' SYED ALLY MADAD SHAH (CHAIRMAN).---Both the appeals have arisen from controversy over seniority between the appellants on one side and the respondent No, 3, Mr. Khalid Nasim, on the other side, in the cadre of Deputy Directors (Technical) in the Ministry of Petroleum and Natural Resources, Government of Pakistan.
2. The facts in the background are as under: ' Mr. Tajuddin Khan Sherwani (hereinafter referred to as Mr. Sherwani), the appellant in Appeal No, 373(R)/86, was directly appointed as an Assistant Director (Technical), Grade-17, in the Ministry of Petroleum and Natural Resources. He was promoted as a Deputy Director (Technical), Grade-18, on 21-24979. Mr. G.A. Sabri (hereinafter named as Mr. Sabri) was directly appointed as an Assistant Director (Technical), Grade-17, in the same Ministry, on 14-7-1975. He was promoted as a Deputy Director (Technical), Grade-18, on 21-2-1979. Mr. Khalid Nasim, the respondent No, 3, was employed as a Grade-18 Officer in WAPDA. He was appointed, on deputation, as a Senior ,Fuel Economy Officer (Grade-18) in the Ministry of Fuel,Power and Naturai Resources, on 1842-1976.
3. Both the appeals have been resisted by the Federal Government as well as by the respondent, Mr. Khalid Nasim, on the grounds which would be mentiond hereinbelow.
4. The whole controversy rests on the nature of appointment of the respondent- Mr. Khalid Nasim in the Ministry of Petroleum and Natural Resources. It is; therefore, necessary to trace in detail the history of the appointment of the respondent Mr. Khalid Nasim in the said Ministry. He entered the Ministry by his appointment,on deputation as a Senior Fuel Economy Officer (Grade-18) by virtue of letter of appointment No, 62919-30/MDP/Admn-.. I/14/170, dated 18-12-1976. Subsequently, a notification dated 4-1-1977 was issued whereby the appointment of the respondent Mr. Khalid Nasim was termed as appointment on transfer from WAPDA on ad .Hoc basis and until further orders. In the year 1977, the Ministry of Fuel, Power and Natural Resources was bifurcated into two Ministries known as: (i) Ministry of Water and Power; and (ii) Ministry of Petroleum and Natural Resources: The newly-constituted Ministry of Water and Power advertised a post of Senior Fuel Economy Officer (Grade-18) as per FPSC consolidated advertisement No, 8 of 1978 dated 8-3-1978.
The respondent Mr. Khalid Nasim applied for that post and was selected. Accordingly, he was appointed on regular basis as a Senior Fuel Economy Officer (Grade-18) in the Ministry of Water and Power vide Memorandum, dated 14/18th October, 1978 with effect from 30-9-1978, terminating his appointment on deputation with effect from that date. The respondent Mr. Nasim made representation to the Managing Director (Power), WAPDA, Lahore on 4-12-1978 that orders may be issued for his transfer to the Ministry so as to, protect his service rights with WAPDA. Some correspondence seems to have, been made with the WAPDA also by the -Ministry of Water and 'Power. The Chief Engineer (Administration) (Power), WAPDA, Lahore addressed a letter dated 7-4- 1979 conveying that the respondent Mr. Khalid Nasim, was sent on deputation to serve the Ministry of Water and Power as a Senior Fuel Economy Officer and he had accepted the offer of the Government for his appointment on regular basis and he was permanently transferred to the Ministry without retaining his lien. A copy of that letter was endorsed to the respondent Mr. Khalid Nasim with reference tohis representation dated 4-12-1978. The Ministry also informed him under Memorandum dated 12-4-1979 of the reaction of the WAPDA. Subsequently, a notification dated 4- 10-1979 was issued for his appointment on regular basis as a Senior Fuel Economy Officer (Grade- 18) with effect front 30-9-1978 and until further orders. As a measure of economy in pursuance of the directive of the President, certain posts in the Government Departments were abolished with effect from 14-5-1980 and the respondent Mr. Khalid Nasim was amongst the unlucky employees who were rendered surplus and his name was circulated alongwith others under Office Memorandum dated 30-4-1980 for his absorption somewhere in the Departments. Awaiting absorption anywhere, he made an application dated 26-5-1980 to the Secretary, Ministry of Petroleum and Natural Resources for appointment as a Deputy Director (Technical) (Grade-18), in the Technical Wing. He was issued a letter of offer of appointment dated 9-8-1981. His case for absorption in the Ministry also was processed and was approved as per Establishment Division U.O.
