' SYED ALLY MADAD SHAH (CHAIRMAN).---Appellant Muhammad Arif Kayani, an Assistant in the Federal Public Service Commission, has preferred this appeal for determination of his seniority vis- a-vis the respondents 3, 4, 5 and 6 (M/s. M. Saleem Khan, Muhammad Aslam Choudhry, Shujaat Hussain and Sher Zaman.)
2. The case of the appellant, briefly stated, is that he, while serving as Upper Division Clerk (UDC) in the Federal Public Service Commission, was promoted to officiate as Assistant (Grade-11) with effect from 1-4-1982 (FN) against a short term vacancy as per Office Order No, 148/82, dated 1-4- 1982. Later, he was allowed to continue to officiate as Assistant an on temporary basis until further orders vide Office Order No, 297/82, dated 28-6-1982. Ultimately, his promotion was regularised as an Assistant with effect from 1-6-1984 as per office order dated 16-12-1984. The respondent No, 3, Saleem Khan, was directly appointed as an Assistant in the Federal Public Service Commission on ad hoc basis with effect from 20-4-1982. His appointment as Assistant was regularised with effect from 9-1-984 after competing for regular appointment. The respondents Nos. 4, 5 and 6 were appointed still later. In seniority list of Assistants circulated on 7-4-1987, the name of the appellant was enlisted above the name of the respondents 3, 4, 5 and 6. To his surprise, the name of the respondent No, 3 was mentioned above his name in the tentative seniority list of Assistant circulated on 9-1-1988, showing the date of his entry in the service as Assistant as 20-4-1982 instead of 9-1-1984. He made representation as 1-2-1988 against his down-grading in the seniority list. The tentative seniority list was finalised and it was circulated on 13-9-1988 maintaining the same position of the appellant and that of the respondents as was indicated in the tentative seniority list. Even the names of the respondents 4, 5, and 6 were placed above him. He preferred departmental appeal on 26-9-1988. Awaiting decision on his departmental appeal for a statutory period of more than 90 days, he filed this appeal on 24-1-1989.
3. The grounds urged by the appellant are that his promotion as Assistant was regularised with effect from 1-6-1984, whereas the ad hoc appointment of the respondent No, 3 as Assistant with effect from 20-4-1982 was regularised with effect from 9-1-1984 and he (the appellant) being the promotee of the same year was entitled to priority in seniority over the direct recruits of the same year in accordance with the general principles of seniority and in no case the respondent No, 3 could reckon seniority on the basis of his ad hoc appointment. He has also contended that by virtue of his position above that of the respondents 3, 4, 5 and 6 in the seniority list upto 1988, he had acquired vested right of seniority and he could not be deprived thereof by mere ante-dation of the dates of entry in the service of the said respondents.
4. The appeal is directed against the Federal Public Service Commission and the Establishment Division, as respondents Nos. 1 and 2; and the respondents 3 to 6, already named above. They have filed written objections
5. In their written objections, the respondents 1 and 2 (FPSC and the Establishment Division respectively), preliminary objections have been taken that the appeal is not maintainable as framed and filed inasmuch as that the appellant has no legal cause of action and the appeal is time-barred too. They have urged that the appellant was promoted as Assistant when no post of Assistant was available and the appellant was allowed to continue as Assistant in contravention of the rules. They have taken the stand that the competent authority can rectify the error at any time in the Public interest. They have stated that the seniority list of Assistants was under consideration of the Establishment Division and the Federal Public Service Commission, and the Commission constituted a Seniority Committee which formulated a revised seniority list based on the withdrawal of FPSC letters dated 7-10-1987 and 4-11-1987 but that seniority list had been kept in abeyance due to certain objections by the Establishment Division and the seniority list circulated on 13-9-1988 held the field until adjudication by the Tribunal. As regrades the factual aspect of the case, the chronological history of the appellant's service and that of the respondent No, 3 given by the appellant has been confirmed but it has been added that the appellant's promotion as Assistant was irregular as there was no vacancy therefor. It has further been stated that the seniority list of the Assistants was revised as it was to be prepared in accordance with the specific rules of seniority, published at S.No, 46 of Establishment Manual Volume II (pages 316 to 318), providing that the seniority was to be reckoned from the date of regular appointment/promotion irrespective of the fact that the appointment, promotion was during the same year or in different year and, therefore, the respondents 3 to 6 ranked senior to the appellant and that position was reflected in the seniority list circulated on 19-1-1988 and 13-9-1988.
6. The respondents 3 to 6 too have questioned the competency of the appeal and further contended that it is time-barred and also that it is liable to be dismissed on account of misjoinder of parties and causes of action. They have further contended that the promotion of the appellant was irregular as no post for promotee, was available. They have stated that the respondent No,3 was appointed as Assistant on 20-4-1982 but his appointment was mistakenly shown as ad hoc on the assumption that no vacancy for the persbns of Punjab domicile was available, although there was a vacancy for Punjab domicile and it was in that context that his appointment was subsequently regularised with effect from 20-4-1982 and he was given seniority accordingly. They have also made mention that seniority lists were revised and representations were made etc. They have also contended that the seniority was to be determined in accordance with the Office Memorandum No, 6/1/649-ME, dated 2-5-1951, published in the Establishment Manual Volume II at pages 316 to 318.
