MUNAWAR AHMED MIRZA, J.- These three appeals namely C.As. No. 247, 917 and 918 and C.P.1.A. No. 664 of 1995 have slightly different facts, but involve determination of identical points of law', therefore, same are being decided through common judgment. [*]"(i) all ministerial posts in the Federal Secietariat from Grades 1 tcI6,iii posts of Section Officers in Grades 17 and 18.(iii) such other posts including posts in Grades 19 and 20 as may be specified and included in the Group from time to time."3. Dispute cluminating in present proceedings relates to fixation of seniority- amongst Section Officers in Grade B-17 and B-18. For properly appreciating read controversy, it would be necessary to acquaint with composition, recruitment, and promotion of group in grades B -17 and B-18. Relevant articles of charter creating O.M.G, are reproduced below': -"4. Initial composition of the. Group in respect of posts in grade 17 and above.- The following officers including those who are on temporary7 deputation outside the Federal Secretariat shall be included in the group on its initial Constitution viz:- Section Officers who already stood encadred in the former CSS Cadre through notifications issued from time to time.(ii) Section Officers who were eligible to be encadred but notifications could not be issued before the abolition of the CSS Cadre.(iii) Section Officers directly recruited by F.P.S.C, till the end of 1974.(iv) Ad-hoc Section Officers who qualified in the promotionalexaminations of 1967 and 1969 but who could not be adjusted on regular basis due to non-availability of posts in the departmentalquota.(v) Ad hoc Section Officers who appeared in the promotionalexaminations of 1967 and 1969 and were cleared by revising the standard in consultation with the F.P.S.C.5. Working strength of Section Officers. - The strength of duty posts of Section Officers in Federal Secretariat will for the present, be 750. [10% of these posts will be reserved for appointment on deputation on tenure basis or by transfer of officers in BPS 17 and 18 from other occupational groups/cadres and provincial civil servants in accordance with para 9(A)], There will be leave, training and deputation reserve as under:-<*rvhjg '.Ax acting charge basis may be appointed on legtilar basis to the posts held.By them, depending on their merit position in the promotional examination, sendee record and availability of vacancies in the promotion quota, 'on the recommendation of Departmental Promotion Committee].Id Lateral ently.-- In order to meet the shonage of officers in the Federal Secretariat or to meet specific requirements, appointments may be made through lateral ently.. Appointment through lateral ently will be made against 2/3rd vacancies reserved for direct recruitment.Id) Provision for accelerated promotion to the post of Grade 1 7.- In addition to the provisions made at areAregularised in due course of time. As regards 35 incumbents of 1985 examination, it is hoped that they will be regularised during the current year. This course of action would also reduce the frustration among the senior batches of 1984-85 exams as it would solve their problem of regularisation. This course of action does not require approval of the Prime Minister as it would be within the overall promotion quota but actual regularisation is being restricted for administrative reasons.9. As for alternative at (c) of paragraph 6, as stated earlier, the OMG charter was amended only in 1985 to make acting charge appointment as Section Officer. According to the opinion of Justice Division to whom the case of regularisation was referred, the Section Officers appointed on acting charge basis prior to the said amendment have a good case for regularisation as the amendment cannot have retrospective effect. Besides, 230 officers who have already been regularised there are about 70 officers who fall in this categoty and could be regularised to rectify the lapse. Besides these 70, another 70 officers could be regularised as one time exercise against the overall promotional quota in BPS 17 as shown below:-Duty posts. 75015% Dep. And Training Reserve 1328621/3 departmental quota 144 Existing Departmental Section Officers (B-17) 4 Posts available 140 Thus all 140 from amongst 269 acting charge section officerscould be regularised without resorting to any amendment in the chatter of OMG. The rest 129 may get regularisation in future years on the basis of their 1/3rd quota against direct intake of section officers through CSS. This may take about 3 to 4 years to solve the problem. This course of actioh is almost identical to alternative (b) in its ultimate implementation".
6. ' The matter was taken up at a higher level in the meeting of theSecretaries Committee held on 12.4.1990, wherein certain details about existing vacancies and actual posts was provided and three alternatives were suggested for resolving the controversy. The minutes and proposal are reproduced below:- "The Establishment Secretary stated that the proposal in the working paper related to regularisation of 269 Acting Charge Section Officers employed in various Ministries/Divisions.
