quota of the Stenographers. It has been stated in the written objections that a seniority list of Superintendents was circulated in 1977, wherein respondents Nos.3 and 4 were assigned seniority over the appellant and the appellant did not object to it until 25-11-1984, when he made representation which could not be acceded to. They have stated in detail the facts wherein it has been indicated that the respondent No,4 was approved for promotion on 3-3-1975 whereas the appellant was approved for promotion as Superintendent on 25-9-1976 and, therefore, the respondent No,4 was placed above him in the seniority list. As regards the respondent No,3 the department's version is that the respondent No,3 was promoted as Superintendent on 20-2-1976, whereas the appellant was promoted as a Superintendent on 25-10-1976 and, therefore, the respondent No,3 made representation that his name in the seniority list may be placed above the appellant and his representation was accepted and he was placed above the appellant. As regards the next promotion to the post of Administrative Officer, it is stated that the respondent No,3 had applied for the post of Instructor and was subsequently placed on deputation with the Staff Welfare Organisation with effect from 1- 2-1979 and his promotion in the parent department was considered by the Departmental Promotion Committee alongwith that of the appellant on 24-3-1980 and they were approved for promotion. It is further stated that the respondent No,3 was called upon to return to the parent department whereas the appellant, who was already in the department, took over as Administrative Officer on 6-5-1980. It is also stated that the respondent No,3 was not spared by the borrowing department due to the exigency of service and he continued serving there and he was relieved after completing the period of deputation for five years and he joined as Admn. Officer on 11-2-1984. According to them, the representation of the respondent No,3 that his seniority may be reckoned from the date he was approved for promotion viz. 24-3-1980 was upheld and he was placed above the appellant in the revised seniority list dated 15-11-1985.
7. The respondents Nos.3 and 4 also have resisted the appeal on almost the same grounds stated by the department.
8. The learned counsel for the appellant stated at the outset that the appellant accepted the provisional seniority list of 1984, wherein he was placed at S.No, 2, below the respondent No,4 and above the respondent No,3 and, therefore, he did not press the appeal as against the respondent No,4. As regards the appellant's seniority vis-a-vis that of the respondent No,3, the learned counsel urged that the appellant had occupied senior post all along and both were promoted as Superintendents on one and the same date viz. 20-2-1976, and the appellant was promoted as Administrative Officer on 11-2-1984 and, therefore, the respondent No,3 was correctly shown below the name of the appellant in the provisional seniority list. According to him, the appellant and the respondent No,3 were first time approved for promotion at the same meeting held by the Departmental Promotion Committee and the appellant immediately joined the assignment, whereas the respondent No,3 remained on deputaion where he had gone at his request and he had to forego his promotion and his joining the post of Administrative Officer on 11-2-1984 placed him behind in the seniority list. Reference was made to the principles of seniority enunciated in the ESTACODE (1983 edition) at pages 222, 229 and 230, and reliance was placed on the cases reported in 1984 PLC (C.S.) 1603, 1985 SCMR 1956 and 1986 SCM R 1499.
9. The learned Standing Counsel for the Government urged that the respondent No,3 was approved for promotion at the meeting of the Departmental Promotion Committee held on 3-4-1976 whereas the appellant was approved for promotion as a Superintendent at the meeting of the Departmental Promotion Committee held on 25-9-1976 and it wasin that context that the appellant's name was placed be the name of the respondent No,3 in the seniority list of 1977. He next stated that at the time of promotion to the post of Administration Officer, the respondent No,3 was on deputation on a post in B-16 and he was not relieved by the borrowing department for joining the post of the Administration Officer in the parent department and he was relieved only on 11-2-1984 when he joined as Administrative Officer. He did not comment on the claim of the respondent No,3 that his seniority was to be reckoned from the day he was approved by the Departmental Promotion Committee for his promotion as Administrative Officer.
