1. ' WALI MUHAMMAD KHAN, J.--Muhammad Nawaz and Khalid Mahmood appellants in Civil Appeal No,88 of 1990, through leave of the Court, have challenged the judgment dated 23-8-1989 passed by the Federal Service Tribunal, whereby the appeal filed by Muhammad Ijaz Rashid, respondent No,1, was accepted and the appellant's herein were ordered to be placed junior to him. Similarly, Muhammad Israr and Anjum Bashir Shaikh, appellants in Civil Appeal No,1271 of 1990, feel aggrieved from the judgment dated 24-6-1990 of the Federal Service Tribunal, whereby the appeal filed by Muhammad Munsif, respondent No,3 herein, was accepted and he was declared senior to the appellants. Since both the judgments are based on Para.0 of the General Principles of Seniority (ESTACODE, 1989 Edition, page 227) in which it is provided that promotees shall as a class be senior to those appointed by direct recruitment in the same year, both the cases were ordered to be heard together and accordingly, this single judgment will dispose of both the appeals.
2. ' The facts of the case of Appeal No,88 of 1990 are that Muhammad Ijaz Rashid, respondent No,1, was appointed as Lower Division Clerk on 13-6-1974 and was promoted as Upper Division Clerk temporarily from 15-8-1974 vide Order No,ADMN-2-I/73, dated 15-8-1974, he was subsequently regularised as such retrospectively with effect from 15-8-1974. He was promoted as Assistant with effect from 30-5-1979 against a vacancy of departmental quota which became available in the year 1979. The appellants were appointed respectively on 8-3-1979 and 20-5-1979 as direct recruits against the accumulated vacancies fallen vacant in the years 1977 and 1978 on ad hoc basis as Assistants which was later on regularised retrospectively. In the seniority list prepared by the Department the appellants were placed senior to respondent No,1 against which a representation was made by respondent No,1 to the Director-General T&T but with no success vide order dated 18- 10-1988, whereafter he preferred appeal before the Service Tribunal which was accepted through the impugned order.
3. ' The facts of the case of Appeal No,1271 of 1990 are that the appellants were directly appointed as Assistants on 2-7-1983 and 6-2-1984 respectively, whereas respondent No,3 was initially appointed as Lower Division Clerk on 20-1-1973, promoted as Upper Division Clerk on 2-10-1974 and then as Assistant from 30-1-1983. The quota fixed for direct recruits and promotees admittedly is 50/50. A seniority list was circulated on 28-6-1988 wherein the appellants were placed senior to respondent No,3, who, aggrieved therefrom challenged the same before the Service Tribunal vide Appeal No,288(R)/1988 which was contested by the Department as well as the appellants. The learned Service Tribunal, vide the impugned order, declared him senior to the appellants.
4. ' We have heard the learned counsel for the parties in both the appeals and have perused the respective record of the cases.
5. ' The learned counsel for the appellants vehemently argued that the rule quoted above and relied upon by the learned Service Tribunal was not attracted to the facts of the present cases and that the learned Service Tribunal omitted to consider the relevant rules relating to the fixture of inter se seniority between direct recruits and the promotees vis-a-vis their regular appointment against their respective quotas and have ignored the several reported judgments of this Court in this respect. The learned counsel for the respondents, on the other hand, supported the judgment of the Service Tribunal.
6. ' The question of seniority came up for consideration before this Court in the case of Khushi Muhammad v. The General Manager, Pakistan Western Railway PLD 1970 SC 203 and the broad principle enunciated therein is reproduced as follows:-- "It is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50:50 between the direct recruits and the departmental promotces merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it.
7. There is no rule that confirmation in the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promotee, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade."
8. ' However, at the time of announcement of the above judgment of this Court the Civil. Servants Act, 1973 had not yet been promulgated in which provision for fixation of seniority was made under section 8 thereof. For convenience sake, it is quoted below in extensix- Seniority.--(1) For proper administration of a service, cadre or post, the appointing authority shall cause a seniority list of the members for' the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
(2) Subject to the provision of subsection (1), the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service or cadre, whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.
(4) 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.
9. After the enforcement of the above Act, the matter came up for consideration before this Court in the case of Federation of Pakistan v. Azam Ali 1985 SCM R 386 wherein too, the dispute regarding inter se seniority amongst the direct recruits and the promotees and also their appointment against reserved quotas was in issue. After incorporating the relevant provisions of the Civil Servants Act it was held that the direct recruits appointed against vacancies having fallen vacant prior in time in the reserved quota for direct appointment shall rank senior to those appointed earlier but not against a vacant seat in the reserved quota meant for the promotees. It is worthwhile to reproduce the relevant portion on pages 393 and 394 of the cited judgment:-- "It follows from section 9 of the Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent.
10. In favour of the direct recruits. The departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was. Made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of -the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of rule 7 in isolation is not in accord with the express provisions of section 9 of the Act."
