' CH. HASAN NAWAZ (MEMBER).---We are concerned, in this judgment, with the disposal of an appeal under section 4 of the Service Tribunals Act, 1973, filed on 18-1-1990 after due fulfilment of the Statutory requirement of exhausting the departmental remedy.
2. Facts are not in dispute. The appellant passed the Central Superior Service Examination of 1987 held by the Public Service Commission securing 27th position in order of merit. Before taking the test, the first three options for appointment under the Federal Government were the District Management Group, Customs and Excise Group and the Police Service of Pakistan. He was initially allocated to Police Service of Pakistan with effect from 1-11-1988 on the basis of merit position and available vacancies of the competitive examination of 1987 and asked to report for common training at the Academy on 1-11-1988 by offer of appointment dated 28-9-1988. Subsequently, however, on the availability of a few more vacancies in the Customs and Excise Group, he was selected for appointment against one of those vacancies as Assistant Collector (B-17) because of his preference for that group over the Police Service of Pakistan. In pursuance, by letter dated 28-11- 1988 issued by the Central Board of Revenue, he was asked to report for training to the Director- General, Civil Service Academy, Lahore on 1-12-1988 for common training. This was followed by Notification dated 11-12-1988 appointing him as Probationer (B-17) at the Academy.
3. One Mr. Sardar Usman Rana was also one of the successful candidates of the competitive examination of 1987. His position in order of merit being 19th, he was allocated to the District Management Group in accordance with his preference and the availability of vacancy. After having joined the Academy for common training programme on 29-11-1988 he made an application to the Secretary, Establishment Division for his reversion to the Education Department of the Punjab where he had a lien against the post of Lecturer. The request was granted and he was informed through letter dated 11-3-1989 that he was allowed to revert to the Education Department without recovery of training costs as a special case in relaxation of the instructions on the subject.
4. On availability of vacancy in the Punjab Province quota in the District Management Group on account of Mr. Sardar Usman Rana's reversion, the appellant submitted an application to the Secretary, Establishment Division on 2-7-1989 for his allocation to the Group against that vacancy on the ground of his preference expressed at the time of examination and the fact that he was the next available person in order of merit from the Province of Punjab. He was informed by Memo, dated 6-8-1989 that his request could not be allowed "under the existing rule". On receipt of this Memorandum on 26-8-1989 at Karachi, he addressed an appeal to the Prime Minister of Pakistan on 24-9-1989 with the prayer that he may be reallocated against the vacant seat in the District Management Group against the quota of Punjab Province on cancellation of Establishment Division's decision conveyed through memo, dated 6-8-1989.
5. The departmental appeal went without response and he was obliged to have recourse to the Tribunal with the present, appeal praying that the Establishment Division's order conveyed through Memo. Dated 6-8-1989 may be set aside with an order for his reallocation to the vacant seat in the District Management Group.
6. Preliminary objections regarding maintainability of the appeal and limitation aside, the defence in the main is that the appellant had no cause of action in view of the provisions of Establishment Division's O.M.No,1/29/87- TV, dated 19-4-1988. It was pleaded that the vacancy caused in the District Management Group against the quota of Punjab Government on account, of the repatriation of Mr. Sardar Usman Rana, was carried over to the next competitive examination to be held in 1988 under the provisions of O.M., dated 19-11-1988 on account of vacancy having occurred four and a half months after the start of common training programme. The appellant's request for reallocation was rather late, because of having been made on 2-7-1989. It was refused by the competent authority, partly because of the fact that the vacancy had been carried over to the next competitive examination in terms of O.M., dated 19-4-1988 and partly because it was time-barred.
7. The first point which falls for determination is whether, under the circumstances of this case, the appellant was entitled to allocation to the District Management Group against the Punjab quota vacancy caused on account of the repatriation of Mr. Sardar Usman Rana to the Education Department. It obviously emanates from an objection in respect of existence of "a legal cause of action". The respondents' main stay in support of their case is on certain executive instructions issued in the shape of Office Memorandum. The first in point of time is the one issued on 4-11-1987 which we reproduce in detail because of its importance and bearing on the just decision of the point involved: "Establishment Division (Training Wing)
No,1/29/87-TV Islamabad November 4, 1987.
Office Memorandum ' Subject: VACANCIES CAUSED BY REPEATER AND NON-JOINERS The undersigned is directed to say that it has been a practice since Competitive Examination, 1983, that the vacancies caused by repeaters and no-joiners are filled by the next eligible candidates of the same examination. The experience has shown that the vacancies caused by repeaters create uncertainty and the regular annual in take of the Ministries/Divisions concerned is seriously disturbed. Moreover, for filling the vacancies caused by repeaters and non-joiners by the Commission the whole allocation already made is disturbed which apart from causing dislocation, delays the process of reallocation, with the result that the fresh nominees of the Commission cannot join Civil Service Academy, Lahore for training alongwith their batchmates.
