' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Dr. M. Hassan Khan Ammacha is working as District Health Officer in Northern Areas. He has filed this appeal against seniority given to respondent No, 4, Dr. Sher Wali Khan, Assistant Director, Health Services, Northern Areas, Gilgit.
2. The relevant facts are that the appellant joined services in Northern Areas on 8-8-1976 in the Rural Health System. He was inducted into regular service on the recommendation of Federal Public Service Commission on 6-2-1982. A tentative seniority list of BPS-18 Officers was issued on 12th August, 1992 by the competent Authority wherein the appellant was shown at S.No,
2. He filed objections and finally made a representation which was rejected by respondent No, 1, Secretary, KANA Division, vide order dated 17-11-1993. Being aggrieved, he filed Appeal No, 222(R) of 1993 in this Tribunal. The same was disposed of on 23-11-1993 whereby the appellant was directed to approach the departmental authority by way of proper appeal which he preferred on 18-12-1993 and has not been responded. He thereafter filed this appeal before the Tribunal.
3. The case of the appellant is that he has been working continuously since 1976 as Medical Officer and his appointment was regularised by FPSC in 1982 whereas services of respondent No, 4, Dr. Sher Wali Khan were on ad hoc basis who did not appear before FPSC but directly approached the President of Pakistan and finally got his services regularised with retrospective effect. Therefore, Dr. Sher Wali Khan cannot get seniority retrospectively over and above the appellant when he all along continued as ad hoc appointee. The other points raised in the appeal are that the appellant was appointed against an administrative post in Grade-18. It is stated that in the Health Department of Northern Areas there are three categories of Doctors comprising of Medical Officers working in Grade-17 or Senior Medical Officers working in B-18. It is further stated that Administrative Pool is comprised of District Health Officers, Medical Superintendents and Assistant Director, Health Services. There is another pool, of Specialists. The position taken by the appellant is that respondent No, 4, Dr. Sher Wali Khan's case was not in the category of the administrative post which the appellant was holding, therefore, on one hand the combined seniority list is illegal and also in the seniority list, he has no case for getting his seniority over and above the appellant retrospectively after more than a decade.
4. Notices were issued. The written objections have been filed by the respondents Nos. 1 to 4.
5. Mr. Syed Kazim Hussain Kazmi, Advocate has appeared for the appellant and argued that entire service of respondent No, 4 was on ad hoc basis while the appellant was appointed having been selected by FPSC as regular Medical Officer with effect from 6-2-1982, therefore, he is in all respects senior to respondent No,
4. It is submitted that before regularisation of services of respondent No, 4, the appellant was regularly promoted to BPS-18 on 7-1-1990 when regularisation of respondent No, 4 was abruptly made in contravention of the rules, two years after his regular appointment in BPS-
18. As such, the appellant is senior in all respects to him. It is submitted that cadres of both the appellant and respondent No, 4 are of Medical Officers but posting of one of them in the Administrative Cadre does not make any difference. He has relied on 1991 SCMR 2216 and submitted that regularisation should not be detriment to others. He also referred to 1994 SCMR 759.
It is submitted by the learned counsel for the appellant that respondent No, 4 has been favoured out of way as he served all along right from 1975 till 1992 as ad hoc appointee but he did not care to appear before the FPSC. It is also submitted that FPSC has not given him regularisation in bPS-17 and BPS-18, therefore, his services could only be regularised if rules permit and the President is competent under section 23 of the Civil Servants Act, 1973 to regularise his services from the date the FPSC decided his case, and not from retrospective effect.
6. Mr. Rao Fazal Khan Akhtar, Advocate appeared for respondent No,4, Dr. Sher Wali Khan, and argued that seniority is not a vested right for which he has referred to 1992 PLC (C.S.) 1397; 1992 PLC (C.S.) 1374; 1992 PLC (C S.) 621; PLD 1990 SC 1013 and 1994 SCMR 543, and argued that President is competent to regularise the services of a civil servant under section 23 of the Civil Servants Act, 1973 and his orders cannot be challenged; and on the basis of Presidential order the seniority of respondent No, 4 has rightly been determined and respondent No, 4 has been reckoned senior to the appellant.
7. Mr. M. Javid Aziz Sandhu, learned Standing Counsel appearing for the official respondents submitted that the appellant passed the Diploma Course in 1982 while respondent No, 4 in 1987, therefore, the appellant has got a case for seniority vis-a-vis respondent No, 4.