Explaining the background, it was stated that up to 1979 recruitment to the post of Section Officer in BPS 17 was made in the ratio of 2/3rd through direct recruitment and 1/3rd by promotion, according to the prescribed procedure. However, on recommendation of the Civil Service Commission, direct recruitment of Section Officers was stopped in 1980. Although the Commission's other recommendations did not make any headway, the direct recruitment of Section Offices remained suspended up to 1988. The stoppage of direct recruitment in the OMG resulted in acute shortage of Section Officers. To overcome the shortage it was decided in 1981 to appoint Section Officers in excess of the prescribed quota of 1/3 on acting charge basis through promotional examinations conducted by the FPSC from amongst serving officers in lower ranks, In this manner 500 Section Officers were appointed on acting charge basis since 1981. Out of these 500 Section Officers 281 have so far been regularised in BPS 17 against 1/3rd promotional quota vacancies. On availability of vacancies in BPS 18, all these officers have since been gradually promoted to BPS 18. Thus, there were still 269 acting charge Section Officers awaiting regularisation.
"Proposals It was stated that three alternatives were available to resolve the problem i.e.
(a) all the 269 acting charge Section Officers may be regularised in one go;
(b) a middle course may be adopted by regularising at least half of these and leaving the rest to get regularisation against 1/3rd prescribed quota ; and
(c) the acting charge Section Officers should be regularised only against 1/3rd quota vacancies reserved for promotion.
"From the above minutes it also reveals that final decision was taken whereby half of 269 persons working as Section Officers on Acting Charge Basis, were to be regularised. Extracts of above decision appearing in the impugned judgment, is reproduced hereunder:- "Half of the 269 acting charge Section Officers should be regularised, the remaining officers should be regularised against the 1/3rd quota prescribed to be filled in by promotion.
"7. Record indicates that in pursuance of above decision 135 Section Officers working on acting charge basis were regularised. Initially through notification dated 7th July, 1990 No. 13/2/89-OMG eligible persons who had qualified departmental promotional examination were placed on regular footing in Management Group B-17 with effect from 31.12.1989. Similarly, notifications were issued on 17.9.1990. 23.3.1990. 7.1.1991 and 16.3.1992 whereby remaining 26 persons were also regularised in the same manner with effect from 31.12.1989 It may be mentioned here that total cadre strength of OMG on 31.12.1989 was 937 iNine hundered thirty seveni breakup whereof is given hereunder:-
(1) Duty posts. -750
(ii) . Leave reserve 1109/ of duty posts i. -75
(iii) Training & deputation reserve -112115 7 of duty posts).
Total: 937
8. The direct recnaites on account of retrospective regularisation otpromotees with effect from 3i.
12.1989 w.Ere seriously aggrieved. The\ accordingly submitted representation to departmental authority. Eventually validity of their regularisation was challenged through several appeals before Federal Service Tribunal. Learned Chairman Federal Service Tribunal by means of judgment dated 6.10.1992 declared that regularisation of promotees ride notification dated 7.7.1990 or thereafter could not be made effective from 31.12.1989. Same was accordingly deleted. Whereas learned Member. Federal Service Tribunal vide his judgment dated 14.10.1992 dismissed appeal of direct recruits. Accordingly decision of Federal Service Tribunal was rendered on 15.10.1992 in terms of decision recorded by the Chairman. Operative portion is reproduced:- "For' the reasons recorded above, the appeals were allowed to the extent that the regularisation of the Acting Charge Section Officers vide notification dated 7.7.1990 could not be made effective from 31.12.1989 and the words "with effect from 31.12.1989" in the opening paragraph of the notification shall be stand deleted.
"The above judgment was assailed by way of petition for leas e to appeal No.11 1993. Concluding portion of ing Order dated 24th April. 1993 is as under:- "2. Mr. Samdani. Learned Sr. ASC appearing for the petitioners has vehemently contended that the finding of the learned. Chairman of the Tribunal that on 3 i. 12.1989 there did not exist any vacancy from 1/3rd promotion quota, is contrary to the record inasmuch as respondent No. 1 in their comments tat page 87 of the paper book) admitted the factum that there were vacancies to the extent of 144 posts, against which 4 persons w ere promoted. He has also invited our attention to the Working Paper for the Secretaries Committee under . The sub-caption"Regularisation of Acting Charge Section Officers", wherein at page 251 it has been stated that thus in all 140 from amongst 269 acting charge Section Officers could be regularised without . Resorting to any amendment in the character of OMG. He has further submitted that since the was difference of opinion between the Chairman and the Member of the Tribunal, the matter requires further examination by this Court.
3. We are inclined to grant leave to consider, whether on the basis of the material available on record, the learned Chairman of the Tribunal had rightly held that the petitioners could not have been regularised with effect from 31.12.1989. Leave is. Accordingly granted".