2. In view of the above position, it has been decided that the vacancies caused by repeaters and non-joiners will be carried over to the next Competitive Examination with effect from the Competitive Examination, 1987. The following phrase from the offer of appointment may be deleted from the Competitive Examination 1987:- ' The resultant vacancy will be offered to the next eligible candidates immediately thereafter.'
(Sd.) Muhammad Azam Rathore Deputy Secretary (IT)"
8. It may be taken as common ground and this in fact is the respondents case in view of the provisions of O.M., dated 4-11-1987, that ever since the competitive examination of 1983 the practice was that the vacancies caused by repeaters and non-joiners were filled by the next eligible candidates of the same examination. It may also be taken as an admitted fact that this practice was still in vogue when applications for the competitive examination of 1987 were invited, and there used to be a phrase before this examination in the offer of appointment "that the resultant vacancy will be offered to the next eligible candidate immediately thereafter". It was still there in existence before the issuance of O.M., dated 4-11-1987. There can possibly be no denial of the fact that the appellant as also other candidates gave their preference in the relevant application forms for various groups while being positively conscious of the aforementioned practice in vogue under which the vacancies caused by "repeaters and non-joiners" were to be offered to the next eligible candidates. This being so, the appellant's preference for the District Management Group must be taken to have brought about a substantive indefeasible right to the Punjab quota vacancy caused on account of the repatriation of Mr. Sardar Usman Rana to the Education Department. We find it difficult to escape from the fact that he would not probably have offered himself as candidate for the examination in the absence of aforementioned practice. In so far as he goes, the only important aspect of the matter is that he knew it as a fact that a vacancy in the District Management Group, resulting from whatever reason,will be offered to him if he happened to be the next eligible candidate. This undoubtedly constituted a substantive right enforceable under the law.
9. We propose to see the matter from another point. The practice mentioned in the 0.M., dated 4-11- 1987 was not the creation of any executive instructions. In actual fact executive instructions on the point were in acknowledgment of the entitlement of successful candidates of the same competitive examination to be considered for appointment against vacancies meant for that year, whether they were originally announced at the time of inviting applications for examination or resulted on account of subsequent events during the common training programme. The announcement of vacancies for a particular year amounted to properment of an equal job opportunity. The candidates filling the requisite forms for examination with preference for different groups availed of that opportunity; and once so availed, it could not be taken away by a subsequent rule, much less by or on the Authority of an executive instruction; and that too in violation of the provisions of Article 37 or 38 of the Constitution which inter alia enjoin upon the State to create equal job and employment opportunities for all citizens. These Articles embodying the directive principles of policy read with the provisions of Article 25 of the Constitution bring about and ensure equality of every citizen before law, which includes the right to just and fair treatment.
10. We may refer with advantage to Delhi High Court's judgment in Sunder Dev v. Deputy Commissioner of Police and another (1984 (2) SLR-226), where it was held that in the absence of rules, a post could not be carried forward and even if the rules are amended subsequent to the date of application, the amended rules will not apply." Although it was a case decided under the Indian Constitution, it will be worth its while to quote the following observations in support of the view taken by us in the preceding paragraphs: "Opportunity is the one prize a free society has to offer. It assures the individual the scope with in which to make the most of his ability. The petitioner was prepared to face the competitive challenge. But the department would not give him the appointment. The department is even now restricting the opportunity open to him, though the Division Bench broadened the opportunity by abolishing the reservation for Scheduled Castes and scheduled tribes in this limited quota of 10 per cent open to the petitioner as a departmental candidate. Opportunity must offer outlets to talents of every sort. This is what opportunity means. Our Constitution guarantees freedom. Freedom, wrote Zechariah Chaffe, the legal scholar, is not safely but opportunity. And whatever diminishes one threatens the other. Equality of opportunity means opening the door to all which privilege, status, and establishment, had once closed to many. Equality of opportunity means that there will be no artificial inequalities by privilege."
11. It is our considered view that, under the circumstances, the appellant was entitled to the vacancy caused in the District Management Group on account of the reversion of Sardar Usman Rana and that this entitlement is the creation of his preference for this group in the application for appearing in the examination. The principle of equality of opportunity has been recognised in the provisions of Article 25 read with those of Articles 37 and 38 of the Constitution and it cannot be nullified by an arbitrary and unjust exercise of powers. An authority in support becomes available from the case: The State of Mysore v. S.R. Jayaram (AIR 1968 SC 345), which is also based on the Indian Constitution. The following observations are in point: "The principle of recruitment by open competition aims at ensuring equality of opportunity in the matter of employment and obtaining the services of the most meritorious candidates. Rules 1 to 8, 9(1) and the first part of Rule 9(2) seek to achieve this aim. The last part of Rule 9(2) subverts and destroys the basic objectives of the preceding rules. It vests in the Government an arbitrary power of patronage. Though Rule 9(1) requires the appointment of successful candidates to Class I posts in the order of merit and thereafter to Class II posts in the order and merit, Rule 9(1) is subject to Rule 9(2) and under the cover of Rule 9(2) the Government can even arrogate to itself the power of assigning a Class I post to a less meritorious candidate and a Class II post to a more meritorious candidate. We hold that first part of Rule 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidates for recruitment to offices under the State. It is violative of Articles 14 and 16(1) of the Constitution and must be struck down."
