SHAFIUR RAHMAN, J.---Leave to appeal was granted, both to the civil servant affected as well as to the Federation of Pakistan to examine, under Article 212(3) of the Constitution, whether the Tribunal had correctly, by its judgment dated 6-7-1985, held that the Establishment Division Memorandum dated 7-6-1980 with regard to the principles for determining seniority of those absorbed on transfer from the surplus pool, had no statutory backing to affect the rights of respondent No,1 in the seniority.
2. Two events preceded the transfer and absorption of the appellant in C.A.No,328/86 (Mr. Muhammad Yusuf Chauhan) in the Education Division as a Research Officer. The first was an austerity measure on the directive of the President following the announcement of the Budget for the year 1979-80. As a measure of economy, posts had to be suitably reduced in each Department/Division. The other was the enforcement of the Metric System of Weights and Measures and the same subject was transferred for-administration to the Provincial Government and then it was decided to phase out the Officers of the Industries Division employed on the work of Weights and Measures and to absorb them in other Departments of the Government.
3. Mr. Muhammad Yusuf Chauhan, one of the appellants, originally belonged to the Punjab Government and was employed there in the Education Department and was confirmed as such. He received a direct appointment through the Public Service Commission in NPS-18 in the Department of Weights and Measures under the Ministry of Industries on 23-11-1973. He was after the abolition or transfer of the functions of Weights & Measures Department to the Province, absorbed in the Ministry of Education on 1-4-1980 as Senior Research Officer in the same Scale of Pay in which he was earlier employed. The Establishment Division on 7th of June, 1980 enunciated its policy of absorption and dealt with questions arising out of it. The two relevant provisions, for the purposes of this case are clauses (g) and (h) of the Memorandum dated 7-6-1980 and are reproduced hereunder:- "(g) The absorption/appointment of such surplus persons who were holding regular posts before their being declared surplus, shall not be treated as ad-hoc.
(h) The previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post, if absorbed against an equivalent post and their pay shall be fixed under normal rules in consultation with the Audit/Finance Division."
' The Ministry of Education, in compliance with this directive, prepared the seniority list and allowed seniority to the appellant Mr. Muhammad Yusuf Chauhan (hereinafter referred to as the appellant) from the date of his appointment in NTS-18 which happened to be 23-11-1973. Sarfraz Khan Jadoon (respondent No,1) had joined the Ministry of Education as a Technical Assistant on 31-8-1963, after being selected by the Public Service Commission. He was promoted as Senior Research Officer in NPS-18 w,e,f, 16-4-1977. He was on account of these dates placed junior. He took his grievance to the Service Tribunal and took a number of grounds but the Tribunal allowed his claim on the following grounds:- "(i) Had respondent No,3 been given seniority in the Ministry of Education with effect from the date of his appointment there, there would have been no controversy. A person transferred from one post to another equivalent post, under the general rules, gets his seniority from the date of his appointment to such other post and not from the date of his previous appointment. The only exception probably would be where a person is transferred from one Division to another Division along with post, work and duties. In the present case, the duties under the Ministry of Industries were quite different from those which were under the Ministry of Education. Respondent No,3, therefore, could not be placed senior to the appellant having joined the Ministry of Education much later.
(ii) The order of the Government placing respondent No,3 senior to the appellant also offends the spirit of CSR 426, which under the heading COMPENSATION PENSION reads . This provision clearly shows that the Government is not bound to give any appointment to a person who is selected for discharge owing to the abolition of even a permanent post. The Government can provide him with an equivalent post, but if it is not possible, he shall be entitled to compensation pension or the gratuity. He can also be appointed to another establishment even on a lower pay.
(iii) He cannot be given terms and conditions which affect other persons adversely."
4. Ch.Ijaz Ahmad, the learned Deputy Attorney-General for Pakistan representing the Government and Mr. M. Bilal, Senior Advocate, the learned counsel for the appealing civil servant/appellant in C.A.328/86, have contended that section 8 of the Civil Servants Act expressly provides that seniority shall not be a vested right. It follows, therefore, that the competent authority can frame rules, and alter the seniority of the individuals concerned. The Establishment Division was the competent authority in view of the provisions made in rule 5 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which makes the Establishment Secretary the appointing Authority in respect of posts in BPS-17 to 19 or equivalent. They have also pointed out that it has consistently been the practice of the Government to allow to such surplus civil servants the benefit of their past service on their absorption on new posts. It is not something new and unjust or oppressive to those already in Government service.
5. It has to be kept in view that the dispute between the parties and the question of law arising out of it is of the year 1980. At that time section 8 of the Civil Servants Act, 1973 read as hereunder:- "8. Seniority.--(1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: ' Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
This section has two features relevant for the present case. The first is that not even by implication this provision shall be construed as conferring any vested right to a particular seniority on a civil servant. The second is that the seniority list that is required to be prepared under this law has to be prepared either of the service, or of the cadre or of the grade and no other. It was in 1984, that the word 'post' was added in substitution of 'grade'. The word grade has been defined in National Pay Scales Scheme as grades falling in one of the pay scales specified in those rules. On that principle, the seniority of the appellant and of the respondent No,1 has to be determined in grade/NPS-18 and it will count from the date of appointment in that grade and that will make the appellant senior to the respondent No,1, the appellant having entered in NPS-18 earlier to the respondent No,1.
