' NOOR MUHAMMAD MAGSI (MEMBER).---Appellant Mr. Muhammad Aslam Chaudhry has filed this appeal whereby he has challenged the Memorandum, dated 4th Septembe.r, 1994 relegating him in seniority position in B-17, vis-a-vis respondent No, 4.
2. The facts stated at the Bar are that the appellant joined service as National Savings Officer (B-11) in 1975. In due course of time, he earned promotions in B-14 and B-16 and finally on selection by F.P.S.C., he was appointed as Assistant Director (B-17) with effect from 20-1-1983. Respondent No, 4 Mr. Eftikhar Ahmed Butt was promoted as Assistant Director (B-17) and he took charge on 30-12- 1987. A seniority list of the Assistant Directors (B-17) was issued on 4-10-1988 wherein the name of the appellant appeared at S.No, 30 and that of respondent No, 4 at S.No, 103, to which objections were invited and respondent No, 4 accordingly made representation but the same was rejected vide letter dated 26-3-1989. Another seniority list of Assistant Directors (B-17) was issued on 10-11- 1990 and the appellant was at S.No, 22 while respondent No, 4 at S.No, 86, and respondent No, 4 never challenged this seniority list. Prior to this, the case of respondent No, 4 was considered for promotion as Assistant Director (B-17) by the D.P.C. In the meeting held in 1983 but since disciplinary proceedings under the E & D Rules were pending against him, his case was deferred and one of his junior, namely Mrs. Sajida was promoted. As a result of the disciplinary proceedings, the respondent No,4 was imposed the penalty of censure by order dated 11-1-1984. He challenged that order by, way of departmental appeal but his appeal was rejected by the competent Authority vide letter dated 26-9-1984. In the subsequent meeting held on 5-3-1984, the D.P.C. Considered the case of respondent No, 4 and deferred on the ground that appeal against the penalty of censure was pending for fmal decision: Finally, the D.P.C. Held on 14-10-1987 recommended respondent No, 4 for promotion as Assistant Director (B-17) and the competent Authority approved his promotion as such, with immediate effect, alongwith four others, and this decision was communicated by the Establishment Division vide U.O. Dated 2-12-1987. Accordingly, his seniority was reflected in the seniority list of Assistant Directors (B-17) issued on 4-10-1988 and his name appeared at S.No, 103.
Respondent No, 4 challenged his seniority by making a representation on 6-12-1988 wherein he requested for seniority above the name of Mrs. Sajida, who was junior to him in B-16 and had been promoted in B-17 while his case was deferred. This representation was rejected vide letter dated 26-3-1989 and was communicated to him vide endorsement dated 29-3-1989. In the seniority list issued on 10-11-1990, the name of respondent No, 4 was at S.No, 86 which he did not challenge. In the subsequent seniority list issued on 9-6-1992, the appellant's name was at S.No, 13 and respondent No, 4 at S. No, 76, and objections were to be filed by 20-7-1992, to which the respondent No, 4 made representation on 10-8-1992 reiterating his claim for seniority over and above Mrs. Sajida. The competent Authority in the Establishment Division allowed respondent No, 4 the benefit of presumptive seniority in B-17 with effect from the date of promotion of his junior i,e, 8-6-1983 and refixation of pay on presumptive basis under F.R. 26(c) without payment of arrears up to the date of his actual promotion on regular basis viz. 30-12-1987. Accordingly, by Memorandum dated 4-9- 1994, respondent No, 4 was allowed to reckon his seniority over Mrs. Sajida and his name was to appear at S.No, 12 above the name of the appellant in the seniority list issued in 1992. This gave cause of action to the appellant and he made an application dated 13-9-1994 for supply of copy of the representation made by respondent No, 4 on the basis of which his seniority was relegated to lower position. He then made departmental appeal on 26-10-1994 to the Secretary, Finance Division and the Establishment Division and failing to get reply, he filed this appeal before the Tribunal on 26-2-1995.
3. The learned counsel appearing for the appellant has assailed the impugned order dated 4-9- 1994 on various grounds: that respondent No, 4 was regularly promoted with effect from 9-12-1987 in B-17, while the appellant was appointed as Assistant Director in B-17 with effect from 20-1-1983 and their seniority had to be determined under section 8 of the Civil Servants Act, 1973, from the date of their regular promotion to a post or cadre; respondent No, 4 was given presumptive seniority with effect from 16-6-1983 treating his case as deferred, but since his promotion was not ante-dated by the competent Authority, seniority allowed to him was in contravention of the rules and the law laid down by the Supreme Court that his representation/appeal against the seniority list issued in 1988 having been rejected by the competent Authority and the seniority list issued in 1990 have not been challenged, meaning thereby that he accepted his due placement in both the seniority lists, and even against the seniority list issued in 1992 his appeal was time-barred, the competent Authority was not within competency in entertaining such time-barred representations/appeals and allowing him seniority over the appellant by jumping from S.No, 76 to S.No,
12. The learned counsel vehemently argued that seniority enjoyed by the appellant right from 1983, being a direct appointee of F.P.S.C., in several seniority lists issued in 1988, 1990 and 1992, his position could not be reversed and that too without notice, under the principle of locus poenitentiae. In support of his submissions, he relied on the judgments of the Hon'ble Supreme Court reported in 1993 SCMR 609; 1994 PLC (C.S.) 629 and 1994 SCMR 1323; and the judgment of this Tribunal delivered in Appeal No, 96(R) of 1995 filed by Syed Mohibullah Shah, decided on 18-6-1995.
