' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 27-5- 1991 and order dated 28-7-1991 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeal No,210(Q) of 1989 against the refusal of respondent No,1 to treat the appellant's promotion from B-17 to B-18 with effect from 4-10-1979 instead of 10-8-1980 and to fix his seniority on that basis, allowing the same partly:
2. The brief facts are that the appellant was commissioned in the Army in 1968. While he was working as a Captain, he was inducted in the Tribal Areas Group, hereinafter referred to as TA.G., in B-17 on 4-10-1974. He assumed the charge of the same on 10-10-1974. It appears that there were some adverse remarks in the appellant's A.C.Rs, for the following periods:--
(i) 1-6-1978 to 31-12-1978;
(ii) 1-1-1979 to 24-5-1979; and
(iii) 26-5-1979 to 24-8-1979 ' The appellant completed his five years' service in B-17 on or about 10-10-1979 and, therefore, became eligible for consideration for promotion to B-18. It seems that the D.P.C. In its meetings held earlier than 6-10-1981 did not recommend the appellant's promotion on account of the factum that it had received nothing in writing from the competent authority that the above adverse remarks were expunged. However, in its above meeting, dated 6-10-1981, the D.P.C. After having received intimation that the aforesaid adverse remarks from the appellant's A.C.Rs, were expunged and that for the period from 18-10-1979 to 18-11-1980, the appellant received in his A.C.Rs, remarks, namely, "very good", ordered the promotion of the appellant as under:-- "The Committee also recommended that the officer may be promoted with effect from the date he is approved for promotion by the competent authority or the date he assumes charge of Grade-18 whichever is later.
(ii) It was, however, observed by the Committee that the officer has been generally rated as an average officer and his promotion was delayed because of the adverse remarks recorded in his reports for the years 1978 and 1979, which subsequently have been expunged. He should not, therefore, be allowed to have the benefit of the seniority in Grade-18 along with his batch and that he should count seniority in Grade-18 from the date of his promotion to that grade."
3. It may be pertinent to mention that prior to the appellant's promotion from B-17 to B-18, T.A.G.
Was merged with District Management Group, hereinafter referred to as D.M.G. In this behalf, in exercise of the powers conferred under section 25 of the Civil Servants Act, 1973, hereinafter referred to as the Act, the competent Authority framed Tribal Areas Group and the District Management Group Merger (Seniority) Rules, 1981, hereinafter referred to as the Rules, through a notification dated 3-12-1981 gazetted on 6-12-1981. Rules 2 and 3 of the Rules provide as follows:-- "2. Seniority of Grade-17 officers of the Tribal Areas Group vis-a-vis those of the District Management Group shall be fixed on the basis on which it would have been fixed had the former been initially appointed to the District Management Group instead of the Tribal Areas Group.
3. Seniority of Tribal Areas Group Officers who are in Grade-18 or above on the date of commencement of these rules, vis-a-vis those of the District Management Group shall be fixed on the basis of the date of regular appointment to a post in the respective grade."
4. It seems that the competent Authority upon receipt of the above recommendation of the D.P.C.
Did not pass any order but ordered to await till the receipt of A.C.R. For another year. On receipt of the latter, the competent Authority approved the appellant's promotion from B-17 to B-18 with effect from 19-4-1982. The appellant contested the above date of promotion inasmuch as after filing departmental appeal without any success, he approached the Tribunal through Appeal No,339(Q) of 1985. In the above appeal he inter alia arrayed respondents Nos.3 to 24, who originally belonged to D.M.G. Prior to the merger. Before the Tribunal the case of the appellant was that in view of paragraph B in clause (b) contained in ESTACODE, 1983 Edition, which provided that in a single reference a case before the D.P.C. Was held up in respect of an officer for reasons beyond the control of such person, the recommendation of the D.P.C. When made subsequently shall be deemed to have been made on the date when the recommendation in respect of the original batch was made. The second contention of the appellant was that he was entitled to ante-dating of his promotion to 4-10-1979 when he completed five years' service in B-17. In fact he was claiming seniority inter alia over the above respondents Nos.3 to 24, who originally belonged to D.M.G. The Tribunal, on the basis of the above provision in ESTACODE, held that the appellant was entitled to promotion in B-18 with effect from 10-8-1980 when for the first time the batch of the appellant was considered for promotion and his name was deferred. The appellant's above second contention was rejected for the reasons contained therein. However, it was also observed by the Tribunal that nothing in the order shall prevent the Government to consider the case of the appellant and his batch-mates for giving seniority from the dates on which they completed five years in B-17 on the analogy of preceding and subsequent batches.
