ABIDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. Firozuddin Ahmad is working as Member (Finance) SUPARCO, Karachi, in BPS-21. He has challenged the seniority of respondent No. 2 Mr. Muhammad Zubair Kidwai, in BPS-21.
2. The relevant facts for the purpose of disposal of this appeal are that the appellant after qualifying the competitive examination held by the FPSC in the year 1962 for filling the posts in the former CSP cadre, was selected and joined as Probationary Officer on 1-1-1964. He was inducted into the Secretariat Group in the year 1973. He was promoted to BPS-20 with effect from 22-3-1980.
Respondent No.2, Mr. Muhammad Zubair Kidwai joined Government service on 2-11-1964 and was promoted to BPS-20 with effect from 27-11-1980 but due to mistake his date of promotion was wrongly shown in gradation list as 28-6-1987 this fact has not been disputed by Advocate of appellant. A Gradation List of BPS-20 officers was issued in the year 1987 wherein the name of the appellant appeared at S.No. 67 whereas respondent was shown at S.No. 87, i.e. Junior to appellant.
In the subsequent Gradation List as on 1-4-1990, the appellant's name finds place at S.No. 36 while the respondent's name is at S.No. 50. The cases of the appellant and respondent No. 2, alongwith others were placed before the Central Selection Board at its meeting held on 27-2-1988 for consideration for promotion to BPS-21. Both of them were not promoted due to less quantification, and superseded. However, respondent No. 2 made representations and finally he was promoted to BPS-21 with effect from 1-1-1991 and his supersession of 1988 was converted into deferment. The appellant was also promoted to BPS-21 with effect from 11-11-1991 and in view of his deferment in the year 19X1, he was assigned seniority below Mr. Syed Wasiq Shah in the seniority list of the Secretariat Group by letter dated 10-5-1992 and his seniority position was reflected in the Gradation List of the Officers of the Secretariat Group BPS-19 to 22 as on 15-2-1993 wherein respondent No.2, Mr. Kidwai was shown at S.No. 38 and the appellant at S.No.58. The appellant made a representation against the Gradation List on 31-5-1993 agitating the placement seniority of respondent No. 2 as senior, which was followed by another reminder dated 20-9-1993, to which he was informed vide Establishment Division Memorandum dated 25-10-1993 that seniority of Additional Secretaries and Secretaries is determined from the date of continuous regular officiation in Grade-21 or 22 as the case may be. Being aggrieved, the appellant preferred an appeal to the Prime Minister of Pakistan on 24-11-1993 which was not responded therefore he has preferred this appeal before the Tribunal on 24-3-1994 under section 4 of Service Tribunals Act, 1973.
3. We have heard Mr. Manzoor Ali Khan, the learned counsel for the appellant at length. He has given the history of the entire case and his argument is that the very supersession of the appellant in the year 1988 was illegal as wrong quantification was placed before the Central Selection Board and the appellant was entitled to promotion to BPS-21 at that time but this point was not considered by the Establishment Division, therefore, direction be issued to review his case in the light of the quantification and justice be done to the appellant.
4. Mr. Niaz Ahmad Khan, the learned Standing Counsel has appeared for the Government as well as or behalf of respondent No. 2. He has raised legal objection that the Tribunal has no jurisdiction to go into the promotion cases; and relied on 1992 SCM R 1869; the necessary parties have not been joined as respondents to which he has referred to 1989 SCM R 695; and that the appeal is time- barred as the cause of action if any arose to appellant when he was superseded in 1988 but he did not file appeal and has come before the Tribunal when Gradation List of BPS-21 officers has been issued in 1993. It is argued that seniority has rightly been assigned from the date of regular appointment as respondent No. 2 was promoted to BPS-21 earlier than the appellant.
5.Mr. Ahmad Yousuf Ali Rizvi, the learned counsel appearing on behalf of respondent No.2 has also argued and has taken us back to the Memorandum dated 10th May, 1992 when the case of the appellant was examined and he was given seniority below Mr. Syed Wasiq Shah, but he did not agitate about his seniority over respondent No.2, at that time and now at this belated stage, he cannot claim seniority over the respondent No.2. He also adopted the arguments of Mr. Niaz Ahmed Khan.
6. The facts as given by the learned counsel for the parties are admitted so far as the dates of promotions to BPS-20 and BPS-21 of the appellant as well as respondent No.2 are concerned. The only grievance of the appellant is that due to wrong qualification, he was superseded in 1988 but in the memo. Of appeal, he has challenged the order dated 25th October, 1993, which reads as under :-- "Government of Pakistan Cabinet Secretariat Establishment Division No.2/24/93-CP.2 Islamabad, the 25th October, 1993 MEMORANDUM SUB:- GRADATION LIST OF THE SECRETARIAT GROUP (BPS-21) AS ON 15-2-1993 Reference letter dated 2,0-9-1993 of Mr. Firozuddin Ahmad a BPS-21 officer of the Secretariat Group, on the above subject.
2.The seniority rules determining the seniority in the Secretariat Group as explained in the Establishment Division's O.M. No.2/2/75-ARC, dated 12-4-1976 is recapitulated below:-- ADDITIONAL SECRETARY AND SECRETARIES The seniority of Additional Secretaries and Secretaries will be determined from the date of continuous regular officiation in Grade--21 or 22., as the case may be."