7. Two issues are involved in this appeal: one that of inter se seniority of the direct recruits and the promotees; and the other of conversion of ad hoc appointment of the respondent No, 3 into regular appointment. As regards the first issue, the undisputed facts are that the (promotion of the appellants as an Assistant was regularised with effect form 1-6-1984; whereas the ad hoc appointment of the respondent No, 3 made with effect from 20-4-1982 was regularised with effect from 9-1-1984.) As per entries in the seniority list circulated on 13-9-1988, the dates of entry in service of the respondents 4, 5 and 6 are shown as 19-1-1984, 24-1-1984 and 20-3-1984 respectively. Thus, keeping aside the regularisation of the appointment of the respondent No, 3 from back date, the promotion of the appellant to the post of Assistant and the regular appointment of the respondents 3 to 6 as Assistants took place in the same year viz. 1984 and the appointments of the respondents were earlier in time than the promotion of the appellant.
However, the appellant was placed above the respondents in the seniority list circulated in the year 1987 on the basis of general principles of seniority published in ESTACODE (1989 Edition) at pages 225 onwards providing that officers promoted to the higher grade in a continuous arrangement and as a regular manner in a particular year shall, as a class, be senior to those appointed by direct appointment in the same year. This position was changed subsequently on the representations made by the respondents that they belong to the ministerial service in the Secretariate and their seniority was to be determined in accordance with the rules of seniority contained in Office Memorandum No,6/1/649-ME, dated 2-5-1951 published in the Establishment Manual Volume II, at pages 316 to 318. The relevant provision appears in paragraph 5, reproduced below:-- "In the grade of Assistants and Upper Division Clerks, permanent and quasi-permanent vacancies are filled partially by direct recruitment and partially by promotion--vide paragraphs 8-10 of the Establishment Division Office Memorandum No, 54/2/48-Est.(M.E.), dated the 21st November, 1949 (Chapter XXII). In such a case, the seniority of candidates should be determined accordingly as the vacancy to be filled by direct recruitment or that to be filled promotion by promotion occurred earlier in accordance with the roster prescribed in paragraph 10 of the Office Memorandum referred to above. For instance, if two permanent or quasi-permanent vacancies occur in Division/Department in the grade of Assistant and the first vacancy is, in accordance with the roster referred to above, meant for a direct recruit, the direct recruit should rank in seniority above the departmental candidate (i.e, the candidate appointed by promotion or transfer under the rules) even though the former joins his post after the departmental candidate has been promoted.
Temporary service rendered by a departmental candidate is not taken into account for the purpose of seniority when he is appointed on a permanent or a quasi-permanent basis. (Attention is also invited to paragraph 6 below)."
8. The provision of paragraph 5 of the aforesaid Memorandum dated 2-5-1951 apart, the events of the promotion of the appellant and the appointment of the respondents 3 to 6 as Assistant reveal that the respondents Nos.3 to 6 were regularly appointed as the Assistants earlier than the regular promotion of the appellant as an Assistant. There is no evidence that the post on which the appellant was promoted to as an Assistant on regular basis was available for promotion from any earlier date. In that context, the respondents 3 to 6 stood senior to the appellant. Since the appellant and the respondents are governed by specific rules of seniority contained in the office Memorandum dated 2-5-1951, the general principles of seniority that promotees of a particular year shall reckon seniority over the direct recruits of that year would not be applicable in their case.
9. As regards the other issue of the regularization of ad hoc service of respondent No, 3, it is a settled law that ad hoc service would not count for the purpose of seniority. Reference in this respect may be made to the cases reported in 1982 SCM R 408 and 1989 SCM R 935. Of course a plea has been advanced by the respondent No, 3 which has been supported by the department, that the respondent No,3 having domicile in Punjab was appointed on ad hoc basis against a post allocated to Sindh Rural, but it transpired later that some posts in Punjab quota were also available at the relevant time and his appointment, therefore, was regularised against one of those posts from the date of his actual entry in service viz. 20-4-1982. "Ad hoc" appointment is defined at clause
(a) subsection (1) of section 2 of the Civil Servants Act, 1973, as an appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method. It follows that the appointment of the respondent No, 3 on ad hoc basis was made in a manner otherwise than in accordance with the prescribed method of recruitment. He was actually put under a test for regularisation of his service in the year 1984 and he was then given regular appointment with effect from 9-1-1984. In the circumstances, his appointment as an Assistant could not be regularised with retrospective effect and he shall reckon his seniority from the date of his regular appointment viz. 9-1-1984. However, he will not lose his seniority above the appellant for the reasons stated above.
10. The respondents have taken two preliminary objections against the appeal, one that of time bar and another that other persons likely to be affected by the relief sought by the appellant have not been impleaded as respondents. The question of limitation stands explained in the way that the appellant's name was shown above the names of the respondents in the seniority list published in April, 1987 but it was changed in the tentative seniority list circulated on 9-1-1988 and finalised on 13-9-1988. He made departmental appeal on 26-9-1988 and awaiting decision thereon for a statutory period of 90 days, he preferred this appeal on 24-1-1989 which was within the requisite period of limitation. The appeal, therefore, does not suffer from time bar. As regards the second objection, the appellant entertains grievance against the entry made in the seniority list published on 13-9-1988, wherein his name appears at S. No, 44, whereas the names of the respondents 3, 4, 5 and 6 appear at S. Nos. 33, 38. 39 and 42 respectively, and the persons whose names appearing at S. Nos. 34, 35, 36, 37 and 40, have not been made party. Unless they were made party, the appellant could not maintain the appeal as to have gained the seniority over the respondents. However, the learned counsel for the appellant contended that the appellant did not claim seniority over those persons and, therefore, they were not necessary parties, and what he seeks to be done is that the respondents names should he placed below his name. This proposition loses sight of the anomaly of bringing down the respondents below those persons who did not challenge their seniority position. The appeal is, therefore, not maintainable on that ground.
11. For the reasons recorded above, the appeal has no merit and it is also not maintainable for non- joinder of necessary parties and is dismissed as such, with no order as to costs.