5. Against the above judgment, the appellant approached this Court through Civil Petition for Leave to Appeal No,59-0 of 1986, which was declined by an order dated 7-4-1987 in the case of Captain (Retd.) Muhammad Yunus Jaffar v. Government of Pakistan and 25 others 1990 SCM R 657. This Court while declining the above petition for leave affirmed the reasons recorded by the Tribunal for rejecting the appellant's claim for promotion with effect from 4-10-1979 i,e, upon completion of five years. The relevant portion of the above leave refusing order reads as follows:-- "So far as petitioner's claim to promotion from ante-date with effect from 4-10-1979 when he completed five years' service in the post in Grade B-17 is concerned, the Service Tribunal rejected the same for the reasons which may be reproduced hereunder:- `The appellant had also taken the stand that promotion should be ante-dated to 4-10-1979 when he completed five years' service in B-17. This stand was taken because according to him the batches which were approved prior to 10-8-1980 and also subsequent to 10-8-1980 had been given seniority from the date they completed five years' service in B-17. According to him, this was done in the case of persons belonging to the offices of the District Management Group; the two groups having merged in the meantime with effect from 3-12-1981. We do not find any force in this argument. Since all the batchmates of the appellant who were recommended in the meeting of the D.P.C. On 10-8-1980 were appointed with immediate effect and not retrospectively, the appellant cannot be given seniority over them even if they are otherwise senior to him. If we ante- date the seniority of the appellant to date when he completed five years' service, then he would become senior to persons who were originally senior to him, but were not given promotion or seniority retrospectively on completing 5 years' service. Therefore, this claim of the appellant is rejected."
' We have heard the learned counsel for the petitioner and gone through the record. We find that no exception can be taken with the view that has prevailed with the Service Tribunal. There is, therefore, no merit in the petition. It is accordingly dismissed."
6. The appellant again agitated the above question before the department without any success.
He, therefore, filed aforesaid appeal in the Tribunal, which was allowed as under:- "6. The appeal is, accordingly, allowed to the extent that the appellant shall reckon seniority in BPS- 18 along with his batch-mates in BPS-17 promoted on the recommendation of the D.P.C. In its minutes of the meeting held on 10-8-1980 and maintain his original seniority vis-a-vis his those batch-mates. No order is made for costs."
After that the appellant filed Miscellaneous Petitions Nos.96/91 and 100/91 in the above disposed of appeal for rectification and clarification, but the same were declined by the order dated 28-7-1991.
Thereafter, he filed a petition for leave to appeal, which was granted to examine the question of appellant's seniority vis-a-vis respondents with reference to Rules 2 and 3 of the Rules.
7. In support of the above appeal the appellant has appeared in person and has argued the same very ably and tenaciously. He has inter alia contended as under:--
(i) That under section 8 of the Act the official respondents were obliged to prepare a seniority list, which they failed to do, with the result that the appellant's case for promotion from B-17 to B-18 could not be considered in time upon the expiry of five years' period from the date of assumption of the charge by him in B-17, whereas the cases of the respondents working in D.M.G. Were considered and they were granted promotion;
(ii) That since the post in B-18 was a non-selection post, the appellant was entitled to promotion upon the completion of five years prescribed period as a qualifying period under the relevant rule; and
(iii) That since the respondents who were originally working in the D.M.G. Were promoted with effect from the dates when they completed five years period and which benefit was allowed to other groups as well, the appellant could not have been discriminated.
8. As regards the above first contention, it may be observed that there is no doubt that under subsection (1) of section 8 of the Act it is the statutory obligation of the department to prepare a seniority list for proper administration of a service, cadre or post. It also provides that nothing contained therein shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
' It may further be observed that subsection (2) thereof lays down that subject to the provision of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or cadre, who are serving in the same department or office or not as may be prescribed.
' Whereas subsection (3) of the same provides that seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.