3-A. Objections have been filed by Director (Legal), C.D.M.S. On behalf of respondents 1 to 3. It has been stated that the case of respondent No, 4 was deferred in 1983 and 1984 due to pendency of disciplinary proceedings against him and his juniors were promoted in B-17. He was, however, promoted on regular basis as Assistant Director (B-17) in the year 1987 and since it was a case of deferment, he was allowed presumptive seniority from the date his junior was promoted.
Respondent No, 4 has also filed objections and has taken the same points taken by the official respondents.
4. Mr. Niaz Ahmed Khan, the learned Standing Counsel representing respondents Nos. 1 to 3, with the assistance of the representative of the Establishment Division, argued that there is no concept of presumptive seniority in the Civil Servants Act, 1973 and section 8 of the Act regulates seniority to be determined from the date of regular appointment/promotion in a post or cadre and service. He argued that since respondent No, 4 has not been given ante-dated promotion in B-17, as urged in para. 5 of the comments, he was to reckon seniority from the date of regular promotion made in 1987 vis-a-vis his counterparts. He contended that respondent No, 4 was awarded penalty of censure against which he filed departmental appeal which was rejected and he did not come to the Tribunal, therefore, that chapter stood closed and could not be reopened. His seniority position was given, in the seniority lists issued in 1987 till 1992 and his representation having been rejected, respondent No, 4 was not entiled to the benefit of seniority, in the circumstances of the case mentioned above. To reinforce his submissions, the learned Standing Counsel relied on the judgments of the Supreme Court reported in PLD 1994 SC 230 and 1994 PLC (C.S.) 629.
5. Respondent No, 4 appeared in person and reiterated the stand taken in the comments filed by him.
6. We have considered the submissions of the parties and perused the record. The facts mentioned above are, not denied. Admittedly, the appellant was appointed as Assistant Director (B-17) on selection by F.P.S.C., with effect from 20-14983. On the other hand respondent No, 4 was promoted on regular basis as Assistant Director' (B-17) along with others, with effect from 30-12-1987.
According to section 8 of the Civil Servants Act, 1973, seniority in relation to others is to be determined from the date of regular promotion or appointment to a post, service or cadre and in view of this provision, seniority of the appellant and respondent No, 4 had been reflected in the seniority lists issued in 1988, 1990 and 1992, and rightly so, and the representation made by respondent No, 4 in that regard was also rejected by the competent Authority vide letter dated 26- 3-1988, and he did not bring his grievance before the Tribunal as far as his claim for ante-dated seniority on the basis of his deferment was concerned. The subsequent seniority list issued in 1990 wherein his position was at S.No, 85, and the appellant was at S. No, 22, he did not make any representation or appeal against this seniority list and remained contented, with his seniority position. Therefore, as far as his claim of seniority against the appellant is concerned, it had become finally settled firstly in 1988 when his request for ante-dated seniority/promotion had been rejected and secondly in 1990 when he did not challenge the seniority list neither departmentally nor before the Tribunal, and rightly so, because his seniority in B-17 had been determined strictly in accordance with the provisions of section 8 of the Civil Servants Act, 1973, from the date of regular promotion. In 1992, another seniority list was issued wherein the seniority position of respondent No, 4 was below the appellant, and he made a belated representation against this seniority list, and in spite of the fact that the claim of respondent No, 4 for seniority on the basis of his deferment had already been rejected, he was given the benefit of presumptive seniority and his name was placed at S.No, 12 above the appellant, and we fail to understand as to how the competent Authority could entertain a belated claim which had already been rejected and this act was, without jurisdiction, and contrary to the law laid down by the Honourable Supreme Court in the case reported in 1994 PLC (C.S.) 629 as the appellant had not challenged his seniority position which was reflected in the earlier seniority lists and the same position was carried over in the subsequent seniority lists, therefore, the respondent No, 4 had no locus standi to challenge the seniority list issued subsequently, and similarly he was not entitled to the benefit unless and until his promotion would be ante-dated in view of the judgment of the Supreme Court reported in 1985 SCMR 2099 (Federation of Pakistan v. Muhammad Naqi Khan). Moreover, it had become a time-barred claim.
7. We have also gone through the file of the Establishment Division and it appears that in spite of the fact that the claim of respondent No, 4 had become time-barred, yet, the case was processed and the Additional Secretary (R), Establishment Division allowed him the benefit of seniority, who was not competent to do so, as under section 8 of the Civil Servants Act, 1973, in matters of seniority, appointments and promotions etc. Pertaining to BPS-17 to 19 Officers, the appointing authority is the Secretary, Establishment Division and he could only pass such orders, therefore, the orders were passed by the Additional Secretary (R) resulting in dislodging the seniority of as many as 64 persons by impugned order, dated 4th September, 1994 are .Without lawful authority and having no legal sanctity cannot sustain.
8. For the foregoing reasons, we allow the appeal, set aside the impugned order, dated 4th September, 1994 and the result would be that the name of respondent No, 4 shall be deleted from S.No, 12 and shall appear at S.No, 76, the position he enjoyed in the seniority list issued on 1-6-1992.