' NOOR MUHAMMAD MAGSI (MEMBER).---Appellant Akhtar Hussain, presently working as Assistant- in-Charge in the Economic Affairs Wing, Islamabad, has preferred this appeal under section 4 of the Service Tribunals Act, 1973 against the Seniority List dated 21-3-1994 whereby he was placed under the contesting respondents Nos. 2 to 6.
2. The facts of the case, as stated by the appellant are that he was appointed as Assistant on temporary basis in the Economic Affairs Division; with effect from 20-5-1967. He was regularized as Assistant with effect from 22-6-1972 vide order dated 10th March 1976, and then was confirmed as Assistant with effect from 22-6-1972 vide order dated 12th March 1976. He was then promoted as Assistant-in-Charge with effect from 24-3-1991.
3. A seniority list of Assistant was circulated vide Memorandum dated 10th March, 1976 which includes seniority lists (Part I and Part II). Appellant was assigned seniority in Part-I (Person holding regular appointment against permanent posts) at serial No, 47, whereas respondents Nos.2 to 6 were assigned seniority in Part II (Persons appointed temporarily on ad hoc basis) at serial Nos. 33, 32, 35, 36 and 25 respectively. In November, 1978 seven more Assistants were regularized vide order 27-11-1978 whereas the names of the respondents Nos. 2 to 6 were not included in this Office Order.
Respondents Nos. 3 to 5 namely Ali Muhammad Malik, Muhammad Saeed-I and Abdul Razzaq, were adjusted for regular appointment in the Grade of UDC against direct quota vacancies with effect from 22-6-1972, 23-5-1973 and 31-12-1973 respectively. They were confirmed from the same dates vide Office Order dated 11-3-1976. Respondent No,2 Mr. Nasir Ahmed Swati, was regularised and confirmed as UDC with effect from 12-3-1976. Respondent No,6 Mr. Ataullah Usmani, was regularised and confirmed as UDC with effect from 18-10-1977.
4. On 1st June, 1982 another seniority of UDCs and Assistants was issued, in which the abovementioned respondents were shown senior to the appellant. Appellant was shown at S.No, 27 in that list. Copy of that list was not provided to the appellant as he was on deputation to PARC at that time. However, that list was declared invalid by the Federal Service Tribunal vide its judgment in Appeal No, 216(R) of 1984. The judgment is dated 5-1-1987. The matter was referred to the Establishment Division, who vide their U.O. Dated 30-12-1991 opined "that no final seniority list was issued with the approval of the competent Authority after 1982, the seniority list of 1976 holds in the field." They also directed the Department to bring the persons appointed after 10-3-1976 as Assistant, on that list from the date of their regular appointment i.e, promoted/initial appointment.
Accordingly a draft seniority list of Assistants was issued vide Circular dated 25-4-1993, in which appellant was shown at S.No, 7 whereas respondents Nos. 2 to 6 were shown at S.Nos. 28, 24, 30, 34 and 36 respectively.
5. In the final seniority list issued on 21-3-1994 the appellant has been shown at S.No, 9, while respondents Nos. 2 to 6 have been shown at SI. Nos. 1 to 4 and 6 respectively. No roster of vacancies was supplied with the list and no reasons for changing the seniority position were given. The appellant made a representation on 6-4-1994 but no response has been received from the Department. Hence this appeal before the Service Tribunal.
6. The contention of the appellant is that there is no legal basis for revision of seniority list of Assistants finalized in March, 1976. The department could only settle the cases of persons appointed/promoted on regular basis on or before 10-3-1976 and could not disturb the seniority list already finalised. There were only 86 posts of Assistants as per roster accompanied the draft list of 1993. Thus, 15 Assistants have been adjusted in excess of sanctioned strength by omitting 16 permanent Assistants. Unless those Assistants are permanently absorbed in higher posts their names cannot be deleted from the list of Assistants. They will remain in Part II of the list. Appellant was regularised and confirmed as Assistants with effect from 22-6-1972, whereas respondents 2 to 5 have been confirmed as UDC in 1973 and 1976 and respondent No, 6 in 1977. Respondents Nos. 2 to 6 were promoted as Assistant on temporary basis, they cannot claim seniority over direct recruits unless they are regularised. He further alleged that respondents were nominated by the Establishment Division for appointment as LDC in November, 1966. They could not be promoted on regular basis as UDC before 3 years and as Assistant before 5 years. In the final seniority list of UDC, the names of respondents Nos. 2 to 6 are not mentioned at all. Unless their promotion as UDC is regularised, their eligibility for promotion as Assistant cannot be determined. As the respondents are still temporary, they cannot claim seniority over the appellant in the grade of Assistant. Even if the respondents are regularised for promotion as Assistant, it shall be from the date not earlier than the dates of their regular promotion as UDC. The appellant therefore, filed this appeal with the prayer that the seniority list of Assistants issued in March 1994, may kindly be set aside in so far as the relative seniority of the Assistant vis-a-vis respondents Nos. 2 to 6 is concerned and consequent benefits be allowed to the appellant.