' It may also be pointed out that subsection (4) lays down that seniority in a post, service or cadre to which a civil servant is promoted, shall take effect from the date of his regular appointment to that post. However, proviso to the above subsection clarifies that civil servants who are selected for promotion to a higher post in one batch shall on promotion to the higher post retain their inter se seniority in the lower post. The appellant was not inducted in TA.G. Through the normal procedure of the Public Service Commission but he was inducted through lateral entry from the Army. As late as in June or July, 1981, the question of determination of seniority inter se between the person indicated from Army in TA.G. Was under consideration before the President which is evident from the Deputy Secretary, Cabinet Secretariat (Establishment Division)'s letter, dated 14-7-1981 addressed to the appellant through the Chief Secretary, Government of Balochistan. It may be instructive to reproduce paras.2, 3 and 4 thereof, which read as under:- "2. The President has been pleased to decide that the fixation of pay and seniority of the officers in the Tribal Areas Group would be determined on the following conditions:--
(i) These officers will be deemed to have been inducted in the Tribal Areas Group w,e,f, the date they started officiating in Tribal Areas Group posts on transfer from the Army.
(ii) They will count their seniority in the relevant grade w,e,f, the date of induction.
(iii) Their pay and allowances will be fixed in civil scales of pay in accordance with the rules on the subject. Their present pay will be fixed after allowing them due increments.
(iv) They will cease to draw Army pay and allowances with effect from 1st August, 1981.
(v) Pay and allowances drawn in excess of the civil rates of pay between the date of their induction and 1st August, 1981 will be written off.
3. It has been further decided that the affected officers will be given an option to accept or reject induction in the civil o 1 the conditions listed above on these appointments. Those who accept the offer will be permanently inducted. Those who reject the offer may either continue to serve on secondment and revert back to the Army when their services are no longer required. The option once exercised will be final. Any officer who fails to exercise an option will be deemed to have accepted induction in the civil on the terms and conditions stated above.
4. You are requested to communicate your option to this Division by 31st August, 1981 positively."
' According to the above order of the President the persons inducted from the Army in TA.G. Were deemed to be in the latter service with effect from the dates they started officiating in T.A.G. On transfer from the Army. Non-preparation of the seniority list immediately after Army personnel were inducted in TA.G. In 1974 stands explained by the above letter. The inter se seniority between the personnel of TA.G. Was to be maintained on the basis of the date of assumption of the first charge.-
9. There is no doubt that posts carrying BPS-18 or below are non-selection posts as provided inter alia in Part II, para. 1 of the ESTACODE, 1989 Edition, at page 247, but no rule provides that the promotion from. B-17 to B-18 shall be automatic upon the expiry of the prescribed period of eligibility, namely, five years. On the contrary, paras. 2 and 3 of Part II contained in above ESTACODE lay down the following conditions:--- "2. For promotion to a post in basic pay scale 18, however, a civil servant must fulfil the following additional requirement:
(a) Qualifying service: possess five years' service as an officer subject to the provisions contained in Establishment Division's O.M. No,1/9/80- II(A), dated 2-6-1983.
(b) Eligibility threshold: attain a minimum score of 50 marks for his C.R.S. In accordance with the formula given in the addendum.
3. If only 2 reports or less have been recorded on a civil servant's work against a post in basic pay scale 17, the reports earned by him in the next lower posts should also be included in the qualification."
10. Admittedly, the appellant was not qualified to be promoted from B-17 to B-18 in view of the adverse entries in his A.C.Rs, for the periods from 1-6-1978 to 31-12-1978, 1-1-1979 to 24-5-1979 and 26-5-1979 to 24-8-1979 referred to by the Tribunal in its first judgment dated 14-9-1986 in Appeal No,339(Q) of 1985. The D.P.C. Recommended the appellant for promotion when the above adverse remarks were expunged by the competent authority. The Tribunal granted relief to the appellant to the extent that he was promoted retrospectively i,e, from the date on which his immediate junior was promoted on the basis of meeting held by the D.P.C. On 10-8-1980. We are, therefore, of the view that no prejudice has been caused to the appellant on account of non-preparation of the seniority list of the officers working in B-17 in T.A.G. Immediately upon their joining of the service.
