' MUHAMMAD ILYAS LODHI (MEMBER).---The appellant, Muhammad Saeed, has aggrieved by the Circular dated 21-3-1994, whereby the seniority list circulated in 1982 was revised.
2. The appellant was directly appointed as Assistant with effect from 17-8-1978 and was posted as such in the Economic Affairs Division. In 1982 a seniority list was circulated by the Economic Affairs Division, wherein the appellant was shown at serial No,
54. It appears that some representations were submitted against this seniority list and consequently the Establishment Division decided that the persons appointed in the Cadre of Assistants in the Economic Affairs Division after 10-7-1976, be assigned seniority from the date of their regular appointments. The respondent Division, therefore, prepared the revised seniority list on 21-3-1994 and the appellant therein was shown at serial No,
57. Feeling aggrieved, the appellant submitted a departmental appeal which remained unresponded to. He then, after waiting the statutory period of 90 days, filed the present appeal before this Tribunal on 18-8-1994 under section 4 of the Service Tribunals Act, 1973.
3. The appellant's main case is that the seniority list circulated on 21-3-1994 is unjust and without lawful authority because the previous seniority list which was issued on 1-6-1982 had attained its finality and there was no justification or a valid ground to get the same superseded after a lapse of several years. The learned counsel for the appellant emphasized that the Hon'ble Supreme Court in the case reported as PLD 1994 SC 151 has held that seniority list once finalised cannot be reopened and the Tribunal had itself taken the same view in the case of Anis Khan v. Vice Chairman, Central Board of Revenue and others (Appeal No, 197(R) of 1980). The learned counsel maintained that the instructions regarding the seniority had not been followed in letter and spirit as the seniority is to be determined from the date of regular appointment to the grade or post and not from the date of initial appointment. According to him, all the private respondents being departmental promotees, were given undue advantage while placing them senior to the appellant and as such his vested right and interest of seniority had been jeopardized and was not protected. He mainly emphasized that before disturbing the seniority list of 1982, objections should have been invited from the parties which was not clone and thus the seniority list was null and void. On the basis of these submissions, the learned counsel prayed that since the revised seniority list issued in 1994 is invalid and without lawful authority, therefore, the seniority position as assigned to the appellant in the seniority list of 1982, may be restored.
4. The learned counsel for the respondent Division and the private respondents, who appeared in person, resisted the appeal contending that, on representations, a Seniority Committee was constituted by the competent Authority and accordingly a revised seniority list was circulated on 21-3-1994, wherein the appellant had rightly been shown at serial No,
57. It was also asserted that the seniority list circulated in 1982 became disputed in 1.984 when it was challenged by Mr. S. Shahabuddin Ahmed v. Secretary, Economic Affairs Division, Islamabad and 13 others (Appeal No, 216(R) of 1984) and this Tribunal in its judgment dated 5-1-1987 had held that the seniority list was invalid. Respondent Division was, therefore, justified in revising and circulating the seniority list in 1994.
5. We have heard the parties at length. The appellant enjoyed this seniority position till March 1994 i.e, more than 12 years. During 1990, a Departmental Promotion Committee was held to promote Assistants for granting them selection grades as per the seniority list of 1982. Some Assistants have challenged the seniority with list of 1982 and even then it was held that seniority list of 1982 finalized with the approval of Establishment Division may be upheld. But it was also not challenged 'by the respondents. The submissions of the learned counsel for the respondents Division that the seniority list issued in 1982 was held to be invalid by this Tribunal' in the above cited case and thus a revised seniority list was circulated is of no avail to him as this Tribunal has clearly held in its judgment dated 5-1-1.987 that the seniority list of 1982 was invalid only to the extent that it was not singed by the competent Authority and the merits assigned to the incumbents had not been discussed. The Tribunal then observed that no useful purpose would be served if the said list was declared to be void. It can, therefore, be safely presumed that the Tribunal was satisfied with the merits of seniority. On the basis of the said judgment it cannot be said that since the very issue for revising the seniority had been settled by this Tribunal in Appeal No, 216(R) of 1984 on 5-1-1987, therefore, the appellant cannot raise any objection for the impugned seniority list because any decision would amount to res judicata. The other case (Abu Talha Ansari v. Secretary, Economic Affairs Division Appeal No, 230 (R) of 1987) is also distinguishable as in that case also the Tribunal had not discussed the merit position of all the incumbents in respect of seniority. The respondents could not make out any case to substantiate their contentions regarding the revision of seniority list. They have also failed to establish any variance between the quota of direct appointees and the promotees. The appellant's assertions, on the other, that when a seniority list had attained its finality, the respondent-Division was not justified in reopening the issue, cannot be lightly ignored.
