' SHAFIUR RAHMAN, J.---Leave to appeal was granted to the Government of Pakistan through Finance Secretary and its functionaries under Article 212(3) of the Constitution to examine the correctness of the consolidated judgment of the Service Tribunal, dated 17-6-1986 whereby an order passed by the Auditor-General on 21-11-1983 was set aside restoring the earlier order, dated 30-10-1983.
2. The respondent No,1 in each appeal (hereinafter referred to as the respondents) are all employees of the Office of the Auditor-General of Pakistan holding at the relevant time the posts of Senior Auditors/Audit and Accounts Assistants in N.P.S.-11. The next post for their promotion was that of Accountant in N.PS.-16. The only method for getting N.P.S.-16 was of passing a departmental examination known as 'Subordinate Accounts Service Examination'. The Ministry of Finance, on the directive of the President of Pakistan, vide its letter, dated 24-7-1973 altered the system of promotion as hereunder:-- "I am directed to say that the President has been pleased to decide that 33% of the posts in the SAS Cadre would be filled in by promotion from UDCs/SGCs/Stenographers on the basis of seniority- cum-fitness. This would apply to each Audit Office/Military Accounts Office separately.
' This would apply to the vacancies occurring on or after 1-7-1973."
3. The implementation of this directive of the President was delayed for one reason or the other and even on 13th of March, 1983 instructions were issued how to give effect to this quota reservation in the matter of appointment to the higher grade, in the following words:- "In order to ensure that this concession does not result in discriminate promotions, it is necessary to link it with vacancies to be filled by candidates who had qualified the examination. The distribution of total number of vacancies in the ratio of 67:33 can be meaningful only if the vacancies are determined, distributed and filled at the same time.
' In the view of Establishment Division it is therefore, necessary that action to fill in 33% vacancies is taken only after the total number of vacancies to be filled, is periodically determined, and either an examination to fill 67% vacancies is held or such vacancies are filled from amongst the panel of qualified persons already available."
4. It was followed by another Office Memorandum emanating from the Finance Division on 18th of August, 1983. This Office Memorandum dealt with other cadres also but its clause (ii) related to the respondents as hereunder:-- "One-third posts of Accountants will be filled by promotion from the Audit Assistants and the Senior Auditors on the basis of their seniority in B-11, while two-third will continue to be filled by such persons who pass the prescribed examination of Accountants."
' In this background on the 30th of October, 1983, the respondents were promoted. Their order of promotion contained a reservation making it tentative and subject to revision. The opening part of the Order is reproduced as hereunder:-- "In pursuance of Government of Pakistan, Ministry of Finance O.M. No,1(1)R-3/83, dated 18-8-1983, on the recommendation of Departmental Promotion/Selection Committee of the Office of the Accountant-General Sindh, Karachi, the Accountant-General Sindh, has been pleased to approve and order to promote/appoint the following Senior Auditors/Audit and Accounts Assistants as Accountant (B-16) i.e, 1050-80-2250 with effect from 30-10-1983 or from the date of resumption of the charge of the post. This promotion is subject to clarification made in respect of the above orders from the Auditor-General of Pakistan or from the Government on receipt of which this order can be revised."
6. On the 21st of November, 1983, the following Order issued by the Accountant-General Sindh, after some communication had taken place between the Auditor-General Office and that of the Accountant-General with regard to these promotions:-- "In accordance with the instruction contained in Auditor-General Office circular memo. No,942- GB.IIl/24-73 Vol. IV, dated 29-10-1983 read with Assistant Auditor-General (P) D.O. Letter No,874- NGE.I/32-83-KW.III, dated 17-11-1983, the promotion order issued vide No,Admn.II-4-22/Vol.-II/173, dated 30-10-1983 is hereby cancelled forthwith retrospectively. The Audit and Accounts Assistants/Senior Auditors promoted vide that office order are restored to their original posts with effect from 30-10-1983."