7. The respondents' Department in their written objection raised preliminary objection that the appeal is not maintainable as the matter has already been decided by the Honourable Tribunal in Appeal No, 216(R) of 1984. The appeal is also time-barred as relating to seniority list of 1976. They have stated in their comments that the appellant was directly appointed as Assistant with effect from 20-5-1967 on purely temporary basis subject to replacement by Central Public Service Commission qualified candidate. His appointment as Assistant on regular basis and confirmation with effect from 22-6-1972 and treating him senior to respondents Nos. 2 to 6 (FPSC qualified and exemptee officials) in the seniority list of 1976, was not correct, because that seniority list of 1976 was subsequently found administratively erroneous. That list was revised on the representations of Central Public Service Commission qualified officials. Thus the seniority of the appellant in the Seniority List of 1976 became defective and illegal as it was not drawn up in accordance with the rules/instructions on the seniority. Respondents Nos.2 to 5 namely Naseer Ahmad Swati, Ali Munawar Malik, Muhammad Saeed-I and Abdul Razzaq were appointed as LDC on qualifying the FPSC examination. They were promoted as UDC and then Assistants in prescribed manner on the recommendations of the DPC. As regards, respondent No, 6 namely Attaullah Usmani, he falls in the category of the officials who were appointed on purely temporary basis upto 31-12-1964 and were exempted from post-entry Ministerial Services Examination vide Establishment Division's O.M. Dated 22-6-1972, relevant para. Is reproduced below: "(ii) The temporary employees appointed to the different ministerial grades on or before 31-12-1964 are exempted from the post entry Ministerial Services examination to be conducted by the FPSC.
' The services of those officials including that of respondent No, 6 (Ataullah Usmani) were therefore, to be regularised and seniority fixed in their respective grades with effect from 22-6-1972 in terms of Establishment Division's O.M. Dated 27-11-1974. The appellant falls in the category of the officials appointed on purely temporary basis after 1-1-1965. The services of such officials including that of the appellant are to be regularised with effect from 31-12-1973 subject to completion of a minimum of 5 years' satisfactory service in their respective grades in terms of Establishment Division's O.M.
Dated 27-9-1974. Therefore, the appellant would stand junior to respondent No, 6 in all respects.
8. With regard to Seniority List of 1976, the respondents Department in their comments have stated that in the Seniority List of 1976, the FPSC nominees were shown junior to the purely temporary employees, therefore, that seniority was revised in 1982 by rectifying the mistakes. However, seniority list of 1982 was declared invalid by the Service Tribunal as it was not signed by the competent Authority. In April 1993 a draft seniority list was issued but the same mistake committed in 1976 list, was again repeated in the Draft Seniority list. Thus the appellant got senior position at S.No, 7 illegally. As regards roster of vacancies, it is usually 'maintained only for calculation of vacancies in a cadre distributing the posts to direct and promotion quota in accordance with the ratio prescribed from time to time. It has no relation with the seniority; in view of the judgment of the Service Tribunal in Appeal No, 62(R) of 1982. The mistakes committed in the seniority list of 1976 and again repeated in the Draft List of 1993, have been rectified in the seniority list issued on 21-3- 1994, which has been finalised by the Seniority Committee and circulated with the approval of the competent Authority. No vested right is created on account of wrong promotion, confirmation etc. As a result of wrong fixation of seniority. Seniority list generally includes all the officials appointed/promoted in a cadre even they are on deputation. They could not be excluded from the list unless they left the cadre. So the working strength of Assistant does not exceed the sanctioned strength.
9. As all the orders issued on the basis of seniority list of 1976 having been found erroneous and defective, the appellant has no vested right to claim his confirmation with effect from 22-6-1972.
Respondents Nos. 2 to 5 were nominated by the FPSC as LDC in 1966 against regular posts. The condition of Completion of 3 years service for promotion as UDC and five years service for promotion as Assistant was fixed only for the matriculate LDCs who were appointed on purely temporary basis without qualifying FPSC Examination and not possessing the educational qualification of Intermediate for promotion as UDC and Assistant respectively as per instructions issued by the Establishment Division vide O.M. Dated 20-5-1969. Therefore the plea of the appellant regarding completion of 3/5 years condition is not correct.