In our view, therefore, the respondents Division was not justified in placing the appellant junior to the respondents in the revised seniority list of 1994 i.e, after 12 years when it had already attained its finality in 1982. Moreover, the seniority list cannot be allowed to be revised merely to provide the benefit to a particular class.
6. We have examined the record and found that all the respondents were appointed on temporary basis Assistants. It has been held in a number of cases by the Hon'ble Supreme Court that ad hoc service cannot be considered for the purpose of seniority, however, for promotion the benefit of ad hoc service can be given. The respondents have also never challenged the seniority list of 1982 till 1994. In these circumstances, the appeal is accepted as indicated above with no order as to costs.
Parties be informed.
7. NOOR MUHAMMAD MAGSI (MEMBER).---I have had the advantage of going through the judgment of my learned broth& Mr. M. Ilyas Lodhi, Member, but after going through the record, I would like to elaborate the factual position of the case and give my views as follows:--
8. Appellant Muhammad Saeed, has claimed to be senior to respondents Nos. 2 to 17. It is admitted fact that he was directly appointed as Assistant with effect from 7-7-1979 in the Economic Affairs Division, Islamabad. On the other hand, respondents Nos. 2 to 17 were appointed/promoted as Assistant from the dates mentioned against their names as under:- S. No.Name Date of appointment promotion as Assistant 1 S. Arshad Ali (Respdt. No. 2) 19-3-1975
2. S.H. Zaidi( " No. 3) 6-4-1973
3. Mr. Muhammad Shafiq (R. No. 4) 19-3-1975
4. S. Azher H. Zaidi (R. No. 5) 16-2-1977
5. S. Asad Raza Zaidi (R. No. 6) 17-12-1976
6. Malik Abdul Bari Khan (R. No. 7) 5-5-1977
7. Mr. Abdul Hamid-II (R.No. 8) 17-12-1976
8. S. Mahmood Ali (R.No. 9) 24-4-1979
9. Mr. Muhammad Saleem Ahmed (R.No. 10)6-1-1977 10.Mr. Wazir Muhammad (R.No. 11) 26-1-1977
11. Mr. Mushtaq Ahmed-I (R.No. 12) 17-2-1977 12.Mr. Chanzeb Khan (R.No. 13) 4-3-1977 13.Mr. Hukam Dad Khan (R.No. 14) 11-4-1977 14.Mr. Ijaz Pervez (R.No. 15) 5-5-1977 15.Mr. Iftikhar Ahmed Siddiqui (R.No. 16) 28-1-1978 16.S.M. Azizuddin (R.No. 17) 13-8-1978 From the above data, it is clear that all the respondents were appointed/promoted as Assistant prior to the direct appointment as Assistant of the appellant. My learned brother has mainly based his judgment on the seniority list of Assistants of Economic Affairs Division, circulated on 30-3-1983, but he seems to oversight the fact that this seniority list was withdrawn by the respondent's Department vide their Office Order No, 12/84, dated 8-1-1984. Again the seniority list of 1982 came under consideration of the Tribunal in Appeal No, 216-R of 1984 filed by Mr. Shahabuddin Ahmed and the Service. Tribunal in its judgment dated 5-10-1987 held in para. 5 that: "However, the list should have been prepared by the order of the Secretary, whereas in the present case the Joint Secretary has finalised the list. The list of 1982, in these circumstances, appears to be invalid."
