ABDUL RAZZAQ ATHAHIM (CHAIRMAN): --The facts of this appeal, in brief, are that the appellant joined Pakistan Army with effect from 4--11-1965 and rose to the rank of It.-Colonel. He was deputed to Ministry of Foreign Affairs to perform protocol duties with the Federal Government vide Notification dated 3-11-1981 until further orders. He assumed the charge of Director (BPS-19) in that Ministry with effect from 1-11-1981. He continued as Deputy Chief of Protocol. He requested for his permanent absorption/induction in the Foreign Service of Pakistan and the Military Secretary's Branch of G.H.Q. Also recommended his case but the Ministry of Foreign Affairs vide Notification dated 1-2-1992 reverted him back to Army with immediate effect and relieved him of his duties. The appellant made a representation to the Prime Minister of Pakistan who made query as to why the matter of induction of the appellant had been prolonged and his orders were flouted, and conveyed his displeasure. He directed that the appellant be inducted into Foreign Service of Pakistan. Accordingly, the appellant was inducted as Director (B-19)/First Secretary, with effect from 25-3-1992 vide letter dated 30-4-1992 and his seniority in the Foreign Service of Pakistan according to notification was to be determined under the rules. In the meantime, the appellant retired from Army Service on completion of service limit vide order dated 30-5-1992 issued by GHQ, M.S. Branch, Rawalpindi. The appellant made an application dated 4-6-1992 to the Ministry of Foreign Affairs for grant of seniority and status of Counsellor (B-19) with effect from 1-11-1981, the date he joined the Ministry of Foreign Affairs, and it was followed by a reminder dated 20-9-1992 requesting for determination of his seniority in the Foreign Service of Pakistan. In reply, he was informed vide D.O. Letter dated 3-10-1992 that many representations on the subject are pending before the Committee for finalisation of the Provisional Gradation List and the list will be published in due course. The appellant made another reference vide his note dated 11-5-1993 to the Director (Organisation and Rules), Ministry of Foreign Affairs and in reply he was informed vide memorandum dated 22-5-1993 that the matter requires to be tackled m the Gradation Committee meeting and the decision taken by it will be communicated to him in due course of time. Treating this communication as final rejection, he preferred a departmental appeal on 21-6-1993 to the Prime Minister of Pakistan, and no decision has yet been taken thereon, and after the expiry of 90 days period, he preferred this appeal before the Tribunal on 19-10-1993 with the following prayer:-- "-----it is respectfully prayed for and on behalf of the appellant that he may kindly be granted induction/seniority/status of Counsellor (BPS-19) with effect from 1-11-1981 just above Mr. Rafat Mehdi with all consequential back/benefits and/or alternatively as Counsellor with effect from 7-5- 1984 when he ought to have been re-equated as Counsellor. The appellant may, graciously be granted, such other relief/reliefs as may be deemed to be just and fair in the circumstances of the case alongwith costs."
Alongwith main appeal, application for condonation of delay has also been filed.
2. Dr. G.S. Khan, learned counsel for the appellant argued that appellant is holding Grade-19 post as Director in the Ministry of Foreign Affairs since 1-I1-1981, therefore, his seniority is to be fixed from the date of appointment m that grade, under para. 13 of the Office Memorandum dated 8-4-1974, reproduced at S.No. 7, page 1046 (ESTACODE, 1989 Edition), and as such he is to be placed above Mr. Rafat Mehdi at S.No. 54 of 1991 Provisional Gradation List. It is also argued that appellant has been discriminated as on identical facts and circumstances, several Army Officers were given seniority from the date they joined the Federal Secretariat and they are Brig. Zamir Ahmed Khan, Brig. M Ziaul Haq and Brig. Abdur Rashid, The learned counsel relied on 1983 PLC (C.S.) 673; 1985 SCM R 1753 and PLD 1989 SC 508 in support of his submissions.