10. Appellant Akhtar Hussain was appointed on purely temporary basis on 20-5-1967 subject to replacement by FPSC's nominee. His appointment was made much later than Mr. Shahabuddin whose appeal was dismissed by this Tribunal on the point of seniority. Thus in view of the judgment of the Tribunal, the appellant also cannot claim seniority over respondents Nos.2 to 5. He has been correctly "assigned seniority at serial No, 9 in the seniority list of 1994.
11. Other contesting respondents, in their written objections, have stated that since the appellant has been appointed as Assistant on dire& basis, therefore, he cannot as a matter of right claim seniority over those who have been appointed through FPSC. They relied on an identical case of Mr. S.Shahabuddin Ahmed, temporary Assistant, decided by this Tribunal wherein it was held that direct appointee could not be placed senior to those who have been selected through FPSC or have been promoted from the lower post as per formula laid down at Sl. No, 46 of Chapter XX of the Establishment Manual Vol. II. They further stated that no doubt, the names of respondents did not appear in the seniority list of 1976 that was one of the reasons that the omissions were pointed out by the respondents, which were rectified in the list of 1982 and then in 1994. They also referred judgment of the Service Tribunal in Appeals Nos. 230 to 235(R)/1985 which were decided in favour of those appellants. Therefore, the appellant cannot claim seniority over the respondents.
12. We have heard the parties at length and gone through the record. The plea taken by the appellant is that his name was at Sl. No, 47 in the seniority list of 1976 (Part I of regular appointee) and respondents were mentioned in the list (Part H of temporary employee), therefore, appellant was as a class senior to respondents being regular appointee. Further, he was regularised and confirmed as Assistant with effect from 22-6-1972 vide order dated 10-3-1976 and 12-3-1976. In the seniority list of 1982 he was shown junior to respondents Nos. 2 to 6, which according to the appellant, is incorrect. But the appellant failed to challenge the seniority list at that time, thus at this belated stage his claim of seniority over respondents cannot be entertained. The plea of the appellant that he was not provided copy of that seniority list, is also not supported by any evidence.
13. On the other hand, the respondent's stand is that appellant's regularisation and confirmation was illegal. They argued that the seniority list of 1976 was not drawn as per rules and instructions of seniority, therefore, it was found erroneous and was rectified in 1982. However, it was declared invalid on technical ground by the Federal Service Tribunal vide its judgment in Appeal No, 216(R)/1984. The Draft Seniority List issued in 1993 was not also correct thereafter final seniority list was issued in 1994 with the approval of the competent authority, in which the appellant has been rightly assigned seniority position at serial No, 9 with his date of regular appointment as 31-12-1973.
14. It is admitted fact that the appellant was appointed as Assistant on purely temporary basis on 20-5-1967 subject to replacement of FPSC's qualified candidates. This fact is proved from his appointment letter placed on the file. It is also admitted that respondents were FPSC qualified. The inter se seniority of the appellant vis-a-vis respondents is to be determined in accordance with S.No, 46 of Chapter XX of the Establishment Manual No, I, II at paras. 316 to 318. According to formula laid down therein, the persons of the category who are appointed directly without the recommendations of the Public Service Commission stand junior as class to the candidates who are appointed on the result of the 'Commission or are promoted from the lower grade, as the case may be. The appellant neither FPSC nominee nor promoted from lower grade, therefore, he cannot claim seniority over the respondents who are admittedly FPSC's nominees and promoted from lower grades. Appellant failed to produce any rules through which he claims his regularisation and confirmation was legally made and he can claim seniority over the respondents. Section 8(4) of the Civil Servants Act, as pointed out by the appellant in rejoinder, is of no avail as far as the appellant is concerned. Section 8(4) provides: Seniority in a post, service or cadre, to which a civil servant is promoted shall take effect from the date of regular appointment to that post. According to rules, the date of regularisation of the appellant is 31-12-1973 and not 22-6-1972 as claimed by the appellant, because he falls in the category of the officials appointed on purely temporary basis after 1-1-1965 and were dealt with as per advice of the Establishment Division vide O.M. Dated 27-9- 1974. Appellant himself admits that Drafts Seniority list of 1993 was correct wherein he was shown at Sl. No, 7 and his date of regularisation, confirmation and seniority was mentioned as 31-12-1973. It means that he admits his date of regularisation as 31-12-1973 otherwise he should have challenged it, which he failed to do so. The issue of seniority of direct recruits vis-a-vis FPSC's nominee and departmental promotee, has already been settled by this Tribunal in Appeals Nos. 216(R)/84, 230(R) to 235(R)/87 and 170(R)/85. In view of the earlier decisions of this Tribunal and circumstances of case in hand, we do not find any substance in the appellant's submissions.
15. In view of the foregoing reason, the appeal is dismissed without any order as to costs.