6. As per rules referred to above, Establishment Division and the Establishment Secretary In charge of it is the competent authority for dealing with Officers in Grade-18. The directions of the Establishment Division relevant to the case, reproduced above, are unequivocal and permit the grant of such benefit to the appellant. Coming as they do from a competent authority and being general and uniform in nature, they take over, there being nothing contrary in the Rules. As early as in 1949, a similar instruction reproduced hereunder was issued:-- (O & M Establishment Manual Volume III, page 248-Srl. No,8 refers): "As a result of the adjustments of surplus and deficits carried out after Independence, certain individuals who became surplus to the requirements of a particular Ministry/Department, etc., were transferred to other offices in which their services were required. Necessary instructions in regard to the fixation of their pay and condonation of break in service have already been issued in the Office Memoranda of the Ministry of Finance Nos.4587-EG-II/48 and 491-R11/49, dated respectively the 19th August, 1948 and the 18th March, 1949. A question has now arisen whether the surplus staff transferred from one office to another without break in their service, or in whose case the break in service has been condoned in the light of the instructions referred to above, should be given the benefit of their previous se, vice in the matter of (i) leave (ii) travelling allowance and joining time, and (iii) pension. It has been decided that during the period the staff in question remained surplus they should be considered to be on duty for the above purposes and, therefore, they should be given the benefit of their previous service in accordance with the relevant rules.
2. It has also been decided that the previous service of the surplus staff in question should also count towards seniority in the grade concerned in office to which they have been transferred.
Doubtful cases relating to their seniority should be referred to the Establishment Division direct.
(Ministry of Finance Office Memorandum No,F.2(13)-R.II/49, dated the 13th July, 1949)."
' Another occasion for the same exercise arose when following the Constitution of 1962, reorganisation of the Central Government took place. The detailed instructions appear at serial No,31 at page 267 of the 0 & M Establishment Manual (Volume III) and with regard to seniority, the following provision was made in sub-clause (iii) of clause (3):-- "Their seniority in a grade vis-a-vis the Provincial Government servants in that grade shall he determined with reference to their respective dates of continuous appointment to that grade.
' For this purpose, "Grade" may be defined broadly as consisting of a number of posts of the same category in the same class of service carrying the same duties and responsibilities and in a common scale of pay or in a comparable scale of pay." (Establishment Division Efficiency and 0 & M Wing, Memorandum No,1/12/62-IC(RP), dated the 17th November, 1962).
' Yet another occasion for such an exercise arose in 1971 with regard to employees coming over from East Pakistan and it was disposed of by the instructions with regard to seniority as hereunder:-- "The question of absorption and seniority of former employees of Government of East Pakistan and autonomous bodies who were on deputation to the Federal Government on 16-12-1971, and the question of seniority of Federal Government employees recruited on zonal/regional basis in the department of Federal Government located in East Pakistan has been under consideration of the Government for some time past. It has now been decided that such employees may be allowed to count their service rendered in former East Pakistan towards seniority in equivalent grades held by them under the Federal Government." (S1. No 162 ESTACODE, p.158, 1983 edition- O.M.No, 2/28/72- RC(Estt), dated the 16th April, 1978).
7. It is true that on the abolition of a post, if the services of the incumbent of that post are terminated and he is not provided another employment, he cannot make a legal grievance of it. It is not his right to claim absorption or to be given seniority. What he can claim as a matter of right is provided in CSR 426 which has already been taken note of in the impugned judgment of the Service Tribunal. We are examining here not the right of the civil servant but the power of the Government or the competent authority to grant him. They are not found to be limited in this case or in the number of cases and situations referred to above. As such, intervention by the Government which is remedial, does not affect any of the vested rights of the other civil servants.
They cannot stand up against it. The appointment rules as well as the Civil Servants Act provides transfer as one of the modes of appointment to a post. But none of these makes any rules with regard to seniority on such transfer. The only rule in existence is with regard to the seniority in a grade and it commences on regular entry into that grade. For post, cadre and service, no rules of seniority have been framed for such transferees. May be such unforeseen situations, as have been described above, were kept in, calling for a special dispensation and for that purpose the field was left unoccupied by formal rules so as to be controlled by the competent authority as it considered just and proper.
8. We find that the instructions on which reliance was placed by the appellant and which was given recognition by the Establishment Division in preparing the seniority list were framed by the competent authority, had the statutory effect of governing the question of seniority and determined it in favour of the appellant, none of the vested rights of the respondent No,1 being violated in the process.
9. Both the appeals are allowed. The judgment of the Service Tribunal is set aside and the seniority list as between the appellant - Mr. Muhammad Yusuf Chauhan and the respondent No,1 - Sarfraz Khan Jadoon as prepared by the Department will hold the field. No order is made as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.