11. Adverting to the above second submission of the appellant, it may be stated that the Tribunal in its aforesaid first judgment dated 14-9-1986 clearly held that the appellant was not entitled to ante-dating of his seniority to 4-10-1979 when he completed five years' service in B-17. This finding was affirmed by this Court while declining the appellant's petition for leave, the relevant portion of which has been quoted hereinabove in paragraph 5. The above finding had acquired finality. It was not open to the appellant to have repaginated the above question before the Tribunal or before this Court on the basis of the aforesaid observations of the Tribunal contained in its order dated 14- 9-1986 to the effect that nothing in the order shall prevent the Government to consider the case of the appellant and his batch-mates for giving seniority from the date on which they completed five years' service in B-17 on the analogy of preceding and subsequent batches. Even otherwise on merits, the appellant has no case to claim seniority in B-18 over the respondents who originally belonged to D.M.G. And were promoted earlier in view of above-quoted Rule 3 of the Rules which provides that seniority of TAG. Officers who are in Grade-18 or above on the date of commencement of the Rules shall be fixed on the basis of the dates of regular appointment to a post in the respective grade. The above rule is in consonance with subsection (4) of section 8 of the Act referred to hereinabove which lays down that seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post subject to the proviso that the civil servants who were selected for promotion to a higher post in one batch shall on their promotion to a higher post retain their inter se seniority as in the lower post. It may be observed that prior to the merger of TAG. And D.M.G., there were two different cadres. In this regard it will not be out of context to refer to an unreported judgment of this Court dated 15-7-1991 rendered in Civil Appeal No,760 of 1988 (Federation of Pakistan v. Muhammad Yousaf Niazi and others) against the order dated 10-6-1987 of the Tribunal, whereby the appeal of respondent No,1 (Muhammad Yousaf Niazi) was allowed and he was granted the relief which the appellant wishes to seek i,e, ante-dating his promotion with effect from the date on which he completed five years and seniority over incumbents who originally belonged to D.M.G. Prior to the merger. This Court, while allowing the above appeal, held as under:-- "4. It is difficult to support the order of the learned Tribunal. Apart from the inaccuracy that it contains with regard to the absence of respondent No,1 from the country at the time when promotions were made, it proceeds on an entirely erroneous basis. Respondent No,1 belonged to a cadre entirely different from that of respondents Nos. 2 to 23. He could not, therefore, be considered for promotion when respondents Nos. 2 to 23 were promoted. Thus, there was no question of his not being considered at the time when respondents Nos.2 to 23 were promoted. No doubt, if a senior officer is not considered for promotion when an officer junior to him is promoted, he will regain seniority over the junior officer when he is also promoted. But this rule presupposes that the senior officer was eligible for promotion when the junior officer was promoted. This, as pointed above, is not the case here. The learned Tribunal, therefore, invoked a wrong principle in accepting the claim of respondent No,1.
5. Rule.3, ibid, is very clear. It makes the date of regular promotion as the basis for determining inter se seniority of the officers of the Tribal Areas Group and District Management Group after merger.
As respondents Nos.2 to 23 were promoted to Grade-18 much earlier than respondent No,1, they were rightly shown senior to him. We would, therefore, allow this appeal, set aside the judgment of the learned Tribunal and dismiss the appeal which respondent No,1 had preferred before the Tribunal. There will be no order as to costs."
' However, the appellant has been able to point out that respondent No,25 (Capt. Farid-ud-Din Ahmedzai), who was inducted from Army in TA.G and who was junior to him on account of subsequent assumption of duty in B-17, namely, on 4-11-1974, was shown senior to him in the integrated seniority list instead of placing him junior to the appellant who assumed the charge of B-17 on 10-10-1974. To this extent we are inclined to allow the appellant's appeal.
12. Referring to the last submission of the appellant, it may be mentioned that the Government functionaries are supposed to act fairly and justly and not to discriminate inter se between the persons belonging to the same class placed in similar position and situation. Reference may be made to the case of IA. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCM R 1041. In the case in hand we do not have sufficient material on record to indicate as to the reason as to why the respondents who originally belonged to D.M. G. And who were promoted from B-17 to B-18 in March or April, 1980, were given promotion with effect from the date on which they completed five years, nor there is anything to indicate which other groups were given the above benefit. It cannot be said that the appellant and the respondents who originally belonged to D.M.G. Prior to the merger belonged to the same cadre i,e, to the same class. In fact they belonged to two different cadres as held by this Court in the above- quoted portion of the judgment rendered in an identical case. In this view of the matter, there has not been any discrimination within the same cadre as to warrant relief against the respondents who originally belonged to D.M.G.. The discrimination is to the extent of respondent No,25, who originally belonged to TA.G. And in respect of whom we are inclined to grant relief to the appellant.
13. The upshot of the above discussion is that the appeal is allowed to the extent that the official respondents are directed to place the appellant in the seniority list over respondent No,25, Capt.
Farid-ud-Din Ahmedzai. However, there will be no order as to costs.