AJMAL MIAN, J: --This is an appeal, with the leave of this Court, against the judgment dated 10-5- 1990, passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as 'the Tribunal', in Appeal No. 45 (K) of 1986 filed by the appellant against the grant of seniority to respondent No.4, dismissing the same.
2.Leave to appeal was granted to consider the following questions: "(i)Whether rationally and logically, clause 'C' of Annexure I (General Principles of Seniority) to instruction at Serial No. 158 (Page 152 at 154 of ESTACODE, 1983), can be given effect to only if the instructions at Serial No. 195 page 181 of ESTACODE have peen faithfully observed and not, as in this case, where they' have been manifestly violated to lead to a patently unjust and un equitable result?
(ii)Whether the promotion of respondent No.3 made in violation of the aforesaid instruction at page 181 ibid, having the force of the rule can be held to be regular for matching seniority with the petitioner?"
3. The brief facts are that the appellant and respondent No.4 Mrs. Yasmeen Abbasi, were appointed as Examiners of Patents, Grade-16, by way of selection by the Federal Public Service Commission in the year 1972. The appellant's position in the merit list was above that of respondent No. 1 It appears that the above post was upgraded to Grade-17 through notification dated 17-9-1986 with effect from 1-2-1984. It also appears that a vacancy in Grade-18 in respect of Assistant Controller in the promotion quota occurred in November, 1980, whereas, a vacancy in the above post in direct recruitment quota occurred in the year 1982. It also appears that in the department, there were two incumbents who were senior to the appellant and respondent No.4, but, they were on deputation with some other department. It is the case of the department that because of the above reason the department was in correspondence with the above two incumbents and, therefore, the above vacancy could not be filled in by promotion. However, the vacancy which had fallen vacant from the quota of direct recruitments was advertised. The appellant applied for the same and was selected and appointed as an Assistant Controller in Grade-18 with effect from 15-5-1983, vide notification dated 26-5-1983. It further appears that during the same year the proceedings of the departmental promotions were also finalised and respondent No.4 was selected and she was appointed as Assistant Controller in Grade-18 on -24-8-1983. The department assigned seniority to respondent No.4 over the appellant by Office Memorandum dated 30-10-1985.
4. Against the above order, the appellant filed the above Service Appeal, which was dismissed by the above judgment. After, that, he filed a petition for leave to appeal, which was granted to consider the above questions.
5. In support of the above appeal, Mr. Kanwar Mukhtar, learned counsel for the appellant, has vehemently urged that the department acted against instruction in not filling in the vacancy in the promotion quota as it had occurred in November, 1980, before filling in the vacancy in the direct recruitment quota and, therefore, promotion of respondent No.4 was illegal. In support of the above submission, he has referred to the following instructions from ESTACODE, appearing at serial No. 195: "Sl. No. 195: Sequence in departmental promotions and direct recruitment.
Reference.Establishment Division Office Memorandum No. 15/38/52-SEII, dated 22nd June, 1953 (Annexure).
The replies received from the Ministries and Divisions on the suggestions contained in the above Memorandum have been considered and, in order to ensure that candidates rejected by the Federal Public Service Commission in open competition or selection should not be absorbed in vacancies meant for departmental quotas, it has been decided that the following procedure should be adopted in future:
(i) Where a cadre has definite quotas reserved for departmental promotions and direct recruitment, promotions against the departmental quota should be made first and the posts reserved for direct recruitment filled later. These orders, however, will have no effect on those cadres where recruitment is made solely by direct recruitment or where all appointments are made only by promotion;
(ii) Necessary provision regarding the above should be made in all recruitment rules already framed or framed hereafter;
(iii) in the case of isolated posts, a roster should be maintained in each Ministry and Division to ensure the observance of the prescribed percentage for departmental promotions and direct recruitment:"
6. It is true that according to the above instructions, promotions against the departmental quota should have been first filled in before filling in the quota of direct recruitment. But, to our view, this will not vitiate the promotion of respondent No.4, as she cannot be punished for any alleged lapse on the part of the department.
7. Mr. Niaz Ahmed Khan, learned counsel for the respondents 1--3 has submitted that the reason for the delay was that two of the senior most incumbents of the past from which promotion was to be made, were on deputation in. Some other department and, therefore, the department was making efforts to ascertain their wishes. Be that as it may, in our view it is not necessary for us to go into the above controversy. The Tribunal has relied upon the following instructions appearing at serial No. 154, in ESTACODE relating to seniority inter se between the promotees and direct recruits: "SI. No. 154. Preparation of seniority list grade-wise.---According to sub-section (1) of section 8 of the Civil Servants Act, 1973, seniority lists of all persons employed under the Federal Government are required to be prepared. After promulgation of the All-Pakistan Services (Change in Nomenclature) Rules, 1973, and the Civil Servants (Change in Nomenclature) of Services and Abolition of Classes) Rules, 1973, the former regularly constituted services ceased to exist. Seniority lists of all officers employed under the Federal Government including Officers belonging to the former regularly constituted Services, should, therefore be re-drawn grade wise. In the case of appointments made by promotion, seniority in a particular grade would be determined according toy subsection (4) of section 8 of the Civil Servants Act, 1973, namely, according to the date of regular appointment to a post in that grade, subject to the proviso that civil servants selected for promotion to a higher grade in one batch shall, on their promotion, retain their infer se seniority in the lower grade unless superseded. As for seniority between departmental promotees and direct recruits in grades where posts are filled both by promotion and direct recruitment, the rules already prescribed in the general principles of seniority in Establishment Division O.M. No. 1/16/69-- D.II, dated 31st December, 1970 shall continue to be followed. According to these rules officers promoted to a higher grade_ in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year."
8. It is evident from the above-quoted instructions that the officer promoted to a higher grade in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year.
9. However, it was vehemently urged by Kanwar Mukhtar Ahmed that since the appellant was senior in Grades 16 and 17 to respondent No.4, the above seniority could not have been altered by the department. It will suffice to observe that the appellant, instead of waiting for his turn for promotion, opted to apply against the quota of direct recruitment for obvious reason that he might have not been promoted against the quota for promotion as there were two incumbents senior to the appellant and respondent No.4. The above point has already been decided by this Court in the case of Fazal-i-Qadir and others v. Secretary, Establishment Division and others PLD 1988 SC 131, the relevant portion of which reads as follows:-- "As regards the contents of the Office Memorandum the Tribunal has somewhat been influenced by subsection (4), section 8 of the Civil Servants Act to the exclusion of the other provisions of the same section. A look at the whole section 8 makes it clear that subsection (4) deals with the seniority of the promotees inter se. If the principles were to prevail over all others then subsections
(2) and (3) become redundant. In fact, it is subsection (2) which governs the inter se seniority of direct recruits and the promotees and for that room has been left for the rule-making authority to make provision. As a Principle of General Policy by various Office Memoranda and at times by framing express rule, it has in almost all the cases provided that promotees of the same year shall take precedence in the matter of seniority over those joining on initial recruitment in the same year irrespective of their date of promotion or joining. The rule on which the Service Tribunal has relied, namely, of 1965 also made a similar provision and it happens to be the past as well as the present practice incorporated in the rules to recognize such a deserved advantage for the promotees of the same year. There is no conflict with any statutory provision. On the other hand, this principle derives its strength and efficacy from subsection (2) of section 8 of the Civil Servants Act."
10. There seems to be no infirmity in the judgment rendered by the Tribunal and the appeal is, therefore, dismissed. However, there will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.