No, 19/1/80- A.IV, dated 17-8-1980. Accordingly, notification of his appointment by absorption as Deputy Director (Technical) (Grade-18) in the Technical Wing, an Attached Department of the Ministry of Petroleum and Natural Resources, was issued on 26-8-1981, showing assumption of charge of the post by him from 19-8-1981 and is continuing in the same department.
5. The appeals are essentially directed against the seniority list of Deputy Directors (Technical)
(Grade-18) in the Technical Wing, published on 21-10-1986. It is Annexure VI at page 27 of the memo. Of appeal. The relevant entries concerning the parties herein are reflected as under:- S.No.Name and DesignationDate of entry in Govt. serviceDate of entry B- 17Date of entry B- 18 1.Mr. Khalid Nasim Dy. Director (Tech.)30-9-197830-9-1978 in B- 1830-9-1978 2.Mr. G.A.Sabri, Dy. Director (Tech.)14-7-1975 14-7-1975 21-2-1979 3.Mr. M.T.K. Sherwani, Dy. Director (Tech.)8-10-1971 8-10-1971 21-2-1979
6. The appellants have advanced several grounds to challenge the seniority position of the respondent No, 3, Mr. Khalid Nasim (hereinafter mentioned as respondent No, 3). The grounds urged by the learned counsel at the hearing of the appeals are summarised below:--
(i) That the respondent No, 3 was employed in the WAPDA and he was appointed in the Ministry of Fuel, Power and Natural Resources as a Senior Fuel Economy Officer, on deputation, with effect from 18-12-1976 and nature of his appointment was changed to the appointment by transfer vide notification dated 4-1-1977 and the post of the Senior Fuel Economy Officer was advertised on 8-3- 1978 (P-20) as a temporary post and he (the respondent) was selected against that post and the letter of his appointment was issued on 14/18-10-1978 (P-39) and yet he continued to be a deputationist as the terms and conditions of his deputation were settled later vide letters dated 15- 12-1978 (P-42) and 28-1-1979 (P-43), and his lien was terminated under WAPDA letter dated 7-4- 1979 (P-44) and his no-objection for appointment in the Ministry was obtained from him as per Memo. Dated 12-4-1979 (P-45) and thereafter notification dated 14-5-1979 (P-46) of his appointment as the Senior Fuel Economy Officer (Grade-18) in the Ministry was issued with retrospective effect from 30-9-1978.
' That the notification dated 14-5-1979 (P-46) could not be given retrospective effect.
(iii) That the respondent could not be appointed directly as a Deputy Director in the Ministry as the post of Deputy Director (Technical) in the Ministry was cent. Per cent. Promotion post as per rules published on 15-4-1981.
(iv) That the respondent having become a surplus officer with effect-from 145-1979, was reappointed on his application as per order dated 9-81981 (P-23) and he could not claim seniority on the basis of his service rendered earlier in any form.
(v) That the respondent No, 3 was not absorbed in the Ministry as a surplus officer as there was no such order of his absorption.
(vi) That neither the appellants nor the respondent No, 3 has asserted that the respondent's absorption was made under the provisions of the Office Memorandum dated 7-6-1980 (P-37).
(vii) That even if it were assumed that the respondent was absorbed under the provisions of Office Memorandum dated 7-6-1980, the said Office Memorandum could not supersede the statutory rules of appointment etc.: and Moreover, the vires of the Office Memo. Dated 7-6-1980 was under challenge before the Supreme Court on a decision of this Tribunal in the case of Sarfaraz Khan Jadoon reported in 1987 PLC (C.S.) 194, although a different view was taken by this Tribunal in other appeals, namely Appeal No, 129(K) 1985 (decided on 27-11-1988) and Appeal 386(R)/86 (decided on 20-2-1989), and also in view of the decisions reported in PLD 1985 Lah. 185; PLD 1965 SC 106 and 1984 PLC (C.S.) 151.
(viii) That even if the respondent was deemed to have been absorbed in the Ministry under the provisions of Office Memorandum dated 7-6-1980, he did not have the benefit of seniority in the light of the decisions in the cases cited as 1982 SCMR 108 and 1989 SCMR 935.
(ix) That the respondent could not avail of the provisions of CSR-426, as urged by him, as he was not holding a regular post in view of the decisions reported as 1977 SCMR 365; 1982 PLC (CS.) 94 and 1984 PLC (C.S.) 1187.