3. The Ministry of Foreign Affairs has filed parawise comments and given full facts of the case.
Respondent No. 158 Mr. M. Abdul Mateen has also contested the appeal and filed comments. It has been stated that the appellant was sent by the Ministry of Defence on deputation to the Ministry of Foreign/Affairs from the Army in 1981 initially for a period of three years and was granted one year extension till 31st October, 1985. He asked for further extension but that was declined. The appellant made a petition to the Prime Minister of Pakistan on 3-2-1987 for induction in the Foreign Service of Pakistan and the Prime Minister ordered that the appellant should not be disturbed from the present assignment and these orders were conveyed to the Ministry of Defence. The Ministry of Foreign Affairs in May, 1988 submitted a Summaryto the Prime Minister stating that extension in the deputation period of the appellant was not required but the former President General M. Zia-ul-- Haq granted extension to the appellant for two years up to June, 1990. In the meanwhile, the case of the appellant for induction was recommended by Chief Minister of Baluchistan, Governor of Baluchistan and the Federal Ministers. In the year 1990, the Ministry of Foreign Affairs asked the appellant to report back to Army but he again requested to stay in the Ministry of Foreign Affairs till his retirement from Army in June, 1991, which was granted with clear understanding that nofurther extension would be allowed. But the appellant made a request to the Prime Minister through the Governor of Baluchistan and was given extension up to December, 1991. Finally, he was inducted into Foreign Service of Pakistan with effect from 25-3-1992 as Director (B-19) vide Notification dated 30-4-1992 wherein it is also mentioned that seniority in Foreign Service will be determined under the Rules . . .
4. This appeal was heard on 11-1-1994 by a Bench comprising Chairman and Mr. Rana Rifat Saeed, Member when the learned counsel for the appellant and the departmental representative Mr. Jamiluddin Haider, Section Officer, Ministry of Foreign Affairs made their submissions and judgment was reserved. In the meantime, Mr. Hafiz S:A. Rehman, the learned Standing Counsel for the Government made an application on 25-1-1994 and requested that he could not appear on the date of hearing, therefore, he may be heard. The request was allowed and the appeal was fixed for, further arguments on 8-2-1994 before the same Bench with notice to both the parties and we heard Dr. G.S. Khan for appellant and the learned Standing Counsel, Mr. Hafiz SA. Rehman.
5. The contention of the learned Standing Counsel is that the appellant remained in the Ministry of Foreign Affairs by putting political pressures from various quarters from time to time and finally he got his induction into Foreign Service of Pakistan with effect from 25-3-1992 and he has to reckon seniority a from that and not from the date of deputation. He also raised legal objections that the appeal is time-barred and secondly with regard to seniority this appeal is incompetent as neither there is any final seniority list nor any order whether original or appellate in field, which could be appealed against.
6. This case has a long history. The appellant was working in the Pakistan Army, having Personal No. PA-8073 with rank of Major (It.-Col.) when he was appointed as Deputy Chief of Protocol, Ministry of Foreign Affairs, on deputation, by order dated 18-10-1981 issued from the General Headquarters; M.S. Branch, Rawalpindi, and was to be governed by the terms and conditions as laid down in the Ministry of Defence letter No. F.2/25/D- 24(C-IV)/81, dated 14th October, 1981. In pursuance of this notification, the appellant joined the Ministry of Foreign Affairs as Deputy Chief of Protocol (B-19) in the afternoon of 1st November, 1981, till further orders, and such notification was issued by the Ministry of Foreign Affairs on 3rd November, 1981. He was transferred as Director/DCP to Karachi vide office order dated 9-12-1981 and relinquished the charge on 15-12-1981 (F.N.) By telegram dated 19- 6-1982, the appellant was transferred from Karachi to Quetta where he joined on 7th September, 1982. The appellant sent a notice dated. 5-5-1984 to the Director (Organisation), Ministry of Foreign Affairs in which he sought certain clarifications and submitted that he was completing three years of stay m the Ministry of Foreign Affairs without having known the total period of deputation. This position was clarified by M.S. Branch, GHQ, vide note dated 26th May, 1984 addressed to the Ministry of Foreign Affairs that normal tenure of deputation is 2-3 years and that on completion of three years tenure, the Ministry may forward the case for extension of deputation period through the Ministry of Defence in case his services were still required and there was willingness of the officer.