11. The above dictum was followed in subsequent case of Malik Ghulam Rasool v. Government of Punjab 1985 SCM R 1107 wherein it was declared that promotion/appointment of petitioner in that case being on ad hoc basis in excess of quota reserved for promotees and against a post meant for initial recruitment, on arrival of rightful person, he would stand reverted in normal course. In a recent judgment in case Ghulam Ahmad v. Federation of Pakistan 1992 SCM R 957 the above principle, more or less, was reiterated in paras. 10 and 11 of the judgment as follows:-- "10. The words 'to officiate' used in para.121(1)(b) of the Code mean to act or to discharge an office for or on behalf of some other person. Where a reservation or a quota for promotion existed, and as pointed out in para.120 of the Code it is not in public interest to fill that post from outside the prescribed quota, either on account of its non-availability of officers or otherwise, then an officiating arrangement from a residual source is made. As soon as compliance with the paragraph 120 of the Code is possible, the arrangement is brought to an end. In this case exactly that has been happened. That appellant himself was subsequently placed in junior Class I for which reservation existed and was promoted through proper channel. His contention that at one stage the post of Assistant Accounts Officer was upgraded into Class-I post, would not entitle him to claim absorption in a grade Class-I service having its own cadre and grade. The induction into a service as a Class-I Officer is one thing and to be a Class-I post-holder is another.
11. We find that a promotion on the strength of paragraph 121(1)(b) of the Code did not entitle the appellant to claim seniority in the higher promoted grade. He had to wait till in accordance with the reservation and the quota a vacancy became available for him in accordance with the provision made in para.120 of the Code. It happened subsequently. Therefore, the appellant could not claim induction in Grade-18 seniority list in 1976 notwithstanding his officiating promotion under paragraph 121(1)(b) of the Code much earlier. His case like those of his colleagues, notwithstanding the use of the word 'ad hoc' or absence of it, continues to be governed by paras.120 and 121(1)(b) of the Code and by no other provision, read with General Principles of Seniority and section 9 of the Civil Servants Act."
12. ' The learned counsel for the appellants produced photostat of the attested copy of the judgment of the Service Tribunal in Appeal No,17(R)/89 dated 24-1-1989 titled Muhammad Arif Kayani v.
13. Chairman, Federal Public Service Commission and Secretary, Establishment Division and others decided on 14-1-1991 wherein also the question of seniority amongst the Assistants of the Federal Public Service Commission was involved and the learned Service Tribunal basing its decision on office memorandum No,6/1/649-ME dated 2-5-1951, published in the Establishment Manual, Volume II at pages 316 to 318, paragraph 5, came to the conclusion that the parties before it were governed by specific rules of seniority contained in the said memorandum and, in consequence, general principle of seniority that promotees of particular year shall reckon seniority over the direct recruits will not be applicable in their case. These conclusions are in direct contrast with the findings given in the judgments impugned herein.
14. The ratio of the judgments cited above as well as the reasoning advanced in the judgment of Service Tribunal in Appeal No,17(R)/89 and the statutory provisions and the rules is that the direct recruits appointed against reserved seats having fallen vacant earlier in time shall rank senior to the promotees holding officiating appointment though promoted earlier than the direct recruits.
15. ' Applying the above test, Appeal No,88/1990 filed by Muhammad Nawaz and Khalid Muhmood must succeed. As discussed in the earlier part of the judgment, Muhammad Nawaz was appointed on 8-3-1979 and Khalid Mahmood was appointed on 20-5-1979 as direct recruits against vacancies of reserved quota meant for direct recruits having fallen vacant in the year 1977 and 1978 whereas Muhammad ljaz Rashid, respondent No,1, was promoted with effect from 30-5-1979 against the seat meant for promotees which became available in the year 1979. They were rightly shown as senior to respondent No,1 by the department because, not only their appointments were prior in time but the vacancies against which they were initially recruited had fallen vacant prior to the vacancy against which respondent No,1 was promoted and there was no justification for the learned Service Tribunal to upset this seniority simply because the appointments had been made in the same year without regard to the occurring of vacancies in the respective reserved quotas.
16. Accordingly, the impugned judgment of the Service Tribunal in Appeal No,88/1990 is set aside and by restoring the seniority list prepared by the department, the appellants are declared senior to respondent No,1.
17. ' As regards Appeal No,1271/1990, the appellants therein, namely, Muhammad lsrar and Anjum Bashir Shaikh were respectively appointed Assistant as direct recruits on 2-7-1983 and 6-2-1984 whereas Muhammad Munsif, respondent No,3, was promoted as such from 30-1-1983. The minutes of the meeting of the Departmental Selection Committee-II, Law Division, available on page No,4 of the paper book reveal that there were 28 posts of Assistant out of which 14 were already occupied by the directly recruited Assistants and, as such, the vacant posts were to be filled in by promotion and, in consequence, Muhammad Munsif, respondent No,3, was recommended for appointment against one of the vacant posts. Therefore, the appointment of respondent No,3 was regularly made against a vacant seat which was to be filled in by promotion according to their fixed quota of 50 :
50. Consequently, respondent No,3 is senior to the appellants and was rightly declared as such by the Service Tribunal. Appeal No,1271 of 1990 is, accordingly dismissed.