10. The learned counsel for the respondents 3 and 4 adopted the arguments advanced by the Standing Counsel Mr. Niaz Ahmad Khan and also added that the respondent No,4 stood senior to the appellant for all purposes and the former's seniority stood unquestionable and appeal has not been pressed ultimately in respect of him as per statement by the learned counsel for the appellant, whereas the seniority of the respondent No,3 was settled by the Establishment Division and he was placed above the appellant.
11. In view of the statement by the learned counsel for the appellant that the appeal is not pressed as against the respondent No,4, there remains the determination of the seniority between the appellant and the respondent No,3. The appellant and the respondent No,3 were promoted as Superintendents (Grade-14) on one and the same date as indicated in the seniority list of Superintendents as on 1-1-1977, a copy whereof is Annexure D-1 to, the written objections filed by the respondents 1 and 2. The next step was their promotion/appointment as Administrative Officers in the year 1980. It transpires from the written objections filed by the respondents 1 and 2 that both the A appellant and the respondent No3 were approved by the Departmental Promotion Committee for promotion to the post of Administrative Officer on 24-3-1980. The appellant took over charge of the post of Administrative Officer on 6-5-1980. At that time, the respondent No, 3 was on deputation with the Cabinent Secretariat as Instructor, Typing and Shorthand (Grade-16) in the Vocational Training Centre, Staff Welfare Organisation, Karachi, as per office order dated 11-1- 1979. He was informed under Memo. Dated 1-4-1980 that he had been approved by the competent authority for promotion to the post of Administration Officer (grade 16) and he was called upon to state whether he would join the post on promotion. He did not join the post of Administration Officer, but there was a letter dated 15.41980 from the Staff Welfare Organisation, Cabinet Secretariat, to the Director General, Pakistan Meteorological Department, Karachi, that the Organisation could not spare the respondent Mr. All Zaman until a suitable substitute was appointed and requesting that Mr. All Zaman (the respondent No,3) may be promoted in absentia and he may be permitted to continue with the Staff Welfare Organisation, in the public interest. The name of the respondent No,3 was again considered for promotion at the subsequent meetings, of the Departmental Promotion Committee held on 18-34981 and 4-1-1983 and he was approved for promotion as Administrative Officer but he did not join the post of Administrative Officer on account of his being on deputation with Staff Welfare Organisation. The respondent No,3 returned to the parent department after completing five years deputation with the Staff Welfare Organisation and took over as Administrative Officer at Lahore on'11-2-1984. The respondent No,3 was, therefore, placed below the appellant in the provisional seniority list of Administrative Officers dated 1-10-1985. He made representation that his seniority may be reckoned from the day he was approved for promotion first time on 24-3-1980. His representation was accepted vide inpugned order dated 4-12-1985 and the seniority list was revised. The question for determination, therefore, is from which date the respondent No,3 could reckon his seniority as Administrative Officer. It is provided under subsection (4) of section 8 of the Civil Servants Act, 1973 that seniority in a post, service or cadre to which a civil servant is promoted, shall take effect from the date of regular appointment to that post; provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post. Both the appellant and the respondent No,3 were approved by the Departmental Promotion Committee for promotion as Administrative Officers on one and the same date viz. 24- 3-1980, as stated above. Both were promoted from the posts of Superintendent. In the seniority list of Superintendents circulated in 1977, the name of respondent No,3 was placed above that of the appellant. The appellant did not challenge the seniority of the respondent No,3 as such, until 25-11- 1984 when he made representation Against it, although his contention is that he was not aware of the seniority list of 1977. Since the respondent No,3 held the position in the seniority list of Superintendents above that of the appellant, as aforesaid, he could retairrthat position on his promotion as Administrative Officer, B-16 under proviso to subsection (4) of section 8 of the Civil Servants Act, 1973. The anomalous situation arose on account of the late assumption of the charge of the post of the Administrative Officer by the respondent No,3. The reason for his late assumption was that he was on deputation as Instructor, B-16, with the Staff Welfare Organisation, with effect from 1-2-1979 and he was not relieved by the borrowing department and a request was made to his parent department that he may be permitted to continue on deputation and he so continued and returned to the parent department in February, 1984. The respondent No,3 had, of course, gone on deputation at his request but he was subsequently retained by the borrowing department, obviously with the concurrence of the lending department. The case of the respondent No,3 was considered for promotion in the subsequent years 1981 and 1983 and his name was approved.