The appellant also made a request on 5th September, 1984 to the Ministry of Foreign Affairs that his case for extension of deputation may be taken up with GHQ and he furnished his willingness certificate as required under the rules. The Ministry of Foreign Affairs recommended his case for extension of one year to the Ministry of Defence. The extension was approved up to 31st October, 1985 by the Ministry of Defence, and the Ministry of Foreign Affairs again requested vide letter dated 30th November, 1985 to extend the period of deputation for another one year. The Ministry of Defence vide letter dated 4-10-1985 informed the Ministry of Foreign Affairs that the appellant completed the maximum period of four years with that Ministry on 31st October, 1985 prescribed for Army deputationist with the Civil Departments vide para. 2(a) of JSI 4/85, and the Ministry was asked to inform whether the officer was available for reversion to Army and his relief is required or not. From this letter, it is clear that up to this period, -his further deputation was not extended. The Ministry of Defence vide Office Memorandum dated 2-1-1986 addressed to the Ministry of Foreign Affairs informed that it was not possible to extend the deputation period of the appellant who had served with them for a period of four years, due to service reasons. It was further requested that the appellant be reverted to Army and intimate whether any relief is required by them. The Ministry of Foreign Affairs vide its U.O. Dated 2-2-1986 requested the Ministry of Defence to reconsider its decision and extend the deputation of the appellant for a further period of one year on the earlier terms and conditions. The case of the appellant was taken up by General (Recd.) Muhammad Musa Khan, the then Governor of Baluchistan with the Foreign Affairs Minister, and the Foreign Minister Mr. Sahabzada Yaqub Khan informed the Governor that the Ministry would be happy to retain the appellant for a further period of one year if the Ministry of Defence is willing to extend his period of deputation. However, the Ministry of Defence by its O.M. Dated 12th February, 1987 forwarded a panel of three officers to be appointed as Deputy Chief of Protocol in place of the appellant but that proposal could not materialise as appellant wrote a D.O. Letter dated 3-2-1987 to the Military Secretary to the Prime Minister in which reference was made to the discussion of the Prime Minister and the Chief Minister of Baluchistan and he claimed that 10% vacancies in Foreign Service of Pakistan are to be filled in from the retired Army Officers. The Chief Minister of Baluchistan vide his D.O. Letters dated 28-6-1986 and 28-10-1986 addressed to the Prime Minister strongly recommended that the case of the appellant be considered for induction into the Foreign Service. The matter was further pursued by the Minister for Planning and Development, Government of Baluchistan vide his D.O. Letter dated 25-2-1987 addressed to the Minister of State for Foreign Affairs, in continuation of the earlier correspondence exchanged by the Chief Minister of Baluchistan with the Prime Minister, referred to above. This position continued as the case of the appellant was being taken up front time to time on the political grounds rather than relying on the rules. However, it is a matter of record that the Ministry of Defence did not extend the period of deputation of the appellant. The Ministry of Foreign Affairs vide its U.O. Note dated 10th June, 1990 informed the Prime Minister's Secretariat that the appellant was on deputation from the Ministry of Defence since October, 1981 and his deputation will expire on 21st June, 1990 and after completion of which he is required to report back to his parent department, i.e. Pakistan Army. It was also stated that there were no vacancies available in the Ministry of Foreign Affairs against which appellant could be accommodated, The Ministry of Defence vide Office Memorandum dated 31st January, 1991 informed the Ministry of Foreign Affairs that the matter of extension of deputation period of the appellant was considered by GHQ and it was decided that appellant may not be given extension and he should either be absorbed permanently in the Ministry or reverted to Army.