' In these circumstances, the plea,of the appellant that the seniority list of 1982 remained undisputed and undisturbed till 1991 is not based on facts.
9. It also appears from Annexure III i.e, a note portion dated 26-2-1991 filed by the respondent's Department with their objections that M/s. S.H. Zaidi, Wazir Muhammad, Chanzeb Khan and M.A.
Bari Khan, had been assigned their due seniority with effect from the dates of their regular promotions as Assistants whir effect from 6-4-1973, 26-1-1977, 14-3-1977 and 5-5-1977 respectively.
Even otherwise, the Establishment Division, in view of the judgment of this Tribunal in S. Shahabuddin Ahmed's case, hold the seniority list of 1982 to be invalid. Moreover, if the contention of the appellant that respondents Nos. 2 to 17 were ad hoc, is presumed to be true for the sake of arguments; even then the appointments of all the respondents with the exception of M/s. Mahmood Ali, Iftikhar Ahmed Siddiqi and S.M. Azizuddin, fall within the period from 1-1-1972 to 5-7- 1977 and with their exemption from the purview of section 12-A of the Civil Servants Act, any irregularity or infirmity involved in their appointments stood condoned in view of a Full Bench judgment of this Tribunal in Appeal No, 296(R) of 1986 of Muhammad Zakria Khan v. Secretary, Establishment Division, etc. Reported in 1990 PLC (C.S.)
45. This judgment was based on the admission of the representative of the. Establishment Division that no formal order of regularisation in the case of those appointed between the period from 1-1-1972 to 5-7-1977 was required to be passed. This judgment has been followed by two other Full Bench judgments of this Tribunal reported in 1992 PLC (C.S.) 717 and 1993 PLC (C.S.) 220. As such all the respondents except respondents Nos. 9, 16 and 17, would be deemed to be regular from the date of their initial appointment 'who fall within the period mentioned in section 12-A of the Civil Servants Act, 1973.
They having been appointed/promoted prior to the appellant's direct appointment, the latter has no claim of seniority against them. As such he cannot be held to be senior to those respondents.
10. As regards respondents Nos. 9, 16 and 17, they were not appointed/promoted between the period from 1-1-1972 to 5-7-1977, but their stand is that they have been regularised by the Department with effect from the dates of their respective appointments/promotions. From perusal of the record, I found that M/s. Iftikhar Ahmad Siddiqui (respondent No, 16) and S.M. Azimuddin (respondent No, 17) were declared as surplus Assistants in the Ministry of Industries and were absorbed in the Economic Affairs Division with effect from 28-1-1978 and .13-8-1978 respectively vide their absorption orders dated 29-1-1978 and 19-9-1978. Mr. Mahmood Ali, respondent No, 9, who was a U.D.C. And promoted as temporary Assistant in the Economic, Affairs Division with effect from 24-4-1979 vide Office Order, dated 5th June, 1978. But there is nothing on the record about their regularisation and neither the department has produced any such document. Mere the mention of their names in the seniority list does not confer any right for their confirmation unless a specific order is passed in this regard. The record is silent whether their appointments were made on regular basis against promotion quota or otherwise. In the absence of any proof about their regularisation as Assistants against their own quota, we are unable to presume them as regular holders of the posts of Assistants.
11. The net result of the above discussions is that The appeal of the appellant is dismissed against all the respondents except respondents Nos. 9, 16 and 17 i.e, M/s. S. Mahmood Ali, Iftikhar Ahmed Siddiqi and S.M. Azimuddin. Since the record is silent about their regular appointment as Assistant, therefore, in the interest of justice,. We leave it to the Department to refix their seniority vis-a-vis the appellant on the basis of the record available with the Department. The appeal otherwise, stands dismissed with no order for costs.
' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant and all the private respondents herein are working as Assistants in the Economic Affairs Division. Appellant Muhammad Sliced filed this appeal wherein he challenged the seniority list issued on 21-3-1994 relegating his position in the seniority list at S.No, 57, vis-a-vis his colleagues. The appeal was heard by a Bench of the Tribunal consisting of Mr. M. Ilyas Lodhi and Mr. Noor Muhammad Magsi, Members. Mr. NI. Ilyas. Lodhi, Member initiated the judgment and allowed the appeal holding that the seniority list issued in 1982 could not be revised in 1994, and the appellant be given seniority as per 1982 list. The other Member, Mr. Noor Muhammad Magsi has dismissed the appeal on various grounds, inter alia, that all the private respondents were appointed/promoted as Assistants on different dates earlier than the appellant, and they had rightly been given seniority from the date of their regular appointments.
There being difference of opinion between the two learned Members, the matter has come up before me in terms of clause (b) to subsection (2) of section 3-A of the Service Tribunals Act, 1973.
Notices were issued to the parties for 31-5-1995 and I heard the appellant as well as his Advocate, as also the departmental representative and the private respondents named above.
2. The contention of the learned counsel for the appellant is that since 1982 the appellant enjoyed seniority and it would be unfair to change the seniority position after 12 years. It is argued that this change has been made in 1994 on the representations of the respondents, therefore, this seniority cannot be maintained.
3. Mr. M. Abdul Majeed, Section Officer, E.A.D. Argued that seniority list of 1982 was challenged before this Tribunal in Appeal No, 216(R) of 1984 and the Tribunal by its judgment dated 5-1-1987 held the seniority list of 1982 as invalid. He submitted that the respondent Department took up the matter with the Establishment Division and in 1993 issued a provisional seniority list and after inviting objections, a final seniority list was issued in 1994. It is stated that all the private respondents were appointed as Assistants much earlier than the appellant, when even he was not in service and injustice was done to the respondents and this entire process was made on the representations filed by them. Private respondent Wazir Muhammad submitted that when the seniority list of 1982 was issued, he made representation and it cannot be said that none objected to it, and since the matter was pending for adjudication before the Tribunal up to 1987, the department could not finalise the seniority list, and the seniority list of 1994 was issued after inviting objections.
Respondent No, 3,S.H. Zaidi, submitted that the objection of the appellant with regard to observance of quota for determining seniority is irrelevant as quota is observed only for the purposes of making appointments.
4. As the record bears out that all the respondents were appointed as Assistant prior to the appellant, and their appointments as such stood regularised as held by this Tribunal in the case of Zakaria Khan reported in 1990 PLC (C.S.) 45, and the appellant never challenged the regularisation of the respondents, therefore, they were deemed to be regular promotees, and under the rules, they were rightly shown senior to the appellant. It may also be observed that under section 8 of the Civil Servants Act, 1973, seniority not being a vested right of a civil servant, the department in the circumstances of the case, from time to time, has to prepare and revise seniority lists and this exercise is done after inviting and settling objections of the aggrieved persons. It is also a fact that the disputed seniority list of 1982 had been the subject-matter of adjudication by this Tribunal which was finally decided in 1987, and the department had reviewed the entire situation after consultation with the Establishment Division, and issued a provisional seniority list in 1993 whereon objections were invited from the appellant. Therefore, it cannot be said that he was codemned unheard and without notice the seniority position was changed. The learned Member Mr. Noor Muhammad Magsi has rightly held that the appointments of the respondents were regular and they were to regain seniority over the appellant from the date of their regular appointment as Assistants, and I am in full agreement with the findings and the reasonings recorded in his judgment. I would, therefore, also dismiss the appeal.
' ORDER OF THE TRIBUNAL ' In terms of clause (b) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal be expressed in the opinion of the Chairman.