12. The existence of a tangible and indefeasible right being there, the next question for determination is whether it could be taken away by the executive instructions issued through O.M.
Dated 19-4-1988. It makes the following reading: "Government of Pakistan Cabinet Secretariat Establishment Division (Training Wing)
Islamabad No, 1/29/87-T.V. Islamabad the 19th April, 1988.
Office Memorandum ' Subject: VACANCIES CAUSED BY REPEATER AND NON-JOINERS ' In supersession of this Division's O.M. Of even number; dated 4th November. 1987 on the above subject, the undersigned is directed to say that any vacancy caused due to repeaters or non- joiners within two weeks of the starting of the training course at the Civil Services Academy, shall be filled up from amongst the candidates of the same examination. The vacancies so caused after two weeks of the start of the Academy training shall be carried over to the next competitive examination.
(Sd.) Muhammad Azam Rathore Deputy Secretary (IT)"
13. A closer application to the provisions of this C.M. Would show that they hardly make any sense.
In the first place, we have not been able to understand what 'exactly is conveyed by the word "repeater", when it is used in relation to District Management Group. As we have it from the dictionary, "repeater" in the present case would be one who repeats an examination, obviously with the purpose of improving his merit, so that he may become entitled to a group of his choice. The District Management Group ordinarily supposed to be at the top, there would be no repeater in this group; considering that a candidate who becomes entitled to placement in this group in order of merit would not repeat the examination, even if he wishes to go down to another group. This being so, no vacancy can ever be caused in the District Management Group of a "repeater".
14. Another aspect of the matter is also available. The candidates allocated to other groups on merit may repeat the examination in order to improve their position for District Management Group. Vacancies can thus be possibly caused on account of "repeaters" in those groups. But even in that case, it is not possible to visualise a situation where such vacancies will come about within two weeks of the start of common training course in the Academy. As for instance a candidate allocated to Customs and Excise Group in consequence of 1987 competition would repeat his examination in the year 1988, may be after start of the common training with the successful candidates of 1987 examination. The result of 1988 would be announced in the later part of the year 1989 and by the time a candidate with improved position leaves his group, the common training of the previous batch would already have come to an end. Therefore, how can there be a situation where a vacancy would be caused by a repeater within two weeks of the start of common training.
15. This was with regard to the phrase "any vacancy caused due to repeaters". The expression "any vacancy caused due to non-joiners within two weeks of the starting of training course," is equally interesting. If a candidate fails to join on the first day of start of the training programme, a vacancy will be caused right from that day and we find it difficult to comprehend a situation - where a vacancy would be caused within two weeks of the start of the training. Therefore, the expression that "any vacancy caused due to repeaters or non-joiners within two weeks of the start of the training course" hardly makes any sense. It is not possible to conceive a situation where a vacancy would be caused within two weeks. What the competent authority seems to have intended to convey was that vacancy thus caused, on the first day of the start of training programme, will be filled within two weeks. We believe that this in fact was the intention; but then, if it be so, that would be altogether a different story, which could be conveyed by different phraseology. What was intended to be expressed is certainly not there.
16. Further, the expression "the vacancies so caused after two weeks of the start of the academy training" is also meaningless and suffers from inherent unsoundness, considering that no vacancy can possibly be caused after two weeks of the start of the training. As already pointed out, a vacancy is caused due to non-joiners right from the first day, and we fail to comprehend what the competent authority meant by saying "vacancy so caused after two weeks." It comes to our mind that in both the cases a vacancy is caused by a non-joiner on the very first day and it is the job of the concerned authority to fill it, whether it is done within two weeks or after two weeks of the start of the training programme. We see absolutely no reason why an eligible candidate should be made to suffer when the thing is to be done, not by him but by the concerned authority. Fact of the matter is that the O.M. In question is not only unhappily worded, it is meaningless and absurd.
Therefore, on account of the inherent infirmity alone, it did not take away the right acquired by an eligible candidate of the same competitive examination on the basis of his preference for a particular group.
17. The aforementioned considerations apart, even if it be assumed that the provisions of this O.M.
Do make some sense, it is not applicable to the appellant's case. This is because the vacancy caused in this case was not due to any "non-joiners" in the sense in which this word has been used in the O.M. Mr. Sardar Usman Rana did join the common training programme on 1-11-1988 and there could be no occasion of a vacancy "within two weeks" as the concerned authority has chosen to express. After having so joined, by application dated 20-11-1988 he made a request to be allowed to revert to his parent department. It remained pending for decision till 11-3-1989 when he was eventually informed that his repatriation had been allowed. The decision was made after about four and a half months of the start of the programme. The appellant had every right to ask the competent authority to consider him for the vacancy, which was the result of a situation, obviously outside the ambit of O.M. Dated 19-11-1988.