In reply, the Ministry of Foreign Affairs vide its O.M. Dated 10th February. 1991 informed the Ministry of Defence that it has been decided to revert the appellant to Army and he was accordingly directed to relinquish the charge and report immediately to the Army. The appellant was also directed by the Ministry of Foreign Affairs vide D.O. Letter dated 10-2-1991 to hand over the charge immediately to the senior most official in the Camp Office, Quetta without awaiting for his successor. The appellant vide his D.O. Letter dated 24-2-1991 addressed to Mr. Abdul Malik Abdullah, Director informed that he had requested the Foreign Secretary to continue him in the Ministry of Foreign Affairs in view of his impending retirement from Army who had assured that he will talk to Defence Secretary and he requested that the Ministry may arrange the said meeting, and he continued to perform duties at Quetta. The result was that he did not hand over the, charge. The Governor of Baluchistan vide his D.O. Letter addressed to the Prime Minister again recommended that the appellant be permanently absorbed in the Foreign Service in the first instance as also desired by the former Prime Minister Mr. Ghulam Mustafa Jatoi in his directive issued to the Foreign Secretary during Care-taker Government; or alternatively the appellant be absorbed in All Pakistan Unified Group (APUG) against Baluchistan quota. The Chief Minister of Baluchistan vide his D.O. Letter dated 12th May, 1991 addressed to the Secretary-General, Ministry of Foreign Affairs also recommended that the appellant may be allowed to continue for another period of 4 yeas at Quetta. The appellant was given extension in his stay as DCP, Quetta till 25th December, 1991 by the Ministry of Foreign Affairs vide U.O. Dated 5-6-1991 addressed to the Prime Minister's Secretariat (Public). Accordingly, the appellant was relieved of his duties with effect from 1st February, 1992 vide notification dated 1st February, 1992, issued by the Ministry of Foreign Affairs. Finally, by Notification dated 13 April. 1992, the appellant was inducted in the Foreign Service of Pakistan and contents of notification areas under:---th "No. R&T 1/8/91.--The competent authority has been pleased to approve the induction of It.-Col. Abdul Latif as Director (BPS--19)/First Secretary in the Foreign Service of Pakistan in relaxation of the rules with effect from 25th March, 1992."
The appellant assumed charge as inductee officer with effect from 25th March, 1992 and such notification was issued by the Ministry of Foreign Affairs on April 19, 1992. The earlier notification issued on 1st February, 1992 whereby the appellant was directed to relinquish the charge from the Ministry of Foreign Affairs was treated as cancelled.
7. From the entire history of this case as given in paragraph 6, the question before us is whether the appellant could be treated as an inductee officer retrospectively since 1981, the year he came in the Ministry of Foreign Affairs on deputation. The appellant, in other words, wants ante-dation of his absorption with retrospective effect with all consequential benefits including seniority over the respondents. The appellant joined the Ministry of Foreign Affairs as a deputationist in 1981 from the Pakistan Army, having alien in his parent department, and, at that time he was not a civil servant in terms of section 2 of the Civil Servants Act, 1973 and the Service Tribunals Act, 1973. This position continued till he was finally inducted into Foreign Service of Pakistan with effect from 25-3-1992 and it is pertinent to mention here that he also retired from Army with effect from 20-5-1992, two months after his induction. He has based his claim on the authority of Sl. No. 7, page 1046 (ESTACODE, 1989 Edition), which provides that seniority in each grade is to be fixed from the date of appointment to that grade. To determine the question of seniority, we will have to revert to the induction of the appellant, the facts whereof we have enumerated in detail in the preceding paragraphs and it has become clear that the appellant got extensions in his deputation period from time to time with the Ministry of - Foreign Affairs, which was beyond the prescribed period as laid down under the rules and there was no induction but continued as deputationist, and before his retirement from Army, he succeeded and was inducted into the Foreign Service of Pakistan. His induction was made in relaxation of the rules by the competent authority. The rules relating to induction/re-employment of Army Officers into the civil service are contained in ESTACODE, 1989 Edition at page 164 under S.No.105, but the case of the appellant is not covered under these rules as neither his case has been processed through the High-Powered Selection Board, nor cleared by the Federal Service Commission, but his induction was made in relaxation of the rules by the competent authority. It is also relevant to mention that the competent authority while passing order approved the induction with effect from 25th March, 1992 specifically mentioning the above date and the approval so granted did not have express retrospective operation. Therefore, for all purposes, 25th March, 1992 is the date of induction for the purpose of reckoning seniority. The contention of the appellant that he should be allowed ante-dated seniority from the date when he was sent on deputation to the Ministry of Foreign Affairs from 1-11-1981 is unreasonable and unjustified as his continuance with the Ministry of Foreign Affairs when he was not a civil servant, was at his own volition and under the circumstances stated above, and not in the public interest, and under no rule he is entitled retrospectively to the benefit he has prayed for.
