M. ILYAS LODHI (MEMBER).---The appellant, Dr. M. Pervez Khan, While serving as Captain in Army Medical Corps, applied for the post of G.D.M.O. POF Hospital, Wah Cantt. And was selected for the said post. He reported for duty on 22-5-1980. Respondent No. 4 Dr. Salahuddin Mahmood also appeared in the same interview and was selected. He reported for duty on 28-5-1980. The appellant and respondent No. 4 were re-designated as ENT Specialist with effect from -29-4-1986 and 31-7-1985 respectively. But redesignation of the appellant was cancelled with effect from 10-5- 1986. Respondent No. 4 was promoted from (B-17) to (B-18) on 12-8-1987 and placed senior to the appellant on the ground that the respondent No. 4 was regularised as G.D.M.O. (B-17) earlier than the appellant. A seniority list of specialists of POF Hospital was issued on 28-6-1990 calling objections from the concerned officers within 30 days. The appellant represented against the said seniority list in which respondent No. 4 was shown senior to the appellant, on 19-7-1990, on the ground that he rendered longer compulsory Army Service than respondent No. 4, and requested that he may be placed senior in the seniority list over respondent No. 4. His request was accepted and he was declared senior to respondent No.4 vide letter dated 19-2-1991. On 14-11-1991, the appellant received a letter in which it was mentioned that on representation by respondent No. 4 for the grant of seniority over the appellant, his case was referred to the D.P. Division who decided to rectify CAO POF Wah Board's letter dated 29-2-1991 and the respondent No. 4 was placed above the appellant in the seniority list. Feeling aggrieved, the appellant filed a departmental appeal to the Secretary, Establishment Division on 30-11-1991 which was not responded to---Hence this appeal on 17-12-1991.
2. The learned counsel for the appellant argued that the impugned order is against law and facts and principles of natural justice, as no show cause notice was issued, it is liable to be set aside. He submitted that he had joined POF in the same batch along with respondent No. 4 and stated that the seniority on fresh appointment counts in order of merits assigned by the Selection Board as per general principle of seniority and having longer compulsory Army Service, he should have been placed senior to respondent No. 4 which had not been done in violation of provisions of compulsory service in Armed Forces Ordinance, 1971. He submitted that there is no mention in the appointment letter about the "regularisation" the prime consideration on which the appellant was placed below the respondent No. 4 in the seniority list. He was appointed on regular basis (B-17), on merit and quota basis in the batch which was available on 5-7-1982, but the delay in regularisation of the appellant was mala fide and without justification in order to pass on benefit to the respondent No. 4 who is a son of an influential officer serving in the POF's Board. He quoted para. III of General Principle of Seniority which is as under:-- "If a person is holding the same post on ad hoc basis, he would count his seniority from the date of recruitment by the DPC."
This date being the same, there is no ground for treating the appellant junior to respondent No. 4.
He indicated that their cases were never referred to the Establishment Division who is the competent authority, the impugned order is unlawful and without jurisdiction and is liable to be set aside. He prayed that the appeal be accepted with all consequential benefits.
3. The learned counsel for the respondent Nos. 2 and 3 argued that the appellant and respondent No. 4 were selected and appointed on contract basis in the year 1980 in the same batch. The service of respondent was regularised on 5-7-1982 against the regional quota of Punjab Province whereas the appellant belonged to N.-W.F.P., he was regularised with effect from 2-8-1983, when a vacancy in the N.-W.F.P. Became available and he submitted that according to the merit position of Selection Board held on 19-5-1980, the appellant was placed at serial No. 5 whereas respondent No. 4 was on top of the merit list. Due to these reasons the appellant has no case and his case was not forwarded to D.P. Division as there was no vacancy in N:-W.F.P. Quota and his lower position of merit than respondent No. 4. As soon as the vacancy became available his case was considered and he attained first position and was regularised with effect from 2-8-1983. In support of his contention, the learned counsel for the respondents presented the following particulars of service record comparing the appellant and respondent which shows that respondent No. 4 is senior to the appellant is all respect.
