ABDUL RAZZAQ A. THAHIM (CHAIRMAN).--Mr. Zahur Iqbal Khan has preferred this appeal for determination of his seniority vis-a-vis respondents 3 to 5 Mrs. Jameela Naeem, Babar Ali Mirza and Wali Ahmad Khan.
2. Briefly the facts of the case are that the appellant joined the Population Planning Council in Grade-17 on 21-2-1967. He was promoted as Deputy Director (Grade-18) by order dated 23-6-1972 and by subsequent order dated 10-5-1977, he was granted pro forma promotion in Grade-18 w.e.f.
1-7-1968 retrospectively. According to the appellant, the dates of promotion of the respondents in Grade-18 are as under:--
(1) Mrs. Jameela Naeem13-11-1972
(2) Mr. Babar Ali Mirza 1-9-1970
(3) Mr. Wali A. Khan 25-5-1971 In December, 1976, the constesting respondents were promoted to Grade-19 while the appellant was ignored. The appellant challenged the promotions of the respondents by way of representations dated 2-1-1977 addressed to the Secretary, Population Division; 23-10-1977 to the CMLA and 5-1-1978 to the Secretary, Population Division. However, by order dated 10-5-1977, the appellant was granted pro forma promotion in Grade-18 w.e.f. 1-7-1968 subject to the condition that his promotion would not entitle him to any financial benefit but will be allowed to count his seniority in Grade-18 w.e.f. 1-7-1968. His pay was also fixed in Grade-18 with reference to 1-7-19168 but without arrears. It was further stipulated in the order that the appellant will not claim promotion to Grade-19 over the officers who had been promoted to Grade-19. In response to his representation for promotion to BPS-19, he was informed by Deputy Secretary (Admn.), Population Division vide letter dated 30-1-1978 that his case will be considered alongwith others on the availability of the vacancies and the organisational changes in the set-up. (This letter has not been filed by the appellant). Similar reply was also sent under letter dated 21-5-1978. The appellant thereafter made another representation dated 30-7-1978 to the Joint Secretary, Population Division, followed by another representation dated 26-6-1983. In the meantime Population Welfare Planning Perogramme (Appointment and Termination of Service) Ordinance No. XIV of 1981 was promulgated and according to section 8 of the, Ordinance seniority of the officers of the Council or the Board in a particular grade was protected from the date of appointment to that grade.
According to the appellant, his seniority was intact under the said Ordinance. The appellant continued agitating his matter of promotion and seniority and it was in the year 1984 that he was promoted to Grade-19 vide notification dated 17-9-1984, effective from 1-8-1984. Since the grievance of the appellant was partly redressed, he made a representation to. The Secretary, Population Division dated 21-1-1986, requesting for pro forma promotion in Grade 19 w.e.f. 10-12-1976 which was rejected vide Memo. Dated 10-3-1986. The appellant made yet another representation dated 22-3-1986 addressed to the Secretary, Population Division followed by reminder dated 12-7- 1986. He then filed this appeal before the Tribunal on 16-7-1986.
3. The learned counsel appearing for the appellant vehemently urged that the appellant was granted pro forma promotion in Grade-18 w.e.f. 1-7-19681 but conditions laid down therein that he will not claim promotion to Grade-19 over the officers who had been promoted to Grade-19 was totally unjust, illegal and unlawful. It is submitted that under section 8 of the Ordinance, his seniority was kept intact as such his seniority had to be determined from the date of regular promotion/appointment in a particular grade, and the appellant was admittedly senior to all the respondents, and he could not be denied promotion to Grade-19 retrospectively, when his juniors had been promoted.