8. We have perused the service record of the appellant and respondent No, 4, Dr. Sher Wali Khan.
The facts with regard to their service rendered in the Northern Areas almost is not disputed. The cause of action arose to appellant when a combined seniority list of BPS-18 officers was issued wherein the name of the appellant was shown below Dr. Sher Wali Khan. Therefore, we would like to confine to the relevant point of inter se seniority of the appellant and respondent No,
4. The appellant before his selection by FPSC was working in the Rural Health System in the Northern Areas since 8-8-1976 but his regular appointment in Grade-17 as Medical Officer was in pursuance of his selection by FPSC and on successful completion of probationary period, his probation period was terminated with effect from 23-1-1983 by orders dated 13-3-1983, and as such he stood confirmed as Medical Officer. He was promoted to Grade-18 on 7-1-1990.
9. Respondent No, 4 Dr. Sher Wali Khan was appointed on ad hoc basis as Medical Officer (Grade- 17) with effect from 26-9-1975 and being an ad hoc employee, he was promoted to Grade-18 with effect from 8-10-1981 and posted as Senior Medical Officer, and then as Assistant Director, Health Services with effect from 11-6-1986. During the entire period, Dr. Sher Wali Khan neither appeared .Before the Federal Public Service Commission nor his appointment in Grade-17 was regularised.
The matter took new turn when objection was raised by the Deputy AGPR and made query vide letter dated 9-2-1989 as under: "It transpires from the record of the officer available in this office that Dr. Sher Wali Khan was appointed as a Civil Medical Officer in Northern Areas with effect from 26-9-1975 vide KANA Division Office Order No, E.11-2/13/75, dated 6-11-1975 on ad hoc basis till the availability of a nominee of the FPSC. So far his appointment has neither been regularised by Establishment Division nor he has been replaced by a nominee of the FPSC. As no such order of confirmation are available with us.
Please intimate the factual position of the case on priority basis for further necessary action."
' In pursuance of the above-quoted letter, the matter was processed for regularising the services of Dr. Sher Wali Khan by KANA Division and such Summary was sent to the Secretary, Establishment Division on 9th July, 1989. The Establishment Division examined the case and made a reference to the Secretary, FPSC, vide letter dated 10th October, 1989 and the contents are as under: "I am directed to refer to the subject noted above and to say that Dr. Sher Wali Khan was appointed as Medical Officer (BPS-17) on ad hoc basis with effect from 26-9-1975 in the Health Department of Northern Areas by the Kashmir Affairs and Northern Affairs Division with the approval of the competent authority. In 1981 the Kashmir Affairs and Northern Affairs Division submitted a summary to the Establishment Division for his promotion to (BPS-18) whereas he was an ad hoc appointee and was not eligible for being considered for promotion. On the recommendations of the Kashmir Affairs and Northern Affairs Division, the competent authority was pleased to approve his promotion to BPS-18. The Kashmir Affairs and Northern Affairs Division promoted him to BPS-18 with effect from 8-10-1981. He is continuing till now.
(2) The Sub-Office of the A.-G.P.R. Has now pointed out that the appointment of Dr. Sher Wali Khan has neither been regularised by the Establishment Division nor he has been replaced by a nominee of the FPSC. The Kashmir Affairs and Northern Affairs Division has now requested to regularise the ad hoc appointment of the officer with effect from 26-9-1975 to 8-10-1981 in BPS-17. Establishment Division is of the view that Mr. Sher Wali Khan was an ad hoc appointee and was never regularised through FPSC and his appointment to BPS-18 was, therefore, irregular as he was ineligible for promotion being an ad hoc appointee.
(3) The Federal Public Service Commission is requested to favour us with their view that how this impasse can be put to end and the error can be rectified to save Dr. Sher Wali Khan from being on the road."