Since the respondent No,3 occupied the position above the appellant in the seniority list, of the Superintendents and both were selected for promotion to the post of Administrative Officer on one and the same date, the respondent No,3 was entitled to retain his position in the seniority list even in the higher post by virtue of proviso to subsection (4) of section 8 of the Civil Servants Act, 1973 and, in my opinion, he did not lose his seniority as Administrative Officer on account of his joining late for the reason that he was on deputation some-where and he was not relieved by the borrowing department with the added ground that he had held the post on deputation in the grade equivalent to that of the Administrative Officer he was promoted to in the parent department. This view is in keeping with the instructions contained in Office Memorandum No, 1/28/71-D.II, dated 29th July, 1971, published in ESTACODE (1983) at page 229. Its paragraph 2 is relevant for the purpose of this case and it is reproduced below:--
2. The intention underlying pro forma promotions is to protect the interests of the Government servant only in circumstances where the Government servant is required to serve away from his parent cadre because of a definite requirement of public interest and not merely to suit his own interests. Normally, therefore, a deputationist, as soon as he becomes due for promotion, should be required to revert to his parent department or cadre so that he is promoted to the next higher post for which he may have been declared fit. In case an offer of promotion is made to him and he declines to revert, he may be allowed to remain in the outside post on the clear understanding that he will not ask for pro forma promotion. Only in exceptional cases where the borrowing Department or organisation expresses its inability to spare the officer, and the Head of the parent Department records in writing why he considers it necessary to keep the Government servant on deputation in the ex-cadre appointment, may pro forma promotions be made. Even in such cases the period for which the officer is allowed to continue to remain on deputation with the benefit of pro forma promotion, should be judicioulsy fixed so that the officer reverts to his cadre and is appointed to the post for which he has been approved for promotion, as early as possible. Such period should not normally exceed 6 months . All cases where pro forma promotions are allowed for a period exceeding 6 months should be reported to the Establishment Division with full justification."
' It would appear that the acceptance of the representation of the respondent No,3 for placing him senior to the appellant as the Administrative Officer was in keeping with the instructions, referred to above.
12. The departmental orders/instructions relied upon by the learned counsel for the appellant have been referred to above. The cases cited by the learned counsel viz. PLD 1958 SC at page 41; 1984 PLC (C.S.) 1603; 1985 SCMR 1956 and 1986 SCMR at page 1499 also do not advance his case. The first case viz. PLD 1958 SC 41 is based on altogether different facts, except that the scope of 'proviso' in a statute also was considered. It was observed that a proviso is to be regarded as something which excepts a particular case from a general principle are the effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it; but no such question for consideration of proviso is involved in this case. In the case reported, 1984 PLC (C.S.) 1603 (Muhammad Yaqoob v.
Secretary, Minsitry of Religious and Minority Affairs), it was held that an error of fact in judgment by Departmental Selection Committee entailing supersession of a civil servant would entitle the affected person to count his promotion from the date his junior was promoted. That case too is not applicable to this case. The case of S.S. Qureshi v. Secretary, Ministry of Foreign Affairs (1985 SCMR 1953) involved consideration of question of promotion but in a different context and is not attracted to the facts of this case. In the other case viz. Cheif Administrative Officer v. Muhammad Maqsood 1986 SCMR 1499, the question of seniority was involved but on, quite different facts, and is not applicable.
13. It follows from the facts discussed above that the decision of the Establishment Division placing the respondent No, 3 above the appellant in the seniority list of the Administrative Officers in B-16 was in accordance with law and it does not call for interference. The appeal is, therefore, dismissed with no order as to costs.