(Sd.)
(Fayyaz H. Zaidi), Section Officer(CP.)
Mr. Firozuddin Ahmad, Member(Finance), Suparco Headquarters Sector 28, Gulzar-e-Hijri, Off University Road, Karachi-75270."
The appellant's seniority vis-a-vis respondent No 2 was determined on the basis of the date of regular officiation in BPS-21 and the admitted position is that the case of respondent No.2 was considered by the competent authority and his supersession was converted into deferment, as such his promotion was made with effect from 1-1-1991. The appellant has not challenged earlier promotion of respondent No.2. There is nothing on record that the appellant ever made any representation against conversion of supersession into deferment of respondent No.2. The appellant has come up in appeal against the Gradation List issued in 1993 whereunder respondent No.2 has been shown senior to the appellant, but the fact is that both the appellant and respondent No.2 were superseded in the year 1988. The respondent No.2 tried to convert his supersession into deferment by making representations and ultimately succeeded in getting promotion to B-21 with effect from 1-1-1991. The appellant also got promotion with effect from 11-11- 1991. Under the rules, seniority in a particular cadre or post is determined from the date of regular continuous officiation, and that has correctly been assigned to both of them. Had the appellant agitated his grievance against the conversion of respondent No.2 supersession into deferment, and persuaded the competent authority to get his supersession converted into deferment earlier than respondent No.2, then the case would have been otherwise but appellant never challenged these orders and in no circumstances, can get his seniority determined over respondent No.2.
When the ante-dation of promotion has not been ordered and supersession into deferment has not been converted and the respondent No. 2 has been promoted to B-21 earlier than the appellant, the appellant has hardly any case for going in detail into the question of wrong qualification etc. Pertaining to a matter of 1988 and it is a six years old case.
7. Mr. Niaz Ahmad Khan, the learned Standing Counsel has rightly argued that this Tribunal cannot go into the question of fitness for promotion of a civil servant. The jurisdiction of the Tribunal is limited to the extent of eligibility and consideration. The appellant and respondent No. 2 were both eligible for promotion to 3-21 in 1988 and both of them were not found fit and none of them challenged this cause before this Tribunal and at this belated stage when both of them have been promoted to B-21, it would rather be unfair if we re-open the case and upset the order of the competent authority when both of them were satisfied and remained silent and did not approach the Tribunal at that relevant time. It is also pertinent to mention here that in the impugned Gradation List, the appellant's name finds mention at S.No. 58 and respondent No. 2 is at S.No. 38.
According to the appellant he seeks seniority over respondent No. 2 and as such there are so many officers in between the respondent No. 2 and the appellant, viz. S.Nos.37 and 39 to 57 and in case he succeeds in appeal, they will be definitely affected by the decision of the Tribunal and they being necessary parties have not been impleaded as respondents in this appeal, and this legal point is fatal and the appeal also fails on this legal objection in view of the Supreme Court decision reported in 1989 SCM R 695.
8. The appeal is also time-barred as respondent No.2 was promoted to B-21 on 1-1-1991 and that is the terminus a duo for determining the seniority, and the appellant did not challenge the promotion of respondent No.2, and has filed this appeal against the Gradation List issued on 1993, whereas the tie between the appellant and the respondent No.2 relates to seniority which has necessarily been determined on the date of regular appointment to B-21 viz. 1-1-1991. As such the appeal is clearly time-barred and there is no application for condonation of delay on the record on behalf of the appellant 9.For the foregoing reasons, the appeal fails on legal points as well as on I merits and is accordingly dismissed with costs.
10. Before parting with the judgment, it may be observed that Mr Manzoor Ali Khan, the learned counsel for the appellant while arguing the appeal made an application for summoning of the following documents: (1)Minutes of the meeting of the Central Selection Board held on 27-2-1988.
(2)Full correspondence between Prime Minister's Secretariat and the Establishment Division, which resulted in order dated 19th Jan., 1993 of Prime Minister, issued by Additional Secretary (HA) P.M.
Secretariat.
It is regretted to point out that the appellant was supposed to make such request for summoning of abovementioned record much earlier than the date of hearing as the record is available with the Establishment Division and the Prime Minister's Secretariat and had to be brought from Islamabad.
The notice for regular hearing was issued to the appellant on 22-6-1994 and the case was fixed for regular hearing on 5-7-1994 and we have heard the learned counsel for the parties, therefore, at such a belated stage, we are not inclined to allow such application, especially when the appellant did not challenge his supersession of 1988 before the Tribunal and he remained satisfied, nor has he agitated the matter of his ante-dation of promotion to BPS-21. Therefore, the application is misconceived and has been rejected by separate order.
While arguing the Appeal No.47 (K)/94, the appellant through his Advocate moved an application and prayed that minutes of meeting of Central Selection Board for the year 1988 and correspondence between the Prime Minister's Secretariat and the Establishment Division be summoned. The grievance of appellant in appeal is with regard to seniority and not of promotion.
The documents are not relevant. The application is rejected.