4. The respondent 'Government have filed objections. They have raised preliminary objections that since the appellant claims benefit from 10-12-1976 when he was not a civil servant, therefore this Tribunal has no jurisdiction to entertain his appeal, in view of the Supreme Court judgment in CMP No.103-R of 1986 in Civil Review/Petition No. 27-R of 1986 Syed Ghulam Raza v. Federation of Pakistan. Further the appeal is also time-barred and is also hit by section 4(1)(b) of the Service Tribunals Act. 1973, as the matter pertains to fitness/promotion to a particular post. On merits, it has been stated that the appellant on his appointment as Research-cum-Evaluation Officer in the Impact Survey Project, severed his connections with the Pakistan Family Planning Council and his lien was not retained in the Council as all the posts under the Council were temporary. He was appointed as Assistant Director on transfer from the Impact Survey Project on 1-9-1970 in the Family Planning Council vide order dated 25-9-1979. Therefore, the appellant could not claim seniority over the respondents who stood promoted to Grade-18 during 1970, 1971 and 1972 on different dates and had become senior consequent to the appellant's leaving the Council at his own accord. The appellant was granted pro forma promotion in Grade-18 w.e.-- 1-7-1968 vide office order dated 10-5-1977 with the clear understanding that he will not claim promotion to Grade-19 over the officers who had already been promoted to Grade-19 w.e.f. 10-12-1976. It has further been stated that the appellant was not approved by the Central Selection Board for promotion to Grade-19 on 31-5-1984 but his case was deferred due to some observations made by the Tribunal against him in Appeal No. 386(L) of 1982. He was, however, subsequently promoted to Grade-19 w.e.f.1-8-1984.
5. Respondent No. 3 Mrs. Jameela Naeem has contested the appeal and filed objections through her Advocate Mr. KM. A. Samdani wherein preliminary objection with regard to jurisdiction has been ,raised in view of the Supreme Court decision in the case of Syed Ghulam Raza v. Federation of Pakistan and the decision of the Tribunal in Appeal No. 17(R) of 1983 filed by Mr. Saad Subhani; and the bar of section 4(i)(b) of the Service Tribunals Act, 1973. On merits it has been stated that the appellant was not promoted as Deputy Director in Grade-18 but was appointed on temporary basis. It has further been stated that respondent No. 3 was promoted to Grade-18 w.e.f. 1-7-1968 while the appellant's date of promotion is 23-6-1972 and as such respondent No. 3 was senior and the appellant cannot claim seniority over her. Respondent No. 3 was further promoted to Grade-19 in December, 1976 whereas the appellant on 1-8-1984 and in all circumstances the appellant is not senior to the respondent No. 3.
6. Respondent No. 4 has also filed objections. He has also raised the objection that the appeal is not competent and his relief claimed in this appeal pertains to a period when the appellant was not- a civil servant and as such the appeal is not maintainable. The point of limitation has also been raised and reliance has been placed on the cases reported in 1974 SCMR 373; 1978 SCM R 367 and PLD 1979 SC 856. On merits, it has been stated that the appellant on his appointment as Research-Evaluation Officer had severed his connections with the Council on 13-5-1969 and his lien also was not retained in the Council. However, he rejoined the Council after some time. He was granted pro forma promotion w.e.f. 1968 which was not permissible under the law. It has further been stated that the appellant was allowed promotion in Grade-18 from 1-7-1968 by order dated 10-5-1977 which contained certain conditions but the respondent No. 4 stood promoted to Grade- 19 before the aforesaid dated viz. 10-5-1977. The appellant had lost his seniority in Grade-17 having ceased to hold his lien in the Council and his pro forma promotion in Grade-19 by order dated 10- 5-1977 was illegal. The appellant rejoined the Council as Assistant Director in Grade-17 on 1-9-1970 and he was entitled t" reckon his seniority in Grade-17 from that date. Therefore, the claim of the appellant is misconceived and not maintainable.
7. The appeal has been resisted on behalf of respondent No. 5 Mr. Wali A. Khan, and submitted that he adopts the arguments of other respondents.