18. We now proceed to examine the matter on the surmise that O.M. Dated 19-4-1988 was meant to serve a purpose. Even then it is not possible to hold that it is enough to take away the appellant's right to be considered for the vacancy. Article 240(a) of the Constitution provides that, subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined: (a) in the case of services of Federation, posts in connection with the affairs of the federation and all Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament)."
It was contended by the appellant's learned counsel, and not without substance either, that these provisions cut across the principle of "eminent domain" and they do not leave any scope for regularisation of appointment to all Pakistan Services by executive instructions, in particular when no order adverse or detriment to the interests of the citizens can be passed, unless it has the backing of a properly framed law or rules.
19. It was in pursuance of Article 240(a) of the Constitution that the Civil Servants Act 1973 was enacted in order to regulate by law, the appointments of persons to and the terms and conditions of persons in the service of Pakistan. Section 25 of the Act provides that "the President or any person authorised by the President in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act." Clause 2 of the section lays down that Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." It is clear from these provisions that the purpose of this Act regarding terms and conditions of service could be carried out only by making rules. Clause 2 of the section, inter alia, saves only such instructions on the subject as were in force immediately before the promulgation of the Act and that too only to the extent of consistency with its provisions. The subsection provides that such instructions will be deemed to have been passed under the Act, The fact that it saves only the existing instructions, implies that future instructions in respect of terms and conditions of service are forbidden. These provisions are clearly suggestive of the fact that after the enforcement of the Act, terms and conditions of service will no longer be regulated by executive instructions. Article 240 of the Constitution read with section 25 of Civil Servants Act, 1973, necessarily leads us to the conclusion that O.M. Dated 19-41988 is absolutely a meaningless document and that it does not derogate anything from the appellant's right to be considered for the post.
20. The Lahore High Court observations in Ch. Yar Muhammad Durraiana v. Government of Punjab and another (1992 PLC (C.S.) 95) may be relied upon in support. It was held as follows: "It is painstaking to note that although Government has power under section 23 of the Punjab Civil Servants Act, 1974 to frame rules as found necessary and expedient for carrying out the purpose of this Act but instead of making rules governing different aspects of the terms and conditions of Civil Servants namely, promotion, pro forma promotion, transfers, Departmental appeals/representations etc. It is always deemed convenient to issue policy instructions, letters and circulars. The same are issued mostly keeping individual case in view and without taking into consideration the scope of the provisions of law. The other aspect is that these circulars, letter are mala fide kept secret. The result is that the concerned civil servants are not aware of such policies.
The officials dealing with their rights some times misuse their position. When they are to help somebody then these circulars are pressed into service and if they do not want to get the needful done then there is no reference to the circulars. The Punjab Government has not even cared to get guidance from the rules framed by Federal Government in various matters, like promotion policy, appeal transfer, rules."
21. There is another point worth notice. The appellant's appeal addressed to the Prime Minister of Pakistan on 24-9-1989 does not appear to have been placed before him for orders. The respondents' pleadings on the subject are that the representation was received in the Establishment Division through the CBR in October 1989 and reply was given to them on 12-12-1989, where they were informed that the departmental appeal was not tenable "in term of proviso 2 of Rule 4(1) and Rule 5(4) of the Civil Servants (Appeal) Rules, 1977. The proviso says that "no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher pest or grade." Rule 5(4) provides that "every appeal shall be submitted within a period of thirty days of the communication of the order appealed against". It is evident that the Establishment Division did not place the appellants departmental representation before the competent authority because they thought that it is incompetent and time-barred. If it be held that the departmental representation was competent and within time and that the Establishment Division had no justification for withholding it, the obvious result would be that the appellant had been deprived of the opportunity of consideration of his case by the competent authority. A remedy in the shape of departmental representation was available to him and he was deprived of it. Other reasons notwithstanding, the Establishment Division O.M. Dated 12-12-1989 addressed to the Central Board of Revenue saying that the departmental representation is not tenable, is obviously without any legal effect. The appellant's prayer for allocation to the District Management Group was never placed before the competent authority for consideration, with the result that he has been deprived of the exercise of a lawful right.
22. Before leave of the matter is taken, we may deal with the arguments of respondents' learned counsel. His first contention was that the appeal is time-barred. The argument was that the appellant's departmental appeal dated 24-9-1989 addressed to the Prime Minister was received in the Establishment Division through the CBR in October 1989 and that they were informed of its rejection by O.M. Dated 12-12-1989. It was further submitted that the appeal filed on 18-1-1990 is time-barred. We do not find it possible to agree. At the end of O.M. Dated 12-12-1989, the CBR has been asked to inform the appellant of the rejection of his departmental appeal. There is, however, nothing on the record to show that the appellant was accordingly informed of this fact. It was contended by his learned counsel, and rightly so, that the departmental representation dated 24- 9-1989 having gone without any response, the present appeal filed on expiry of 90 days was within time.
