ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --Appellant Mr. Shaharyar Mughal has preferred this appeal against the Notification dated 20-5-1989 issued by the Establishment Division whereby the respondent No.3, Mr. Zakaria Khan Babar has been allowed seniority in B-17 retrospectively from 1- 2-1977 as Assistant Director.
2. Briefly the facts of this case are that the appellant joined as Assistant Director (B-17) in the FIA through Federal Public Service Commission with effect from 24-6-1978. The respondent No. 3 joined service as Administrative Officer in the Malaria Eradication Department, Government of Baluchistan in Grade-16, with effect from 4-5-1970. He applied for the post of Director (B-19) in FIA but since he was holding a Grade-16 post and direct appointment in Grade-19 was not possible, he was appointed as Assistant Director (B-17) in FIA from 1st February, 1977. His case for regularisation was referred to the FPSC and the Commission accordingly approved his appointment in Grade-17 on regular basis as Assistant Director with effect from 21-11-1979. Accordingly, the question of his seniority was decided in consultation with the Establishment Division. He was given seniority with effect from 21-11-1979. The appellant alongwith three others was promoted to Grade-18 as Deputy Director vide Notification dated 28-4-1988 and the probationary period expired with effect from 20th September, 1989. As such, he became eligible for confirmation in Grade-18. With the promotion of the appellant to Grade-18, respondent No. 3 filed two separate Appeals Nos. 149 (L) of 1988 and 308 (L) of 1988. In the meantime, the Establishment Division issued a Notification dated 20-5-1989 giving seniority to respondent No. 3 as Assistant Director in B-17 with effect from 1-2-1977 and this Notification was produced along with the comments filed by the Establishment Division in Appeal No.149 (L) of 1988. Since the appellant's seniority was disturbed by this Notification he preferred departmental appeal on 17-7-1989, which did not bear any fruit and ultimately he filed this appeal on 19-10-1989 before the Tribunal.
3. The learned counsel appearing on behalf of the appellant argued that the appellant being regular appointee of FPSC of 1978, is senior to respondent No.3 who was appointed on regular basis by the Commission with effect from 1979. It is argued that seniority assigned to the appellant has been changed without notice, which could not be done according to principle of locus poenitentiae. He referred to PLD 1969 SC 407. He also argued that appointment of respondent No.3 could not be regularised retrospectively.
4. The respondents 1 and 2, i.e.: the Secretary, Establishment Division and the Secretary, Ministry of Interior, have filed joint comments. They have stated that appointment of respondent No. 3 in Grade 17 was regularised by referring his case to the FPSC with effect from 1-2-1977 and such Notification was issued by the Establishment Division on 20-5-1989. His seniority was fixed under section 8 (3) of the Civil Servants Act, 1973 being a direct recruit. According to section 8 of the Civil Servants Act, 1973, seniority is not a vested right and therefore, the appellant cannot have any grudge against the respondent No. 3 who has been given his due seniority in B-17 and for that no notice was required.
5. The respondent No. 3 who is present in person has argued the appeal himself. He submitted that prior to this, he filed Appeals Nos. 149 (L)/88 and 308 (L)/88 claiming seniority against his colleagues and the appellant was also respondent in those appeals. The Notification dated 20-5- 1989 was issued by the Establishment Division during the pendency of those appeals. The appellants as one of the respondents did not choose to contest the aforesaid appeals, and both appeals were decided on merits also and as such he cannot now agitate the same grievance by way of this appeal. Under law of estoppel, he is estopped by his own conduct and he has no case to agitate.
6. The learned counsel appearing for the respondents 1 and 2 submitted that the Government has filed comments and they may be perused for final adjudication of the appeal.
7. The appellant was appointed directly in B-17 through FPSC with effect from 2a-6-1978 whereas the respondent No. 3 who was working in B-16 in the Government of Baluchistan, was taken as Assistant Director (B-17) with effect from 1st February, 1977. The case regarding regularisation of respondent No. 3 was referred to the FPSC and his services were regularised from the date he was taken in the FIA i.e.1-2-1977. Initially, the appellant was given seniority to which the respondent No. 3 filed representations and the matter was under process when the appellant alongwith others was promoted to Br18. The Notification regarding regularisation of the service of respondent No.3 was issued by the Establishment Division on 20-5-1989. Consequently, he was given seniority under section 8(3) of the Civil Servants Act, 1973. The appellant w a: promoted in the year 1988 on the basis of earlier seniority list in which the respondent No. 3 was shown junior at that time and was not considered for promotion. In the comments, it has been stated by the Department that respondent No, 3 was allowed seniority as Assistant Director (B-17) whereas the appellant was Deputy Director in B-18. Fixation of seniority in the cadre o1 Assistant Director does not give the appellant any cause of action to agitate before the Tribunal. In para 16 of the comments, it is further stated that the appellant has not been deprived of his seniority and is reckoning his seniorit3 on promotion as Deputy Director from the date of regular promotion under section 8 of the Civil Servants Act, 1973. It is also stated that seniority is not I vested right. The Notification by which the respondent No. 3 has been giver seniority is to be examined independently. Under section 2 (2) of the Civil Servants Act, 1973, an appointment, whether by promotion or otherwise, shat be deemed to have been made on regular basis if it is made in the prescribes manner.
Section 5 of the Act lays down that appointment to an. All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected Witt defence, shall be made in the prescribed manner by the President or by person authorised by the President. In the present case, the appointment of respondent No. 3 has been regularised through the Federal Public Service Commission and his appointment in B-17 is earlier than the appellant who was directly appointed in 1978. As such, no injustice has been done to the appellant. Moreover, respondent No. 3 filed two Appeals Nos. 149 (L)/88 and 308 (L) in which there was dispute of seniority between the respondent No. 3 and one Mr. Khadim Hussain. In both the appeals, the appellant Mr. Shaharyar Mughal was party. He was properly served but he did not contest. The facts in those appeals are a little bit different as question of seniority of Mr. Khadim Hussain was challenged by Mr. Zakaria Khan (respondent No. 3) on the ground that his case does not fall in the cadre of Legal Cell, but there are observations in the judgments that Mr. Zakaria Khan was given seniority by the Establishment Division with effect from 1-2-197'7. The appellant should have agitated and taken the point that seniority of respondent No. 3 was wrongly fixed by the Establishment Division but he failed to do so. Although that decision does not directly affect the appellant, yet he should have put up his case before the Tribunal.
8. The upshot of the above discussion is that respondent No. 3 was appointed earlier in B-17 as Assistant Director with effect from 1-2-1977, while the appellant was taken in service in B-17 with effect from 24-6-1978. The appellant has been promoted in B-18 and according to the comments filed by the Department this has no effect on his future career as the seniority is being questioned in B-17 which stage the appellant has since crossed. Therefore, this appeal has no merit and is accordingly dismissed, with no order as to costs.