8. This appeal leas a long history as stated in the facts. The appellant had been making representations for his grievance from time to time and finally he succeeded in the year 1977 and by order dated 10-5-1977 he was granted pro forma promotion in Grade-18 w.e.f. 1-7-1968. The order reads as under:-- "Mr. Zahur Iqbal Khan, Deputy Director, Population Training Centre, Lahore is granted pro forma promotion to Grade-18 (former Senior scale) w.e.f. 1-7-1968, subject to the condition that his pro forma promotion would not entitle him to any financial benefit but will only be allowed to count his seniority in Grade-18 w.e.f. 1-7-1968. He will have his pay fixed in Grade-18 with reference to 1-7-1968 but will not receive any arrears.
In consequence of the above pro forma promotion, Mr. Zahur Iqbal Khan will not claim promotion to Grade-19, over officers who have already been promoted to Grade-10 In view of this order, the appellant, on one hand, has been granted pro forma promotion retrospectively in Grade-18 wte.f. 1-7-1968, but certain conditions have been imposed that he will not be allowed the benefit of arrears on his pro forma promotion and will also not claim promotion to Grade-19 over the officers who had been promoted to Grade-19. This order was not challenged by the respondents because perhaps their rights were not to be affected by this order. On the other hand, the appellant challenged the conditions laid down in this order by making representations. It is argued on behalf of the respondents that at the time when the appellant was allowed pro forma promotion he was not a civil servant. May be so, but the case of the respondents also falls in that category, as in pursuance of the Ordinance of 1981, the employees of the Council or the Board were made civil servants. But the point before us is whether the conditions stipulated in the order dated 10-5-1977 were legal and binding on the appellant.
8. During pendency of the appeal, Respondent No. 4 filed a Miscellaneous Application in which it was prayed that appeal of the appellant Zahoor Iqbal Khan be dismissed being premature. The point involved in that petition was that on 1-1-1992, a final seniority list was issued which has not been challenged. The application was ordered to be heard alongwith appeal. The contention of appellant is that by issuing a new Seniority List, his position already taken in appeal has not been changed. Therefore, this point would not affect the merits of appeal.
9. The respondents were promoted in BPS-19 in the year 1976, whereas in the impugned order appellant was given seniority in Grade-18 retrospectively, with effect from 1st July, 1968 by office order, dated 10th May, 1977. To that extent, this order has reached finality. The four respondents were appointed between 1970 to 1972. The position as regards appointments and promotion of the appellant and the respondents is as under:
(1) Mr. Zahoor Iqbal Khan (pro forma promotion) BPS-18 from 1-7-1968.
(2) Mr. Roshan Mahmood1-10-1970
(3) Mr. Babar Ali Mirza1-11-1970
(4) Mr. Wali A. Khan25-5-1971
(5) Mrs. Jamila Naeem September, 1972.
10. The respondents were promoted in B-19 in 1976 while the appellant was promoted in 1984, and his seniority has been reckoned from 1984. As such respondents stand promoted earlier and also senior to appellant.
11. Appellant was informed by Ministry of Health and Population Welfare vide Memo. Dated 21-5- 1978 that his case for promotion will be considered only after finalisatiion of the reorganization.
Appellant is being deprived of seniority on one of the grounds that in 1976 he was not a civil servant and it can easily be repelled on simple ground that in the years 1970 to 1972 .Even at the time of promotion to B-19, the respondents were also not civil servants. They all became civil servants by virtue of Ordinance in the year 1981. The pay of appellant was fixed in the light of order, dated 10th May, 1977 while granting him pro forma promotion from 1968. It is to be seen whether this condition that he will not claim. Promotion to B-19 over officers who were already promoted was in conformity with law. The reply is simple that this condition is void as he has been given pro forma promotion from 1968 with seniority in Grade-18 and his pay was fixed accordingly. Therefore, by giving pro forma promotion with seniority and fixation of pay from 1968 in Grade-18 his right for regular promotion has been recognised and grant of pro forma promotion carries with it all the ancillary benefits e.g. Seniority as well as pay fixation etc. He cannot be deprived of this right even if he gives consent. But appellant had not given consent and has been struggling for his right since then and he had been informed from time to time that his promotion was under consideration. He cannot be given financial benefits, but according to this order he is made senior to respondents and is entitled to promotion on merit from the date on which respondents were promoted to B-19.