23. Another argument was that the departmental representation was not within time. But even this contention is without any force. Mr. Sardar Usman Rana was informed by letter dated 11-3-1989 that his request for reversion had been granted. Since the letter was addressed to him, there is hardly any justification for presuming that it must have come to the appellant's notice. He made a representation on 2-7-1989, after he came to know that a vacancy in the District Management Group had come about on account of reversion of Sardar Usman Rana. His representation was, therefore, within time. He was then informed through Memo. Dated 6-8-1989 that his request could not be granted under the existing rules. It was addressed to his Shandara's address, when he happened to be at Karachi at the National Institute of Customs and Excise for specialised training.
He claims to have received a Memo. On 26-8-1989 after it had been diverted to his Karachi's address. There is no material on the record to show that this assertion is factually incorrect. After having received the Memo, he promptly addressed a representation to the Prime Minister on 24-9- 1989. The appeal is obviously within time.
24. Another contention is that the appeal is incompetent under section 4(1)(b) of the Act read with second proviso to rule 4(1) of the Civil Servants (Appeal) Rules, 1977. Section 4(1)(b) of the Act provides that "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." A closer application to these provisions would show that learned counsel's contention is without any substance. The provision is that no appeal shall lie to the Tribunal against an order or decision of departmental authority to determine the fitness or otherwise of a person to be appointed to a particular post. No such order or decision is, however, involved in this case. The appellant was one of the successful candidates of 1987 competition and he secured 27th position in order of merit. His claim to be considered for allocation to District Management Group under the circumstances of this case did not give rise to any occasion for the competent authority to determine "his fitness or otherwise for appointment to a post," within the meaning of section 4(1)(b) of the Act. The source of his claim was the practice in vogue before the year 1987 regarding allocation of a vacancy in a different group to an eligible candidate. He had already been declared successful in the competition and his position in order of merit having entitled him to claim the vacancy, he was not required to pass another fitness test. This being so, the Establishment Division's decision conveyed through Memo. Dated 6-8-1989 did not enjoy the status of an order or decision to determine his fitness or otherwise for appointment to a post, as would have attracted the provisions of section 4(1)(b) of the Act.
25. There is yet another objection. It was contended by the respondent's counsel that an appeal under section 4(1) of the Act is competent only if any Civil Servant is aggrieved by any final order made by a departmental authority in respect of the terms and conditions of his service. It was argued that the impugned order was not in respect of the appellant's terms and conditions of service within the meaning of the section and no appeal was, therefore, competent. Here again we do not find it possible to agree. As already noticed before, he had given his preference on all the relevant occasions for the District Management Group. This preference had to be respected by the competent authority on the basis of his merit position and we feel no hesitation in saying that under the circumstances, it constituted one of the terms and conditions of his service, as could bring his grievance within the four corners of section 4 of the Act.
26. The learned counsel's last contention was that the appeal was bad for non-joinder of necessary parties. It was argued that grant of necessary relief may adversely affect certain persons in the cadre and they should have been impleaded as necessary parties. Prayer part of the appeal shows that no relief has been sought against any person except the Establishment Division and the competent authority. All what the appellant sought in his appeal is the determination of the question of his entitlement to claim the vacancy caused by the reversion of Sardar Usman Rana.
His case is that he had the right to be considered against that post on account of his merit position.
In this view of the matter, it is not possible to hold that the appeal is bad for non-joinder of necessary parties.
27. Lastly, we might as well mention a very important circumstance having a bearing on the just decision of this case. One Mahmood Alam Mahsud was also one of the successful candidates of 1987 competition. On account of his merit position, he was allocated to the Accounts Group.
However, when he was undergoing specialised training for his service, his allocation was changed to Police Service of Pakistan and an offer of appointment was made to him by letter dated 6-12- 1989. The appellant's learned counsel has placed a copy of this letter on record. Establishment division's letter on the subject endorsed to the Training Wing on 2-12-1989 has also been placed on record. It is to the following effect: ' GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION (Training Wing)
Subject: Change of Occupational Group of Mr. Mahmo Alam Mahsud from Accounts to Police Service.
' Mr. Mahmoud Alam Mahsud of FATA whose particulars are enclosed (Annex. I) was allocated to the Accounts Group on the basis of Competitive Exam., 1987. Presently he is undergoing the specialised training of the Accounts group.
2. The competent Authority has been pleased to change his service group from Accounts to Police.
A copy of the orders of the competent authority is enclosed as Annex-II.
3. Mr. Mahmoud Alam Mahsud will get his seniority in the Police Service of Pakistan (PSP) alongwith his batchmates of 1987, Competitive Examination. He will undergo the specialised training of the Police Service of Pakistan at National Police Academy (NPA) in 1990.