9. Appellant Waqar Ahmad in C.A No. 917/93 and 29 others qualified competitive examination during year 1990. They were directly recruited as Section Officers (B-17) in the Officer Management Group of Federal Sefcretariat on 9,10.1991. Appellant has expressed his grievance against issuance of Notification No. 13/2/89-OMG.I, dated 9th January,1993, whereby earlier five Notifications issued from 7.7.1990 to 16.3.1991 concerning regularisation of promotees with effect from 31'st December,.1989, were amended. According to appellant, the promotees who, on the basis of quota adjustment, factually rank junior to direct recruitees had become senior to them; adversely effecting their sendee rights. Departmental Representation was made and eventually Sendee Appeal No. 163(R) of 1993 was filed on 31.5.1993 before Federal Sendee Tribunal challenging above notification. The appeal was, however, dismissed in limine on 1.8.1993. Appellant Waqar Ahmad feeling dis-satisfied; had filed C.P.1.A. No. 572/93 wherein this Court granted leave, vide Order dated 21.12.1993.
C.A.No. 718/93.
10. Appellant Sikandar Aqeel Ansari alongwith 16 others having qualified CSS competitive examination held in 1989 were directly recruitedas Section' Officers (B-17) on 1.12.1990. It is their case that Notification ' issued by Establishment Division No. 13/2/89-OMG-I, dated 9th January,1993 in pursuance of judgment passed by Sendee Tribunal amended five other notifications of the Establishment Division issued during 7th July,1990 and 16th March, 1991, concerning promotion quota of the Section Officers already working in various Ministries/Divisions on acting charge basis. After filing representation to competent departmental authorities the appellant instituted Appeal No. 164(R)/93 before Federal Sendee Tribunal on 31.5.1993 which was heard 'alongwith Appeal No. 163(R)/93 filed by waqar Ahmad and were rejected in limine through common judgment dated lst August, 1993, which has now been assailed.
C.P.1.A. No. 664/95.
11. Petitioner, Attique-ur-Rehman has filed Civil Petition for Leave to Appeal before this Court on 3rd December. 1995. The petitioner alongiwht other 44 persons qualified CSS competative examination during 1993 and were inducted into Office Management Group on 6th November, 1994. It is grievance of the petitioner, that Establishment Division on 29th December. 1994 issued Notification No. 13/2/94-OMG-I whereby sendee of 35 promotee Section Officers, who were working on acting charge basis, were regularised. Aggrieved from same petitioner Attique-ur-Rehman and others submitted departmental representation on 16.1.1995. Since no reply to said representation was received, therefore, he alongwith others challenged the same in Sendee Appeal No. 197 (R)/95 before Federal Service Tribunal on15.5.1995. The appeal was eventually rejected on 14.9.1995. Being dissatisfied from the judgment of Tribunal, petitioner has filed Civil Petition for Leave to Appeal No. 664 of 1995 before this Court.
12. Mr. K.M.A. Samdani, ASC, appearing for appellant in Civil Appeal No. 247 of 1993, emphatically raised following contentions:-
(i) Concept of numerical calculation of 1/3rd quota allocated for departmental promotion as Section Officer (B-17) and subsequent promotion of 50% Officers amongst two categories to B-18 has been misconstrued and incorrectly decided by learned Chairman in his observations dated 14.10.1992.
(ii) Regularisation of 109 Section Officers through notification dated 7th July, 1990, who were already performing functions against clear vacancies allocated for 1/3rd promotion quota, giving its retrospective effect from 31.12.1989 was legal and proper. Similarly, notifications issued on 17.9.1990. 23.10.199, 7.1.1991.And 16.3.1991, causing regularisation of remaining thirty-six Section Officers working on Acting Charge Basis making it effective from 31st December, 1989 was proper and justified. However, conclusions drawn by learned Chairman of Sendee Tribunal nullifying retrospectivity of regularisation suffers from patent illegality.
"(iii) Leamed Chairman. Federal Sendee Tribunal, failed to give any w definite conclusions about vacancies existing in respective quotaof promotees or direct recruitees on the date from which they were regularised. Besides, while passing impugned judgment details furnished by Establishment Division, which were quite exhaustive, were unjustifiably ignored.
(iv) Seniority is not a vested right under the Civil Senants Act. 1973 Therefore, appeal before Federal Sendee Tribunal regarding fixation of seniority was incompetent.
(v) The competent authority was empowered to regularise promotion , of persons performing functions in the higher rank, withretrospectively; provided they were otherwise eligible under the rules. Therefore, no defect exists in exercising the powers in that behalf.