The Population Division in their comments vide para. 5 have stated that they did not make any promotion during the period 1-5-1977 to 31-5-1984 when the re-organisation of the Population Planning Programme was going on. It has further been stated that the case of the appellant was considered for promotion alongwith others by the Departmental Selection Board but due to certain observations by the Tribunal made in Appeal No. 386(L) of 1982 (Niaz Muhammad Sheikh v.
Population Division), the case of the appellant was deferred. It may be mentioned here that appellant filed Civil Petition No. 31-R of 1986 in the Supreme Court and the Supreme Court by order dated 3-2-1987 accepted the appeal and expunged the observations of the Tribunal and accordingly the appellant was promoted to Grade-19 in 1984. It, therefore, follows that the appellant had been treated as civil servant all along by the respondent department and they cannot now deviate from their, stand at such a belated stage, and such a controversial issue has recently been settled by the Honourable Supreme Court in the reported cases Civil Appeals Nos.
292 and 293 of 1991 filed by Miss Sarfraz Khurshid and Abdul Waheed Qureshi v. Secretary, Population Division, decided on 19-1-1993. The relevant paragraph of the judgment reads as under:- - "4. From these provisions it is obvious that the Federal Government had transferred field activities of the Population Welfare Programme to be performed by the Provincial Governments. The Provincial Governments are thus required to perform such of the functions and affairs of the Federal Government as were provided for under the Ordinance. The employees of the Federal Government transferred under the Ordinance 'of 1983 were to serve with the Provincial Government relating to that part of the field activities which were transferred by the Federal Government. In these circumstances, they remained the employees of the Federal Government and did not lose their status of being a civil servant of the Federal Government. By mere transfer under the provisions of the Ordinance' of 1983 they could not be treated as employees or the civil servants of the Provincial Government. Article 146 of the Constitution provides that the Federal Government with the consent of the Government of a Province may entrust either conditionally or unconditionally to that Government functions in relation to any matter to which the executive authority of the Federation extends. The Province or officers or authorities who are conferred with powers under the Article shall be: paid by the Federation as. Agreed and in case of disagreement determination is to be made by an arbitrator appointed by the Chief Justice of Pakistan. This also demonstrates that the transfer by the Federal Government to the Provincial Government of any activities and its civil servants for performance of such duty with the Province does not lead to the conclusion that the officers discharging their duties in relation to the transferred activities became the civil servants of the Provincial Government. We are, therefore, of the view that both the appellants continue to be the civil servants of the Federal Government and the Federal Service Tribunal has the jurisdiction to entertain and decide their appeals."
12. Appellant was promoted in 1984 when he was civil servant and the condition laid down in the order that he will not claim promotion over respondents is void and arbitrary when he has been allowed seniority, he is entitled to all benefits according to law. In this context, we would rely on the judgment of the Honourable Supreme Court reported in PLD 1992 SC 875 (Muhammad Masihuzzaman v. Federation of Pakistan). In that case, appellant had not completed 25 years' service qualifying for pension and he was retired from a certain date It was held by their Lordships that such order of retirement was illegal and void and the following observations were made: " .... The action taken in this case was contrary to the provisions of the Interim Constitution of 1972 and notwithstanding that it was taken on the request of the party subsequently questioning it, the fact remained that unless the relevant provision of the Constitution itself was amended, the direction to retire the appellant contrary to its term, irrespective of the question whether the partv relying on its terms had itself prayed for deviation therein, would be ultra vires, null and void."
In these circumstances; we feel it appropriate and imperative, in the interest of justice and fair- play, to remand the case to the competent authority to re--examine the view points of both the parties, in the light of the above observations and according to law decide the matter within three months of the communication of this order. With these observations, the appeal stands disposed of, with 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.