7. The respondents have filed objections in considerable details to controvert the contentions of the appellants. They have stated the events of the entry into the Government service of the respondent Mr. Khalid Nasim and urged that his appointment was made in accordance with the relevant rules and he stood regularly appointed in the Ministry of Petroleum and Natural Resources with effect from 30-9-1978. They have further stated that the posts held by the respondent Mr. Khalid Nasim and many others were abolished as a measure of economy as directed by the President and, therefore, the incumbents of those posts had to be absorbed in other departments and the policy therefor was laid down under Office Memorandum dated 7-6-1980. According to them, the said policy was in keeping with the provisions of the Civil Servants'Act, 1973, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and Article 426 of the Civil Service Regulations.
8. Almost all the particulars of appointment of the respondent Mr. Khalid Nasim in the Ministry of Petroleum and Natural Resources stand outlined at paragraph 4 ante. After his entry in the Ministry by way of deputation as a Senior Fuel Economy Officer in Grade-18, as per letter of appointment dated 18-12-1976, he achieved regular appointment in the same capacity in the same Ministry by way of selection through the Federal Public Service Commission with effect from 30-9-1978. After abolition of the post held by him, he was appointed as a Deputy Director (Technical) in Grade-18 in the Technical Wing; an Attached Department of the Ministry of Petroleum and Natural Resources.
The appellants have objected to his appointment as a Deputy Director in the Technical Wing and in doing so they have also questioned his previous service in the Ministry. The grounds advanced by them have been summarised above at paragraph 6. The orders of their dates relating to the appointment of the respondent Mr. Khalid Nasim are not at dispute. One of the objections to his appointment outlined at S.No, (i) in paragraph 6 of this judgment is that notification of his regular appointment as a Senior Fuel Economy Officer in Grade-18 in the Ministry was issued on 14-5-1979 but it was made effective retrospectively from 13-9-1978 and that could not be done as the respondent continued to be a deputationist and reference has been made to the letters dated 15- 12-1978, 7-4-1979 and 12-4-1979 in respect of the settlement of the terms and conditions of his deputation and termination of his lien. The objections do not seem tenable. After his selection by the Federal Public Service Commission, letter of his appointment was issued on 14/18-10-1978 with effect from 30-9-1978, i,e, from the date the Commission notified his selection and that date was taken to be the date of his regular appointment as he was already in service. The letters dated 15- 12-1978 and 28-1-1979 pertaining to the terms and conditions of his service on deputation did not have much relevance to his regular appointment as they had not been settled earlier and they had to be settled for the period he remained on deputation. The letter dated 7-4-1979 was communication of decision of the WAPDA that his lien stood terminated. The memo. Dated 12-4- 1979 was addressed to him to give no objection for his appointment in the Ministry. This correspondence did not dislodge the order of his appointment dated 14/18-10-1978, effective from 30-9-1978, but they have rather paved the way for him to have firm footing in the department. The objection to the retrospectivity to the appointment of the respondent under notification dated 14- 5-1979 also is not tenable. The respondent was already in service when he was selected by the Federal Public Service Commission and the letter of his appointment was issued on 14/18-10-1978 and the notification was issued to give formal shape to the appointment order of clearance of all the required formalities.
9. The third objection is that the respondent could not be directly appointed as a Deputy Director in the Ministry when all the posts of the Deputy Directors (Technical) were cent per cent promotion posts as per method, qualifications and other conditions laid down in notification dated 15-4-1981, filed as Annexure VII in Appeal No, 373(R)/86. This objection too is not sustainable. The respondent's appointment as Deputy Director (Technical) in Grade-18 was not by way of direct recruitment but it was his appointment by absorption. Even otherwise, the respondent has placed on record a copy of Summary issued by the Establishment Division under Order No, 19/1/80-A.IV, dated 17-8-1980, to the effect that the absorption of the respondent Mr. Khalid Nasim in the Ministry was approved and such notification was issued on 26-8-1981. Thus, the appointment of the respondent as a Deputy Director (Technical) in Grade-18 in the Technical Wing of the Ministry was not hit by the rules of appointment, published under notification dated 1,5-4-1981.
10. The next objection, at S.No, (iv) of paragraph 6 is to the effect that the respondent Mr. Khalid Nasim after having become a surplus officer with effect from 14-5-1979, was reappointed as per order dated 9-8-1981. No doubt, there is a letter dated 9-8-1981 at page 23 in Appeal No, 110(R)/88, to the effect that he was offered a temporary post of Deputy Director (Technical) in Grade-18, in the Technical Wing of the Ministry of Petroleum and Natural Resources, in pursuance of his application dated 26-5-1980. The respondents have placed on record a copy of the Summary of the Establishment Division dated 17-8-1980 showing, inter alia, that the competent authority had approved absorption of Mr. Khalid Nasim as a Deputy Director (Technical) in Grade-18 and such notification of his appointment by absorption was actually issued on 26-8-1981, showing assumption of the charge of the post by him from 19-8-1981. Thus, the respondent's appointment as Deputy Director (Technical) was by way of absorption and not as direct appointment. This way, the objection at S. No, (v) in paragraph 6 of the judgment is also dealt with.