' It is thus an admitted fact that the promotion of Dr. Sher Wali Khan to Grade-18, who was still an ad hoc appointee, was not regular. The Establishment Division again by Office Memorandum, dated 14th December, 1989, referred the matter to KANA Division and the contents of this O.M. Are as under: ' The undersigned is directed to refer to the Ministry of Kashmir Affairs and Northern Affairs U.O. No, E.II-2/13/75, dated 9th July, 1989, on the above-cited subject and to say that the case of Dr. Sher Wall Khan was referred to the 'FPSC for their advice. The Commission has observed that under rule 4 of the FPSC (Functions) Rules, 1978, the cases of appointment made during the period between 1- 1-1972 to 5-7-1977 are required to be sent to the Commission for regularisation with the approval of the President only and no other person. Kashmir Affairs and Northern Affairs Division are, therefore, advised that the case of Dr. Sher Wali Khan may be sent to the Commission for regularisation of his ad hoc appointment with the approval of the President as per rules referred to above.
(2) The Commission has further observed that the promotion of Dr. Sher Wali Khan to BPS-18 is irregular and he may be reverted to his original post viz. Medical Officer. The Commission has also advised that the action may be taken against persons responsible for these irregularities."
10. According to the aforesaid O.M. Of the Establishment Division the promotion of respondent No, 4, Dr. Sher Wali Khan in Grade-18 was not regular. The matter for regularisation of his ad hoc appointment in Grade-17 was, however, being processed by the KANA Division and Summary was put up before the Minister for Kashmir Affairs and Northern Affairs, who recorded his observations as under:
(a) Why disciplinary action has not been taken against those responsible for this irregular promotion.
(b) After proceeding against the officials at fault, the case be resubmitted.
' The matter was under process and was not being finalised till the Establishment Division in pursuance to the Summary prepared by KANA Division for President on 21st July, 1990 sought following clarifications from KANA Division vide its O.M. Dated 19th August, 1990: "(i) Whether the post of Medical Officer against which Dr. Sher Wali Khan was appointed was referred to FPSC?
(ii) whether Dr. Sher Wali Khan appeared before the FPSC or not?
(iii) Why this post was not filled by the FPSC?
(iv) Why the irregularities pointed out by Sub-Office, A.-GPR, Northern Areas were concealed earlier by the Kashmir Affairs and Northern Affairs Division?
(v) What action has been taken against the persons responsible for these irregularities as requested vide our Office Memorandum of even number, dated the 14th December, 1989?"
' In the meantime, the Establishment Division vide Office Memo. Dated 25th September, 1990, advised KANA Division to fill the post of Medical Officer through FPSC and terminate the services of Dr. Sher Wali Khan after the nominee of FPSC becomes available. In response to this communication, the Secretary, KANA Division vide his D.O. Letter, dated 5th November, 1990 addressed to the Establishment Secretary requested to reconsider the case and not to terminate the services of Dr. Sher Wali Khan. Ultimately, the Summary was submitted to the then President for regularisation of services of Dr. Sher Wali Khan as Medical Officer (BPS-17), who recorded the following note:-- "(11) Dr. Sher Wali Khan was appointed as Medical Officer BPS-17 on ad hoc basis in the Health Department Northern Areas with effect from 26th September, 1975. Under the law the appointment should have been advertised and nominee of the FPSC appointed within a maximum period of one year. Not only was this not done but the ad hoc appointee was also promoted to BPS-18 which is a serious irregularity, as ad hoc appointments are against specific posts and have no right to promotion. In order to prevent such irregularities in future there is a requirement to go into the entire range of ad hoc appointments which are at present continuing indefinitely and suitable action initiated against the delinquent officials.
(12) Apparently by referring the case of Dr. Sher Wali Khan to FPSC the intention appears to be to enable the FPSC to pronounce on the suitability of his appointment in BPS-17. After so many years it is doubtful whether FPSC will be able to make an objective assessment in this respect. However, since the Prime Minister has so advised, the President is pleased to refer the case of Dr. Sher Wali Khan to FPSC in terms of Rule 4 of the FPSC (Functions) Rules, 1978 to report on the fitness of the officer to hold his post"
' Finally, the case of Dr. Sher Wali Khan was referred to FPSC by the Establishment Division vide letter, dated 14th October, 1991, with the request to regularise his ad hoc appointment as Medical Officer (Grade-17) on the directions of the President. He was interviewed and found suitable for appointment as Medical Officer (B-17) in the Health Department, Northern Areas, and such letter was sent to KANA Division on 1st February, 1992, and the contents of this letter was as follows: "I am directed to refer to your Letter No, E.II-2/13/75 (NA-III), dated the 27th November, 1991 and this office letter of even number, dated the 26th December, 1991 on the above subject and to say that in terms of Rule 4 of the FPSC (Functions) Rules, 1978 the Commission has interviewed Dr. Sher Wali Khan, Medical Officer (BPS-17) on 2nd January, 1992 at Islamabad. Mr. Taj M. Naeem, Development Commissioner, Northern Areas, has assisted the Commission as Departmental Representative. The Commission .Has found Dr. Sher Wali Khan suitable for regularisation of his service as Medical Officer (BPS-17) in the Health Department, Northern Areas, under the Kashmir Affairs and Northern Affairs Division.