4. He will be adjusted in PSP against a FATA vacancy to be filled in on the basis of 1989, Competitive Examination. In case no vacancy falls in the quota of FATA in 1989 the same will be created and adjusted in the subsequent year/years.
5. It is, therefore, requested that Mr. Mahmoud Alam Mahsud may please be given an offer of appointment in Police Service of Pakistan (PSP) in terms of paras. 3 and 4 above under intimation to the Training Wing, Department of the Auditor-General of Pakistan, and the National Police Academy (NPA), Islamabad.
(Sd.) M. Shaukat Iqbal Khan, Section Officer (T.V.)"
28. It appears from this letter that his allocation was changed from Accounts Group to the Police Service of Pakistan when he was undergoing specialised training of his group after the conclusion of the common training. Not only this, it was ordered that he will get his seniority in the Police Service of Pakistan alongwith his batchmates of 1987 competitive examination and that he will undergo specialised training of Polite Service of Pakistan in the National Police Academy in the year 1989. Further, he was to be adjusted in PSP against a FATA vacancy to be filled on the basis of 1989 competitive examination. The letter also said that "in case no vacancy falls in the quota of FATA in 1989, "the same will be created and adjusted in the subsequent year/years." It was submitted by the appellant's learned counsel as to why this could not be possible in the case of the appellant who had claimed his entitlement to a vacancy in District Management Group during the course of common training, when specialised training had not yet even been started.
29. We feel forced to say that the learned counsel's contention is not without substance. We are conscious of the fact that change of group in the case of Mr. Mahmoud Alam Mahsud was ordered under different circumstances, it nonetheless shows that change of group is legally possible even after conclusion of the common training programme, during the specialised training of the group of original allocation. The appellant's case is rather on a better footing, in that the source of his claim is not an exercise of discretion, but a legal entitlement. The change of group in the case of Mr. Mahsud is not, therefore, being used to serve as a precedent. It is, however, an example relevant for a just and fair decision of this case. In view of the situation emerging out of the case of Mr. Mahsud who incidently happens to be of the same batch as the appellant, the least which can be said of his request is that it is not without force either, particularly when his claim to allocation to the District Management Group is based upon a substantive right.
30. In this view of the matter and for the reasons mentioned above, we hold that the appellant was entitled, as a matter of right, to be allocated to the District Management Group against the vacancy caused on account of repatriation of Sardar Usman Rana to the Education Department; that the provisions of O.M. Dated 19-4-1988 are not applicable to the present circumstances and that in any case, they did not divest him of the aforementioned right to be so allocated. It is further held that on his allocation to the District Management Group, he will be deemed to have been directly recruited by the Federal Service Commission in consequence of the advertisement of 1987, within the meaning of Rule 2(1) of the Civil Servants (Seniority) Rules, 1993 made by the President under section 25 read with section 8 of the Civil Servants Act, 1973.
31. The appeal is accordingly accepted and the Establishment Division (Training Wing)'s decision conveyed through Memo. 1/4/88-T.V., dated 6-8-1989 is set aside. The appellant's reallocation to the District Management Group is ordered in terms of the prayer made by him in the appeal. There will be no order as .To costs. Parties to be informed.
' MUHAMMAD ISMAIL (MEMBER).---I have gone through the judgment initiated by my learned brother Ch. Hasan Nawaz, Member, in this case. With due regard for the views expressed by him in the judgment, I do not find it possible to agree with the conclusions arrived at by him for the reasons mentioned below:-
1. The first and the foremost question for determination is whether the present appeal filed by the appellant on 18-1-1990, is maintainable and legally competent under section 4 of Service Tribunals Act, 1973. According to section 4(1) of the Service Tribunals Act, any civil servant aggrieved by any final order, whet her original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal. The Appellant in the present case, has not pointed out any such order by which he is aggrieved. The record also shows that there is no original or appellate order by which any of the terms and conditions of appellant's service have been affected. The present appeal, being against no final order of the departmental authority, is not competent under section 4(1) of the Service Tribunals Act, 1973.
2. Under section 5(1) of Service Tribunal Act, 1973, a Tribunal may confirm, set aside, vary or modify the order appealed against. The appellant has not mentioned any such order in his appeal, which may be set aside or modified by this Tribunal.
3. The appellant was initially allocated to Police Service of Pakistan on the basis of his merit position in the CSS Competitive Examination held in 1987. Subsequently, on availability of some more vacancies in the Customs and Excise Group, he was offered the post of Assistant Collector (B-17) in Customs and Excise Group, keeping in view his preference for that group and was appointed as such on probation by the competent authority, vide Notification dated 11-12-1988. This in a way, was a decision, determining the fitness of the appellant for appointment to a particular post/group and as such the Tribunal has no jurisdiction to entertain this appeal, as it is hit by section 4(1)(b) of the Act, which provides that, "no appeal shall lie to a Tribunal against an order or decision of a departmental authority, determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade.