8. Section 8 of the Civil Servants Act, 1973 regulates seniority of the civil servants and it does not confer any vested right to a particular seniority in such service, cadre or post and seniority is to be reckoned in a service, cadre or post. It may be mentioned here that on the promulgation of the Civil Servants Act, 1973, seniority was to be determined in a service, post or grade, but section 8 of the Act was amended by Ordinance No. III of 1984, and was made effective from 1-7-1983 and in place of word `Grade', the `post' was substituted. Since the provisions of the Civil Servants Act, 1973 are regulator, it shall be deemed that the word `Grade' stood substituted with `post' in the rules made thereunder. Therefore, the contention of the appellant that his seniority is to be reckoned in relation to `grade' is devoid of merit. It thus follows that seniority of the appellant shall be reckoned from the date of induction and that too in a post. On this, we rely on PLD 1990 SC 1013 (Jahangir Mina v.
Government of Pakistan) and the relevant paragraph is reproduced hereunder: ---.... In the absence of seniority being a vested right, the rule-making authority or the appointing authority could for sufficient reasons disturb it. In the present case, this was expressly done in the case of Police Officers, when the President formally approved of the principle that the officers of the Armed Forces inducted into the Police Service of Pakistan shall have seniority of regularisation from the date of their induction and not from the date of regularisation."
9. The appellant has also submitted that he has been discriminated when similar benefit has been allowed to some other Army Officers, namely Brig. Zamir Ahmed Khan, Brig. M. Ziaul Haq and Brig.
Abdur Rashid, for this it would be suffice to say that facts of induction of those officers into civil service are not before us and each case has its own merits and particularly in the circumstances that we have not touched the question of legality of the appellant's induction into Foreign Service of Pakistan, and as such there is no question of discrimination. The cases relied upon by the learned counsel for the appellant have distinguishing features and are not attracted in this case.