11. The appellants have taken serious objection to the competency of the Office Memorandum dated 7-6-1980 whereunder the surplus staff was absorbed and the respondent Mr. Khalid Nasim claims to have been appointed. It is wrong to contend that the respondents have not pressed in aid the Office Memo. Dated 7-6-1980, but they have placed reliance on that Memo. And have also pressed in aid the provisions of CSR-426. The Office Memo. Dated 7-6-1980 has been attacked on the grounds that it did not have the approval of the President and the learned counsel for the appellants has contended further that even if it had the approval of the President, it was ultra vires the statutory provisions of Civil Servants Act, 1973 and the rules made thereunder. The learned counsel has made reference to a decision of this Tribunal in Sarfaraz Khan Jadoon's case, reported in 1984 PLC (C.S.) 151, holding the view that the said Office Memo. Dated 7-6-1980 did not have legal sanctity. The learned counsel also made reference to other two decisions of this Tribunal holding a contrary view in Appeal No, 129 (K)/85 (decided, on 27-11-1988) and Appeal No, 386 (R)/86 (decided on 20-2-1989). It appears from the Office Memo. Dated 7-6-1980 that its provisions are not repugnant to the provisions of the Civil Servants Act and the rules made thereunder but they are rather in conformity with those provisions. The salient features of the decision incorporated in the said Office Memo. Dated 7-6-1980 are contained in its para. 3 reproduced below: "3. With a view to adjust the surplus officers/staff expeditiously, it has been decided that:--
(a) no post shall be filled either by promotion, direct recruitment, transfer or deputation, unless the phase of adjusting the surplus persons is over;
(b) surplus persons shall be absorbed/appointed against vacant posts, irrespective of promotion or direct quota posts and as far as possible, be adjusted against equivalent posts, keeping in view the qualifications and experience possessed by them as required under Recruitment Rules for the vacant posts;
(c) in case an equivalent post is not available it will be at the discretion of the Establishment Division to offer a lower post, in terms of CSR/426(c), to a surplus person, provided he accepts the same, otherwise he should be dealt with as provided in the rules;
(d) technical posts shall not be filled by surplus persons, possessing nontechnical qualification/experience;
(e) absorption of surplus persons does not amount to initial recruitment, and so the surplus staff is to be absorbed/appointed against suitable vacancies;
(f) surplus persons shall not be appointed on "deputation" as the posts held by them previously would stand abolished, and they cannot be reverted to the abolished posts, on the expiry of "deputation";
(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.
(i) all deputationists who have completed their terms of deputation, should be reverted to their parent offices, within a period of three months from the date these instructions are issued;
(j) these who have been promoted to higher posts but have been declared surplus, and are not absorbed against equivalent posts in the same grade, should be reverted to their substantive post immediately;
(k) any one who refuses to accept nomination against a new post and does not join within the stipulated period, should be given notice for termination of service as required under rules;
(1) Ministries/Divisions/Departments should finally and firmly declare the vacancies, if any, in various categories/grades by 20th June, 1980, so as to absorb/adjust the surplus staff.
Supersession of such information, if any, traced by the Establishment Division shall be dealt with severely; and
(m) those who cannot be absorbed, may be disposed of under the rules (section 11 of Civil Servants Act, 1973 read with CSRs 426 and 436, respectively)."
' In our opinion, none of the instructions, reproduced above, has offended any of the provisions of the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The only seemingly objectionable provision is in clause (b) which lays down that surplus persons shall be absorbed/appointed against vacant posts, irrespective of promotion or direct quota posts; but the quota of the posts is not a statutory provision but it is fixed by administrative/executive order and no encroachment thereby was made on the provisions of the Civil Servants Act and the rules made thereunder. Thus, there was no illegality in the provisions of the Office Memo. Dated 7-6-1980. CSR-426 also provides for absorption of the employees who become surplus on account of abolition of posts. Thus, the appointment of the respondent Mr. Khalid Nasim as a Deputy Director (Tech.) by way of absorption did not suffer from any illegality. It may be mentioned that the decision of this Tribunal in the case of Sarfaraz Khan Jadoon, reported in 1984 PLC (C.S.) 151, has been appealed against in the Supreme Court and its operation has been stayed and the appeal is still pending and we follow the decision of the Tribunal in Appeal No, 129(K)/85 and Appeal No, 386(R)/86. The learned counsel has also contended that even if the respondent were deemed to have been absorbed in the Ministry under the provisions of Office Memo. Dated 7-6-1980, he did not have the benefit of seniority in the light of the decision reported in 1982 SCMR 108 and 1989 SCMR 935. This argument is against the provisions of clause (h) of Office Memo. Dated 7-6-1980 which provides that previous service of the regular personnel shall be counted towards seniority in the cadre/post, if absorbed against an equivalent post. This objection, therefore, does not hold ground.