4. The appellant was appointed as Assistant Collector (B-17) in the Customs and Excise Group under the terms and conditions clearly specified by the Central Board of Revenue, in the offer of appointment dated 28-11-1988. The appellant accepted these terms and conditions and joined the Civil Service Academy, Lahore, on 1-12-1988 for common training. The memo of appeal filed by the appellant, does not disclose any order, whether original or appellate made by the departmental authority, in respect of any of these terms and conditions of his service, by which he feels aggrieved. It is also not contended by the appellant that there has been any violation of the terms and conditions of his service. Under the circumstances, he cannot invoke the jurisdiction of this Tribunal in view of the section 4(1) of the Service Tribunals Act, 1973.
5. It had been a practice, since the CSS Competitive Examination, 1983, that the vacancies caused by repeaters and non-joiners were filled by the next eligible candidates of the same examination.
Since this practice was found unworkable due to certain practical difficulties, it was decided by the Competent Authority vide Office Memo. Dated 4-11-1987 that the vacancies caused by repeaters and non-joiners will be carried over to the next competitive examination with effect from the CSS Examination of 1987. This decision was, however, revised subsequently and it was decided vide Office Memo dated 19-4-1988, that any vacancy caused due to repeaters or non-joiners, within two weeks of the starting of the training course at the Civil Service Academy, shall be filled up from amongst the candidates of the same examination. The vacancy so caused after two weeks of the start of the Academy Training, shall be carried over to the next competitive examination. This Policy decision must be within the knowledge of the appellant but it was never challenged by him at the appropriate time before any forum. In view of this factual position, I am afraid, it will not be possible to grant the requisite relief, if it has subsequently gone against the interest of the appellant. In case the appellant had any grievance, on account of the above policy decision of the competent authority, contained in Office Memo. Dated 19-4-1988, he should have agitated the matter well in time but he never raised any objection against this decision at any stage. The result is that we do not have anything in support of contention of the appellant, that the Office Memo dated 19-4-1988 issued by the competent authority was in violation of any rule on the subject. It may not be out of place to mention here that it was strictly in accordance with this policy decision contained in the O.M. Dated 19-4-1988, that the appellant himself was offered the post in the Customs and Excise Group, from the Police Group to which he was originally allocated. This confirms the correctness of the Policy decision in question which is now challenged by the appellant.
6. The Federal Public Service Commission, initially recommended the appellant for appointment to the Police Group and subsequently he was offered a post in the Customs and Excise Group on the recommendation of the FPSC within the period stipulated in O.M. Dated 19-41988. As such the decision of the Government to appoint the appellant in the Customs and Excise Group was based upon the advice tendered by the FPSC. In the circumstances, the appellant was not entitled for appointment in the DMG Group as FPSC never tendered such an advice in favour of the appellant.
7. The appellant claims appointment against the vacancy caused due to repatriation of Sardar Usman Rana to his parent department on 11-3-1989. The appellant was under going common training in the civil service academy, alongwith Sardar Usman Rana and there is hardly any justification for believing that this fact did not come to the appellant's notice/knowledge at the relevant time. The record shows Chat the appellant made a departmental representation on 2-7- 1989 for his allocation in the DMG Group in place of Mr. Usman Rana, which was after about 113 days. The appellant has failed to furnish any plausible explanation for the inordinate delay, in submitting his departmental representation to competent Authority. Filing of a depaftmental appeal beyond the prescribed period of limitation is not an appeal in accordance with the provisions of Civil Servants (Appeal) Rules, 1977 and the present appeal is therefore heavily time- barred.
8. The appeal is also bad for non-joinder of necessary parties. The appellant prays for his induction in DMG Group on the basis of the CSS Competitive Examination held in 1987, whereas, a large number of persons have been appointed/inducted to this Group, during the intervening period of about 5/6 years. The seniority of all the appointees is bound to be affected, if this appeal is allowed at this stage. The failure of the appellant to implead those persons, as party in the present appeal, is contrary to the law laid down by the Honourable Supreme Court of Pakistan, in the case reported in 1986 SCMR 680. In this context I also refer to rule 7 of the Service Tribunals (Pr.) Rules, 1974, wherein it is provided that in every memorandum of appeal, the competent Authority against whose orders appeal is preferred and any other party to the dispute, shall be shown as respondents. The appellant has failed to comply with this requirement which makes the appeal not maintainable as per rules.
9. For the foregoing reasons the appeal is dismissed, with no order as to costs. Parties to be informed.
' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant, Mr. Saeed Iqbal. Wahlah, who is working as Assistant Collector, Customs and Excise, has preferred this appeal for reallocation to District Management Group. The history of the case has been given by both the learned Members. Since there is difference of opinion between the two Members, this matter has come up before me as Chairman under section 3-A of the Service Tribunals Act, 1973.