10. Coming to the legal objections raised by the respondents' Advocate Mr. Hafiz S.A. Rehman, the appellant seeks placement of his name above the name of Mr. Rifat Mehdi as BPS-19 Officer in the Provisional Gradation List of Officers of Foreign Service of Pakistan (October 1, 1991) and there is no final seniority list in the field which could be appealed against, nor is there any order whether original or appellate, as required under section 4(1) of the Service Tribunals Act, 1973 for preferring an appeal before the Tribunal. As such, the appeal is not competent. Furthermore, the appeal is also time-barred. After his induction, the appellant for the first time made a representation dated 4-6-1992 to the Chairman, Gradation Committee, Ministry of Foreign Affairs for grant of seniority and status of Counsellor (B-19) with effect from 1-11-1981, followed by a reminder dated 20-9-1992, and in reply he was informed vide D.O. Letter dated 3-10-1992 that the matter of finalising the Gradation List is under consideration and will be published in due course. He made another representation on 11-5-1993 and the Ministry of Foreign Affairs vide Memo dated 22-5-1993 informed him that the matter of Gradation List will be finalised in the meeting of the Gradation Committee and decision will be communicated in due course. The appellant treating this letter as rejection order preferred appeal to the Prime Minister of Pakistan on 21-6-1993, which remained undecided. He filed this appeal before the Tribunal on 19-10-1993. Under the rules, the appellant should have preferred a departmental appeal within thirty days from the reply of the respondent Ministry dated 3-10-1992 in case he was not satisfied. However, he filed departmental appeal on 21- 6-1993, which itself was time-barred and there being no final rejection order to that, this appeal filed on 19-10-1993 is incompetent too as laid down by the Supreme Court in the case of Chairman, PIAC v. Nasim Malik, reported in PLD 1990 SC 951. The appellant has filed application for condonation of delay in which facts of making representations after representations and departmental appeal have only been stated but there is no plausible explanation for condonation of such a long delay, and the application deserves no consideration and is rejected.
11. For the reasons recorded above, the appeal fails on merits as well as on legal points and is dismissed with costs.
12. RANA RIFAT SAEED (MEMBER)---The appellant had joined the Ministry of Foreign Affairs with effect from 1-11-1981, while he was on active service in Pak Army. His deputation/tenure in the respondent Ministry had initially been fixed for three years vide letter dated 26-2-1984. The appellant had been making departmental representations for his induction in the respondent Ministry with effect from his date of joining i.e. With effect from 1-11-1981 or after his initial deputation/tenure for three years had expired i.e. With effect from 1-11-1984. Finally the appellant was inducted/absorbed in the respondent Ministry with effect from 25-3-1992 as Director/1st Secretary (B-19) vide letter dated 30-4-1992. He had accordingly submitted the instant appeal with respect to final order dated 30-4-1992 communicating non---acceptance of his departmental representation/appeal.
13. It was well-known that induction/absorption should take effect from the date of such orders i.e. With effect from 25-3-1992 in appellant---s case. Had he been given seniority from the date of arrival in the Ministry of Foreign Affairs i.e. 1-11-1981 or from the date of completion of his initial deputation tenure after three years i.e. 1-11-1984, he would have felt satisfied. Examples and precedents were there for and against the contention of the appellant i.e. The Ministries had been giving induction and seniority to some Defence Officers with effect from the dates of their arrival viz.: (i)Brig. Qureshi Aslam Hayat, had retired from Army with effect from 1-10-1981, but inducted/given seniority in Secretariat Group with effect from 18-1-1978 i.e. The date of joining.
(ii)Brig. A. Rashid, had retired with effect from 1-9-1981, but given induction seniority with effect from 7-10-1978, date of his joining Federal Secretariat, and (iii)Brig. Zia Zameer had similarly been given induction and seniority with effect from date of joining, and (iv)But the appellant had joined M/O Foreign Affairs with effect from 1-11-1981, but given induction/seniority at a belated stage with effect from 25-3-1992 i.e. After 11 years.
There were also some cases `quoted by the respondents, where induction/seniority had been given to the Defence Officers with effect from the dates of such orders, as was the case of the appellant.
But in any case the respondent Ministry should have consulted Establishment Division for settling out the case of the appellant under the relevant rules/practice in vogue.
14. From the facts and merits of the case, after hearing the parties and to my assessment, remand of the case to the respondent Ministry is lawfully expedient and necessitated, because the respondent Ministry for sake of justice and fair solution of the case, had not consulted Establishment Division which was a competent forum to give advice on such matters of personnel and establishment disorder. I am, therefore, in favour of remand of the case to the Ministry of Foreign Affairs with the above observations to consult the Establishment Division and decide the matter within next four months.
ORDER OF THE TRIBUNAL Byvirtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the appeal is dismissed in terms of the opinion of the Chairman.