(2) Further action in the matter may please be taken under intimation to his office. The ACRs of the above-named officer from 1975 to 1990 are returned herewith. The receipt of the same may please be acknowledged."
' Accordingly, the Establishment Division vide its 0.M., dated the 28th March, 1992 conveyed approval of the competent authority to the regularisation of the ad hoc appointment of Dr. Sher Wali Khan as Medical Officer (B-17) with effect from 26th September, 1975 and such office order was issued by KANA Division on 14th April, 1992. Since Dr. Sher Wali Khan had been promoted to Grade-18 with effect from 8th October, 1981 vide Establishment Division u.o. Dated 4-10-1981, another Summary for the Establishment Secretary was floated by Secretary, KANA Division on 25- 6-1992 for regularisation of his promotion to Grade-18, and finally by office order dated 23-7-1992 issued by KANA Division, the promotion of Dr. Sher Wali Khan to B-18 was regularised with effect from 8-10-1981.
11. It has been vehemently argued by the learned counsel for respondent No, 4, Dr. Sher Wali Khan that under section 23 of the Civil Servants Act, 1973, the President has got vast powers to deal with the case of any civil servant which he exercised and regularised the services of Dr. Sher Wali Khan, and as such, he is entitled to reckon seniority over and above the appellant. There is no cavil about this issue and for the sake of convenience, section 23 of the Act is also reproduced hereunder: "23. .---Nothing in this Act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
' The proviso to section 23 of the Act clearly lays down that where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule. Since Dr. Sher Wali Khan's ad hoc appointment as Medical Officer (Grade-17) continued for a considerable long period, which was in utter disregard of the rules, the then President took serious notice of such an irregularity directing initiation of suitable action against the delinquent officials and as the Prime Minister had advised, it seems that he, under Rule 4 of FPSC (Functions) Rules, 1978, perhaps, half-heartedly and on humanitarian grounds, referred the case of Dr. Sher Wali Khan to FPSC to report on the fitness of the officer to hold his post, but he did not regularise his appointment in B-17 or promotion in B-18. Therefore, the objection of learned counsel for respondent No, 4, Dr. Sher Wali Khan, is repelled. The other objection raised by the Advocate for respondent No, 4, is that seniority is not a vested right, but according to the Civil Servants Act, 1973 which regulates the terms and conditions of service of the civil servants, section 8 thereof provides for seniority and the appointing authority has been enjoined to cause a seniority list of the members of service, for which rules have been framed by the Legislature called the General Principles of Seniority to redress the grievances of the civil servants. Since seniority plays a major role in boosting up service prospects of the civil servants, we are of the view that seniority is very much a term and condition of service, and particularly in the circumstances when the respondent No, 4 has been allowed seniority over and above the appellant mala fidely by regularising his irregular service rendered in B-17 and also the promotion to B-18, and, therefore, this objection is also repelled.
12. From the above discussions the position that emerges is that appellant A having been appointed on regular basis as Medical Officer (B-17) with effect from 6-2-1982 and respondent No, 4, Dr. Sher Wali Khan's ad hoc appointment in B-17 was regularised to the extent that he may not be removed from service but the Commission had not given him benefit of regularisation retrospectively and earlier opined that his promotion to B-18 was not legal. Thus, the Commission has not regularised the promotion but the Ministry without justification took up his promotion to B- 18 as regular and issued the notification, without processing his case through the procedure prescribed by rules. As such his regularisation in B-18 was not regular and it was all along objected by the Minister, Federal Public Service Commission and even the President, and in such circumstances he could not have a legitimate right for reckoning seniority over and above the appellant.
13. For the reasons recorded above, we allow the appeal with the direction that the appellant shall rank senior to respondent No, 4.