2. Mr. Ch. Hasan Nawaz, learned Member has initiated the leading judgment and has allowed the appeal and as a consequence thereof the result will be that the appellant is to be allocated District Management Group. The other learned Member, Mr. Muhammad Ismail, has not agreed with Mr. Ch. Hasan Nawaz on the points of law and merits and has dismissed the appeal.
3. The appellant after qualifying the Competitive Examination (CSS) 1987 on merit, was allocated Police Service of Pakistan vide Establishment Division Letter No, 11/5/88-E.3 (Police), dated 28-9- 1988 and subsequently he was reallocated to Customs and Excise Group vide CBR letter dated 28- 11-1988 on the basis that vacancy occurred within 15 days of start of training which he joined and completed with the batch-mates of the 16th Common Training Programme. The appellant claims allocation to DMG on the ground that seat fell vacant was of Punjab quota and he being next qualified, on the basis of a post which occurred due to repatriation of one Mr. Sardar Usman Rana to his parent department. There was a practice in vogue since 1983 Competitive Examination that the vacancies caused by repeaters and non-joiners were filled by the next eligible candidates of the same examination. This created problems to the Ministries and the Establishment Division (Training Wing) issued Office Memorandum No, 1/29/87-T.V., dated 4-11-1987 and it is reproduced hereinbelow: "Establishment Division (Training Wing)
No, 1/29/87-T.V. Islamabad November 4, 1987.
OFFICE MEMORANDUM ' Sub: VACANCIES CAUSED BY REPEATER AND NON-JOINERS The undersigned is directed to say that it has been a practice since Competitive Examination, 1983, that the vacancies caused by repeaters and non-joiners are filled by the next eligible candidates of the same examination. The experience has shown that the vacancies caused by repeaters create uncertainty and the regular annual intake of the Ministries/Divisions concerned is seriously disturbed. Moreover, for filling the vacancies caused by repeaters and non-joiners by the Commission the whole allocation already made is disturbed which apart from causing dislocation, delays the process of reallocation, with the result that the fresh nominees of the Commission cannot join Civil Services Academy, Lahore for training alongwith their batchmates.
2. In view of the above position, it has been decided that the vacancies caused by repeaters and non-joiners will be carried over to the next Competitive Examination with effect from the Competitive Examination, 1987. The following phrase from the offer of appointment may be deleted from the Competitive Examination, 1987: `The resultant vacancy will be offered to the next eligible candidates immediately thereafter.'
(Sd.)
(Muhammad Azam Rathore) Deputy Secretary (IT)"
' The above Office Memo. Was superseded and the following Office Memorandum No, 1/29/87-T.V., dated 19th April, 1988 was issued: "Government of Pakistan Cabinet Secretariat Establishment Division (Training Wing)
No, 1/29/87-T.V., Islamabad 19th April, 1988.
OFFICE MEMORANDUM Sub: VACANCIES CAUSED BY REPEATERS AND NON-JOINERS ' In supersession of this Division's O.M. Of even number, dated 4th November, 1987 on the above subject, the undersigned is directed to say that any vacancy caused due to repeaters or non- joiners within two weeks of the starting of the training course at the Civil Services Academy, shall be filled up from amongst the candidates of the same examination. The vacancies so caused after two weeks of the start of the Academy training shall be carried over to the next competitive examination.
(Sd.)
(Muhammad Azam Rathore) Deputy Secretary (IT)"
' In view of the latest position, the vacancy so caused after two weeks of the starting of the training course at the Academy was to be carried over to the next competitive examination. The vacancy in the DMG caused after 4-1/2 months in view of earlier O.M. Of 1987 are the vacancies of repeaters and were to be carried over to the next competitive examination with effect from 1987. In both the letters of offer of appointments of the appellant, there is no such clause as in the year 1988 this position was changed but in the revised O.M., the time limit of 15 days was fixed and the appellant got the Customs Group. He is still not satisfied and requests that he may be given DMG. His case does not fall under both the Office Memoranda and there is no such clause in the terms and conditions of service offered to him that he is entitled to a post in DMG. There are no hard and fast rules to this effect of which the terms and conditions of the appellant have been violated. He acquired training in the Customs and joined there in 1988-89 and it will be futile to repeat this exercise contrary to the rules and regulations or terms and conditions of the appellant and again allocate another Group after a number of years when so many' persons have been absorbed in DMG thereafter and the appellant if absorbed will claim seniority and benefits retrospectively, on so many persons, which cannot be considered as they are not party in this appeal, especially in the year 1994. Therefore, the appellant has no vested right or case on merits as none of his terms and conditions have been violated. I am in full agreement with the findings recorded by Mr. Muhammad Ismail, Member of point of law and facts, and I would also dismiss this appeal.
' ORDER OF THE TRIBUNAL ' By virtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal shall be in terms of the opinion of the Chairman and accordingly the appeal is dismissed.