"Period of Army Service. Appellant Respondent No. 4 15-6-1977 to16-5- 198016-1-1977 to 31-7- 1979 Date of appointment on contract basis 22-5-1980 28-5-1982 Date of regular appointment 02-8-1983 5-7-1982 Date of seniority after counting of Army service vide Armed Forces Amendment Ordinance, 1978.1-11-1980 20-12-1979 Date of redesignation2-1-1990 (Actg. ENT.
Specialist)
22-3-1990 (Permanent basis)31-7-1985 Date of Offg.
Promotion (B-18)2-12-198912-12-1987 (Specialist)
Date of regular31-5-1990 (GDMO)24-5-1988 (Specialist):"
He also submitted that in accordance with the General Principle of Seniority, the seniority of the officers counts from the date of his regular appointment. The case was sent to the Ministry of Defence who informed that decision on regular appointment was earlier considered in the Ministry and was already communicated to the POF's Board in 1984. In the light of that decision Dr. Salahuddin was placed senior to Dr. Pervez as such the contention of the appellant is not correct that the case was not presented to the competent authority before finalisation. He prayed that the appeal be dismissed.
4. The learned counsel for respondent No. 4 argued that the appeal is time-barred as it relates against the order of appointment of respondent No. 4 in B-17 which was made in 1982, represented by the appellant was rejected earlier, as such second representation dated 30-11-1991 was not permissible under the Rules. He also argued that the regularisation of the appellant and respondent No. 4 was made on quota basis as such the respondent No. 4 was declared regular on 5-7-1982 and the appellant on 2-8-1983 when the posts in their relevant quota were became available. On the other points, the learned counsel for respondent No. 4 adopted the arguments advanced by respondents Nos. 2 and 3. He prayed that the appeal be dismissed.
5. We have heard' the parties and examined the relevant record of the Selection Board and come to the conclusion that the appellant and the respondent No. 4 were recommended and selected on the same date by the Selection Committee vide their minutes dated 19-5-1980. However, respondent No. 4 was regularised earlier with effect from 5-7-1982 vide order dated 26-8-1982 which is reproduced as under:-- PAKISTAN ORDNANCE FACTORIES BOARD (Administration Department)
Daily Order Part II No. 5884/1, dated 26-8-1982.
EMPLOYMENT ON REGULAR BASIS -- OFFICERS Ref.-- (i) D.O. Pt. II No. 6288/1, dated 21-12-1978 xxxx xx xxxx xx xxxx xx Employment of the under mentioned officers having been made on regular basis w.e.f. 5-7-1982 in the same grades and on the same pay and allowances which they were drawing on that date, are taken on regular strength of POF Hospital from the same date, in terms of POF Board letter No.4102/139/OF- 1/C/149/Secy., dated 28-9-1975:-- Sl. No.Name DesignationPA No.Grade
1. Dr. Muhammad HumayunGDMO/POF Hospital8691917
2. xx xx xx xx
3. xx xx xx xx
4. xx xx xx xx 5.Dr. Salahuddin MahmoodGDMO/POF Hospital8758717
6. xx xx xx xx
7. xx xx xx xx
8. xx xx xx xx
9. xx xx xx xx
10. xx xx xx xx
11. xx xx xx xx
12. xx xx xx xx
13. xx xx xx xx
(2) they will be on probation of one year, which may be extended as deemed suitable, provided that if no orders are issued after the expiry of the probationary period as fixed above, or as extended, the appointment will be deemed to be held until further orders preliminary probationary report will be rendered on them after expiry of 6 months.
(3) Other terms and conditions of their services will be same as applicable to other regular Medical Officers of POFs."
The above minutes do not indicate that why the appellant had been left over by the Selection Board while regularising respondent No. 4. According to the established rules, the Selection Board should have recorded the reasons, however, during the course of arguments the learned counsel for the respondents has argued that since the earlier vacancy was available from the Province of the Punjab, therefore, respondent No. 4 being domicile of the Province, was regularised, but in support of his arguments no record was submitted to establish his stand.
6. In view of the above, we accept this appeal directing the respondent-- department that the appellant be treated as regular from the date his colleague/respondent No. 4 was regularised and his seniority be fixed according to the rules.
7. No order as to costs.
8. Parties be informed.