(v) Regularisation of officers already working on Acting Charge Basis within prescribed ration as against direct recruitees was clearly flows from details furnished by Establishment Division's high power committee when question arose about fixing their inter se seniority and adjustment for ensuring smooth official-working.
13. - Hafiz S.A. Rehman, Sr. ASC, appearing on behalf of respondents No. 1 to 10 in Civil Appeal No. 247/93, vehemently opposing the sameargued:-
(i) 269 persons performing functions on acting charge basis were accommodated on the basis of proposal (b) made through decision of High Powered Secretaries Committee on 12.4.1990.
Whereby requirement of quota amongst two categories of Section Officers i.e. Direct recruitees or appointed by promotion, was glaringly ignored.
(ii) Adjustment of 135 Section Officers on the basis of above- mentioned proposal of Secretaries Committee causing regularisation of Section Officers who were Undisputedly performing functions on Acting Charge Basis as mentioned in minutes of meeting dated 12.4.1990. Has adversely affected rights of respondent by oncroaching upon posts actually falling in their share, under the rules.
(iii) Adherence to quota by the competent authority was mandatory which was violated while adjusting Section Officers appointed by promotion on 7.7.1990. Such order specially giving retrospective effect was clearly mala fide and unlawful.
Reference was also made to observations in following reports:-
(a) 1996 S.C.M.R. 1264 (Nasimul Haque Malik v. Chief Secretary to Government of Sindh, Karachi and 4 others)
(b) 1996 S.C.M.R. 129 7(Muhammad Yousaf and 4 others v. Abdul Rashid and others).
(c) 1985 S.C.M.R. 386 '(Federation of Pakistan v. Azam Ali and others)
14. Mr. Fazal Ellahi Siddiqul, ASC, appearing for appellants in Civil Appeals No. 917 and 918 of 1993 and petitioner in Civil Petition No. 664 of 1995 contended that:-
(i) Five notifications issued between 7th July, 1990 and 16th March, 1991, were without jurisdiction and effected the quota rights of Section Officers appointed through direct recruitment during years 1991, 1992 and 1994. Factually no vacancy against promotion quota existed on 31st December, 1989, 1990 or 1991 till aforesaid notifications were issued. Therefore, regularisation of 135 Section Officers working on acting charge basis was unlawful. Consequently, appellants/petitioner continued to enjoy seniority upon respondents so promoted/regularised.
(ii) Federal Senice Tribunal has seriously erred by ignoring the vested right of appellants/petitioners, which would affect their future promotion.
15. We have carefully considered documents brought on record in the light of arguments advanced by learned counsel for the paities.
16. Firstly it may be seen that initial composition of Office Management Group in Grade-17 -was specified under Article 4 of the Charter.However, with regard to future appointments, Article 7(a) contains that 2/3rd vacancies of Section Officers in Grade-17 would be filled from direct recruitment through F.P.S.C, and (b) remaining 1/3rd vacancies by promotion from departmental eligible candidate through promotional examination to be concluded by F.P.S.C.
17. Record amply discloses that 24 officers already referred above, were directly inducted as Section Officers B-17 after qualifying competitive examinations of 1988. At the same time about 269 persons having qualified requisite departmental examination since years 1984, 1985 and awaiting promotion were appointed as Section Officers on Acting Charge Basis against existing vacancies. However, after their such appointment; question with regard to their regularisatiou and fixation of seniority' arose, w'hich was adequately resolved by a high powered Secretaries Committee. Thus, Notification No. 13/2/89-OMG-I, dated 7.7.1990 issued for causing regularisation of Section Officers relating to promotion quota with effect from 31.12.1989 w'as in conformity with relevant rules and conditions prescribed in Charter creating Officer Management Group. During the process when controversy regarding their inter se seniority was being resolved Establishment Division has carried out detailed calculation about existing vacancies in the arena of respective quotas. Factually large number of vacancies were available against promotion quota of Section Officers, but without justifiable reasons their confirmation was delayed. It is quite manifest from the record, that requisite vacancies ware certainly available on 7.7.1990 when notification for their regularisation was issued. Whereas details disclosing required number of vacancies op 31.12.1989, the date from which promotees ware regularised, co-relating its adjustment is not visible on the available material. It was obligatory for appellants to explain in transparent manner, real position of vacancies as regards promotion quota to validate retrospecive benefit granted to them.