7. This aggrieved the respondents and after exhausting the departmental remedy they approached the Service Tribunal in the matter. The Service Tribunal upheld their claim by interpreting the relevant orders as hereunder:-- "In our opinion, the interpretation appearing in the letter of 29-1.01983 is not in consonance with the spirit of the letter of 18th August, 1983, which provides that 1/3rd posts of the Accountants will be filled in by promotion on seniority-cum-fitness basis. It does not say that if out of the available vacancies, 2/3rd cannot be filled in by persons qualifying the prescribed examination of Accountants, the promotions against 1/3rd quota shall not be made. The language of the letter, under reference, is clear enough to support the contention of the appellants that whenever vacancies occur, 1/3rd from amongst them shall have to be filled in by promotion. The rider placed by letter of 29-10-1983 that those 1/3rd vacancies should be filled in only when 2/3rd vacancies of other category are also filled in, is against the spirit of the letter of 18th August, 1983. It is no fault of the appellants that the persons who have passed the prescribed examination are not available.
The 2/3rd vacancies shall remain vacant for appointment of persons who duly pass the prescribed examination, while 1/3rd vacancies shall be filled in by promotion as was done in the case of the appellants by order, dated 30-10-1983."
8. The learned counsel for the appellants has in support of the appeals relied on the directive of the President that the reservation of posts for promotion or the basis of seniority shall be given effect to prospectively from 1-7-1973. How it shall be given effect prospectively, was indicated in the instructions given in March., 1983, in August, 1983 and in October, 1983. The promotion of the respondents was made in clear violation of these instructions which had emanated from the Establishment Division. Besides, the promotion order itself was conditional and expressed to be liable to revision in case the promotions were found not to be in conformity with the law applicable.
It was so found, therefore, the interference was justified and did not merit interference.
9. The right of the respondents to claim promotion against 1/3rd quota is based on the order of the Ministry of Finance dated 24-7-1973, i.e,, the directive of the President. It expressly mentioned that reservation of 33% of posts would apply to vacancies which occurred on or after 1-7-1973. The Department had worked out a Scheme for filling up such vacancies, one after the other, as they occurred on or after 1-7-1973. The system approved was of first allowing two vacancies to those who had passed the examination and the third one going to those claiming promotion on the basis of seniority alone. This cycle or system of filling up the vacancies was to continue ad infinitum or till altered. This cycle was approved in order to give effect to the order of the Finance Division/directive of the President approving of the quota and giving it effect to future vacancies. There was nothing offensive in this cycle or system of filling up the promotion posts. Not adopting the same, the Department worked out the quota of posts available for promotion by applying the percentage of 33% and made promotions en bloc on such vacancies. This was found to be violative of the cycle approved by the Department.
10. The learned counsel for the respondents has no objection to the application of such a cycle for promotion as from 1-7-1973, but contends that as soon as the ratio of 33% and 67% is reached, the implementation of this formula will act adversely on promotees on the basis of seniority because they are usually older in age and the vacancies created by their retirement would be shared in the ratio of one to two when in fact it should be replaced by a promotee of the same category as the retired one, if the ratio has to be kept intact.
11. The effort of the respondent seems to be to monopolize in perpetuity 33% posts under the higher cadre of Accountants without looking to the vacancies occurring and the dates from which they occurred. Such an approach, though technically sound and correct would be offensive to the Presidential dispensation of 1973 which gives effect to the application of quota from 1-7-1973 without any alteration in the system during its operational course irrespective of what happens in the higher cadre and who retires. This is in consonance with the recognised principles of service laws wherein a person in the junior cadre cannot claim any vested right in the senior cadre B post notwithstanding the reservation of the posts for him or specified quota of the promotion posts.
12. The Service Tribunal has erred in giving precedence to an Office Memorandum of the Ministry of Finance over the Presidential Order of 1973 and the Order of the Establishment Division of March, 1983 (both reproduced). It is the Establishment Division which under the Rules of Business has the jurisdiction to lay down the terms and conditions of the Civil servants and the Ministry of Finance could not acting independently of the Establishment Division, nor in conflict with the instructions of the Establishment Division, give any instructions on the subject. In the circumstances, the Presidential directive of 1973 and the Establishment Division letter of March, 1983 would have precedence and the cycle system as has been approved therein has to be given effect to because it does not violate any of the vested rights of the respondents.
13. In the circumstances, these appeals are allowed. The judgment of the Service Tribunal is set aside and the appeals filed by the respondents against the cancellation of the Order, dated 30-10- 1983 before the Service Tribunal are dismissed, as the Order was manifestly against law applicable to the case. No order is made as to costs.