RANA RIFAT SAEED (MEMBER).---The appellant, Habib-ur--Rehman, had been aggrieved of the seniority given to Dr. Tufail Ahmad, Qureshi, respondent 5 who in fact had been promoted later than the appellant. The learned counsel had stated that both the appellant and respondent 5 had been appointed through FPSC a$ B-18 officers in the Ministry. Although respondent 5 had not even cleared Matriculation, F.A. And BA. And only had managed to get LL.B. Degree, but he had been appointed through the FPSC by the Ministry B-18 officer and placed senior to the appellant. This was violation of the rules, as the candidate who was neither Matric nor FA. Nor BA. And only had managed to get the Degree of LL.B. Through back door how could he be appointed in B-18 and how could he be placed senior to the appellant who was qualified candidate for all purposes. The learned counsel for the respondent Ministry as well as respondent 5 had clarified that this matter to ascertain the qualifications at this stage was irrelevant and beyond the jurisdiction of the learned Tribunal, as the FPSC and respondent-Department had, after' proper scrutiny and examination of the academic record of the', respondent 5, had appointed him as Assistant Chief in B-18 in Ministry of Religious Affairs during 1975-76. Had [lie appellant any grievance against recruitment/appointment/seniority of respondent 5, he should have made a representation in 1976 to agitate the matter and get proper relief. But the appellant had kept silence and never represented against this issue which at present was irrelevant to be discussed in 1994 i.e. After 18 years.
2. The learned counsel for the appellant had brought out at Bar that during absence of respondent 5, i.e. On deputation to Nigeria from 1981 to 1986, the appellant had been selected by CSB-11 and approved for promotion by competent authority as Director B-19 with effect from 6-11-1985 vide Order dated 20-11-1985. Respondent 5 who had remained in Nigeria from 28-10-1981 to 17-11-1986 i.e.. Over 5 years, his service under FR 18 stood terminated or in case of lenient/compassionate consideration by the Government, his seniority as per OM of the Establishment Division of 25-6- 1984 was to be brought on the static seniority list, because he had remained abroad for more than 5 years. In any case respondent 5 could not be placed senior to the appellant in B-18 and 19. The learned counsel went on stating that after return from Nigeria, the case for promotion of respondent 5 had been considered by the Board in November 1988 and deferred to wait for one more ACR and also for another promotion vacancy for respondent 5 was available, when his score under "Overall Assessm ent" was 66 marks and under "Quality and output of Work" was 59 marks which was less than 60 marks. As such his case was not to be deferred by the Board, but superseded. Later on, respondent 5 had been considered for promotion and promoted as Director B-19 with effect from 18-3-1991. So, respondent 5's seniority as Director should reckon with effect from 18-3-1991 i.e. The date of promotion as Director and appellant's seniority as Director should reckon with effect from 6-11-1985 i.e. The date of his promotion as Director B-19. However, it was against all canons of justice and fairplay that respondent 5 who had stayed abroad for more than 5 years was given seniority over and above the appellant with effect from 6-11-1985 after his promotion with effect from 18-3-1991 i.e. After 6 years. This was unjustified.
3. The provisional seniority list was issued by the Ministry on 7-10-1991, wherein respondent 5 was shown senior to the appellant who had made a representation on 12-10-1991. A final seniority list later on was issued on 8-7-1993 and again respondent 5 had been shown senior to the appellant who had again made a representation on 19-8-1993. But there was no fruitful outcome of the representation and it was not accepted vide Ministry's memo. Dated 2-9-1993. He had, therefore, submitted the instant appeal to the Tribunal with the prayer as under:-- "For the reasons stated above, it is respectfully submitted that this appeal may kindly be accepted and it may be declared that--
(a) The seniority of the; appellant stands already determined by the Federal Service. Tribunal in Appeal No.223(R) of 1987; he is senior to respondent No.5 in the cadre of Directors (BPS-19) in the Ministry of Religious Affairs.
(b) The appellant having been approved and appointed long before the approval and appointment of respondent No.5 as Director (BPS-19), is senior to him in the cadre of Directors and respondent No.5 having not been approved by DPC on two occasions even after the promotion of appellant could not be placed senior to the appellant.
(c) Respondent No.5 was not qualified to be appointed as Assistant Chief/Deputy Director in the Ministry of Religious Affairs for lack of qualifications and experience required for the post. His appointment being ab initio, void he cannot claim seniority- in the cadre of Directors; or for that matter in any other cadre.
(d) Because respondent No.5 having remained absent for a period over five years from his regular post had ceased to be in service of Pakistan and his continuance in service is illegal.
(e) The seniority list circulated by the Government on 8-7-1993, is without lawful authority; and contrary to facts and law.
(f) The appellant is senior to respondent No.5 in the cadre of Directors in the Ministry of Religious Affairs.
(g) Any other relief which this Honourable Tribunal deems fit may also be granted to the appellant with costs.
(h) The Honourable Tribunal may be gracious enough to observe that for different bogus claims made by respondent No.5 and different bogus certificates produced by him before different authorities, he is liable to be criminally prosecuted in an appropriate Court of law and is also to be departmentally dealt with in accordance with the instructions in S.No.20, paragraph 3, at pages 82- 83 of Estacode 1989."
4. The learned counsel for the appellant had summarised stating that when the ACR marks of the respondent 5 were less than 60, the Board in its meeting held in November 1988, could not defer the respondent 5, but superseded; as had been indicated in paras. 8 and 9 of the judgment in Appeal No.176(R) of 1991 (Farts Rehman v. Government of Pakistan and others). He had also referred to the following judgments in support of his contention:-- (i)1975 SCMR 457-459, (ii)1976 SCMR 48-50 and (iii)O.M. Of Establishment Division of 25-6-1984.
Whereby after spending more than 5 years abroad, respondent 5 could not be kept on the main seniority list, but on the static seniority list. Further, he had not qualified Matric, FA. And BA. And he could not be appointed as Director B-19 and could not be placed senior to the appellant who had been promoted as Director 6 years earlier during 1985, whereas respondent 5 had been appointed and promoted in 1991.
5. The learned counsel for the respondent-Ministry and respondent 5 had clarified that he was senior as B-18 officer to the appellant and during his foreign service, on deputation to Nigeria, he could not be considered by the Board for promotion, otherwise he could be appointed/promoted earlier than the appellant and called back to join the Ministry. This could not be done and till he remained there from 28-10-1981 and joined the Ministry on 17-11-1985 i.e. Only after 19 days above 5 years. Those 19 days were considered/treated as joining time by the Federal Government and as such the application of FR-18 was not relevant and static seniority list under O.M. Of 25-6-1984 was not applicable. He, therefore, had maintained his seniority in the department record. After return from abroad, the Board had considered him twice and had deferred him before he was actually promoted as Director with effect from 18-3-1991. Therefore, the Ministry could not change the deferment of the Board into supersession and relegate his seniority to place him below the appellant. This was all done keeping in view the fairplay and justice and respondent 5 had been given his original seniority of B-18 and placed above the appellant as Director, because he had been deferred and not superseded. As such the appeal should be dismissed as having no merit and substance.
6. Under the aforementioned circumstances, we find that although respondent 5 had been promoted with effect from 18-3-1991 and appellant with effect from 6-11-1985, but respondent 5 had rightly been given seniority as B-19 officer, because during this period of his foreign service, he had been deferred and not superseded. The departmental order, therefore, does not require any interference to change the seniority of respondent 5 and to place him below the appellant. The appeal, therefore, fails as being devoid of merit and substance and is accordingly dismissed.
7.No order for costs.