Learned Chairman, Federal Service Tribunal, has adequately discussed all aspects on the basis of date provided by the Establishment Division through minutes of meeting. Therefore, in our opinion by deleting operation of notification dated 7.7.1990 with retrospective effect from 31.12.1989 the grievance of Section Officers directly recruiteed on is fully resolved. Undisputedly at subsequent stage there became .Numerous vacancies against promotion quota in B-18. Therefore. 116 promotee Sec ion Officers of B-17 were regularly promoted tohigh grade thus any confusion regarding adjustment and reguiarisation of the Officers performing functions on acting charge basis, if any, was duly met with. It may be observed with respect that principle of law regarding adherence to respective quota and validity of appointments against clear vacancies, enunciated in afore-quoted judgment as discussed above has been followed by Federal Sendee Tribunal in its impugned judgment dated 14.10 1992, which as informed by learned Deputy Attorney Generally has also been implemented.
18. For the above reasons we are satisfied that impugned judgment dated 14.10.1992 passed by learned Chairman, Federal Sendee Tribunal (which formed order of the Court) does not suffer from any legal infirmity and was not open to exception.
19. Similarly, Federal Sendee Tribunal on the parity7 of reasoning and facts discussed above, was justified in rejecting Appeals No. 163 and 164(R)/93 filed by respective appellants Waqar Ahmad and Sikandar Aqeel Ansari. Accordingly Civil Appeals Nos.917/93 and 918/93 on the same principle and reasonings have no substance.
20. Next, while considering grievance in the petition filed by Attique- ur-Rehman, it may be seen that learned Federal Service Tribunal on obtaining actual figures from Establishment Division reflecting numerical strength of Section Officers in different Zones up to 31.7.1995 which manifestly indicates that quota requirements were not violated. It would be appropriate to reproduce here operative portion of order passed by Federal 7 Service Tribunal in Appeal No. 197(R)/95, which reads as under: -"
4. After hearing the learned counsel for the panties and going through the material available on record as well as departmental file produced by the representative of the Establishment Division, the representative was directed to provide statement alike the one furnished by the Establishment Division before the Ombundsman. The statement provided by the Section Officer, OMG showing the position of the group as in July, 1995, is reproduced hereunder:- Duty posts 750 Deputation Reserve <10% of duty posts) 75 Leave & Training Reserve (15% of duty posts) 112 Total cadre strength 937 (- 75 posts (10% of 750 total duty posts i.e. 75 reserved for deputatiori/induction of deputationists in O.M.G.) 75 Balance 862 Posts in BS-18 431 f'osts in BS-17 431 NUMBER OF SECTION OFFICER PRESENTLY WORKING INOMG CADRE (AS ON 31-7-1995) , BS-17 BS- 18Regular OMG Officers: 135 . .34(i) Direct 49 272(ii) Promotee (iii) Inductee 04 53(II) Acting Charge Section Officers: 77 - -(IlltOeputationists Officers: 123 78(IV) Armed Forces Officers on contract: - 24 Total: 388 461670 C. {{data misarranged}} The above statement would show that the total cadre strength of the OMG group is 937. After deducting 75 posts at the rate of 10% reserved for deputationist and inductees etc., there remained 862 posts in the cadre. In accordance with para 5 of the Memo, dated 27.1.1975 constituting the groups. 50% of the total strength of these posts will be in Grade-17 and remaining 50% in Grade-18 and quota for direct recruitment & promotion is to be maintained in BPS-17 only.
These 431 posts are to be further divided between the direct and promotees in the ratio of 2/3 and 1/3 as per para 7 of the said OM. The bifurcation' of the 431 posts between the direct and the promotees as per formula would thus be 287:
144. As such 144 posts are available with the Establishment, Division to fill in by officers/officials who have since qualified the departmental promotional examination. As against these 144C.C.671posts, presently there are only 49 officers who are working on regular basis against the promotion quota. These 49, we were informed, include-35 acting charge Section Officers who were brought on regular footing vide impugned notification dated 29th December, 1994 and have been impleaded in the present appeal . As respondents. The number of the promotee officers as such working on regular basis in B-17 is much less than the number of seats available in their respective quota. The contention of the appellant that the respondents have been regularised in excess of their promotion quota, is therefore, unfounded and against the ' facts and figures provided by the Establishment Division.
"Additionally 116 persons from amongst promotees, who were duly regularised through impugned notification. Undisputedly got promoted to B- 18 on 11.5.1991, against their specified quota. Thus, officers directly recruited subsequent to said date have absolutely no legal right or character to challenge the-validity of previous quota adjustment which has been subject- matter of determination before us in Civil Appeal No. 247 of 1993. Thus. Petition for Leave to Appeal No. 664 of 1995 is incompetent. Accordingly leave prayed for is refused.
Resultantly, all the three appeals and the petition stand dismissed. However, parties are left to bear their on. Costs.