12. The last objection urged by the learned counsel for the appellants is that the respondent Mr. Khalid Nasim was not holding a regular post and, therefore, he could not avail of the provisions of CSR-426 and reliance has been placed on the cases reported in 1977 SCMR 365; 1982 PLC (C.S.)
94 and 1984 PLC (C.S.) 1187. No doubt, the respondent was appointed as Senior Fuel Economy Officer against a temporary post but his appointment was on regular basis through the Federal Public Service Commission and he was entitled to be absorbed against an equivalent post in keeping with the provisions of the. CSR-426, which provides that if an officer is selected for discharge from service owing to the abolition of a permanent post, he shall have options, unless he is appointed to another post of equivalent nature, of taking any compensation, pension or gratuity to which he may be entitled for the service he has already rendered, or accepting another appointment or transfer to any other establishment, even on a lower pay, if offered, and continuing to count his previous service for pension etc. It, therefore, did not make any difference whether the respondent was appointed against a temporary post or a permanent post, particularly when he was regularly appointed to a post of equivalent nature. The respondent Mr. Khalid Nasim was given due seniority in accordance with the provisions at clause (h) of paragraph 3 of the Office Memo.
Dated 7-6-1980. The cases relied upon by the learned counsel for the appellants had distinguishing features. In the case reported in 1977 SCMR 365 (M.N. Rizvi, P.C.S. v. Province of West Pakistan and others), the appellant was refused seniority for the service he had rendered in a temporary ex cadre post which was subsequently abolished, whereas the respondent herein was, no doubt, appointed against a temporary post but his appointment was made in regular manner and he was absorbed against an equivalent post consequent to the abolition of the temporary post along with many other posts as a matter of Government policy. The other case relied upon by the learned counsel for the appellants is that of Atiya Zulfiqar Malik v. Province of Punjab, reported in 1982 PLC (C.S.)
94. In that case, seniority in service was reckoned from the date of regular appointment to a post and previous service in a leave vacancy was not counted. Herein, the respondent has been allowed seniority from the date of his regular appointment and his previous service has not been counted for that purpose. Of course the third case relied upon by the learned counsel for the appellants In re: Muhammad Abdullah v. Government of the Punjab 1984 PLC (C.S.) 1187 was of similar nature of appointment of the appellant therein, namely Muhammad Abdullah which was through Public Service Commission against a temporary post and his services were terminated on abolition of that post and his claim for absorption against an equivalent post somewhere was rejected by the High Court as well as by the Service Tribunal, Punjab; but there lies subtle difference between the two cases in a way that the appellant therein was not obsorbed by the Government, whereas the respondent herein was absorbed by the Government and the challenge to his absorption has ensued from his colleagues in the department he was absorbed in. After the absorption of the respondent Mr. Khalid Nasim in the Ministry of Petroleum and Natural Resources by the Government, he became entitled to the continuity of his previous service for the purpose of seniority and some other benefits. Thus, the respondent Mr. Khalid Nasim was rightly given benefit of his previous regular service for the purpose of his seniority. The other two cases relied upon by the learned counsel for the appellants viz. 1982 SCMR 108 (Minn Muhammad Afzal v. Government of the Punjab); and 1989 SCMR 935 (Federation of Pakistan v. Rais Khan) are of no avail to the case of the appellants. In the former case, service for the period of ad hoc appointment was not allowed to count for the purpose of seniority, which is not the case herein. In the second case, there is only admission order on the basis of the first case viz. 1982 SCMR 108.
13. For the reasons recorded above, the respondent Mr. Khalid Nasim was rightly given seniority with effect from 30-9-1978 and the appellants who had been promoted to Grade-18 on subsequent dates, have no case to dislodge the seniority assigned to him and their appeals do not succeed and are dismissed as such. No order is made for costs.