' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant, Mr. Muhammad Muazzam Mirza, is working as Assistant in the Federal Public Service Commission (FPSC), Islamabad. He has filed this appeal against the final seniority list of Assistants (B-11) circulated vide letter dated 2-8-1994.
2. The relevant facts in the background of this appeal are that the appellant joined FPSC as Assistant on 17-7-1984 by way of mutual transfer from the Department of Supplies, Karachi in place of Mr. Muhammad Riaz, Assistant, FPSC. The FPSC by letter dated 5-2-1984 informed the Assistant Director, Department of Supplies, Karachi, where the appellant was serving, that in case the request of the appellant for mutual transfer is accepted, his seniority as Assistant will count from the date of joining the Commission and no TA/DA shall be admissible to him. It was also stated that in case the appellant accepts the conditions, an undertaking to this effect may be obtained from him and sent to the Commission. Subsequently, by Memorandum dated 18-11-1984, the appellant was informed that the appellant had been placed senior to the persons joined/promoted on or after 17- 7-1984 against the direct and promotion quota. This letter was issued with the approval of the Secretary, F.P.S.C. In the year 1988, a seniority list of Assistants was issued wherein the name of appellant was shown at S. No, 48 and respondents Mr. Moinuddin Ahmed and Miss Farzana Nasim was shown junior at S:Nos. 49 and 50 respectively, while respondent Sher Zaman was shown at S. No, 42 being senior to appellant. The appellant was satisfied with the seniority list as it was given to him in accordance with the terms and conditions of his appointment from the date of joining the Commission. Respondent No, 4, Mr. Moinuddin Ahmed, feeling aggrieved with the seniority of respondent Sher Zaman, made an appeal for rectification of his seniority, as according to him, he had better merit position whereas Sher Zaman was appointed as a reservist and although had joined earlier than him, but they both being direct recruits of the same year, the date of joining was immaterial and their seniority position was to be determined according to merit assigned by F.P.S.C. The matter was referred to the Establishment Division who after examination advised vide O.M. Dated 27-6-1991 in place the name of Mr. Moinuddin Ahmed above the name of Sher Zaman in the seniority list issued on 13-9-1988, and Mr. Sher Zaman was to rank senior to the promotee assistants mentioned at S.Nos. 43 to 48 on the basis of his date of joining, and that he was to be deconfirmed with effect from 9-10-1988 after serving on him show-cause notice. Similarly, respondent No, 5, Miss Farzana Nasim was also given seniority above Sher Zaman, on the basis of her merit position. Mr. Sher Zaman being aggrieved with this decision, made an application dated 25-7-1991 which was rejected by F.P.S.C. In the light of the Establishment Division decision, referred to above. The appellant was also aggrieved by this order and he made representation to F.P.S.C.
Thereafter, a tentative, seniority list was issued on 30-5-1992 wherein the appellant was shown below respondents 4 and 5, Mr. Moinuddin Ahmed and Miss Farzana Nasim. Ultimately, he brought his grievance before the Tribunal by filing Service Appeal No, 404(R) of 1992 which was disposed of by judgment dated 19-2-1994 with the observation that appeal against provisional seniority list does not lie and that final seniority list be issued within a period of three months. A final seniority list, however, could not be issued within the specified period therefore, the appellant made a miscellaneous Application No, .50/94 and the departmental representative requested for one month's time for issuing the final seniority list. Accordingly, two months' time was allowed to F.P.S.C.
And the application was accordingly disposed of. Final seniority list of Assistants was issued on 2- 8-1994 wherein the name of the appellant was shown at S.No, 34 and those of respondents 4 to 10 appeared at S.Nos. 27 to' 33, being senior to appellant. The appellant challenged the seniority list by making appeal to the Chairman, F.P.S.C. But the same was rejected vide Memo. Dated 11-10-1994.
He then filed this appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973. It was stated at the bar by the appellant that he does not press this appeal against respondents 6 to 10, and has claimed seniority only against Mr. Moinuddin Ahmed and Miss Farzana Nasim.
3. We have heard the appellant at length. He has argued that he is entitled to seniority in terms and conditions of his appointment in the F.P.S.C. From the date he joined viz. 17-7-1984. It is argued that respondents Mr. Moinuddin Ahmed and Miss Farzana Nasim joined On 5-8-1984 and 1-8-1984, therefore, they cannot be considered senior as their date of joining is much after the appellant, i,e, 17-7-1984: It is submitted that in similar circumstances, the F.P.S.C. Has allowed seniority to certain employees, and denial of such benefit to him is ultra vires and terms and conditions fixed at the time of his transfer, a case of discrimination. The appellant has also argued that in the appeals filed by Mr. Moinuddin .Ahmed and Miss Farzana Nasim, he was not a party but his seniority enjoyed by him till 1988 was reversed without affording him opportunity of being heard, although vested right had accrued to him and this change of his position is in contravention of the terms and conditions of his service.
4. The comments have been filed by F.P.S.C. As well as by private respondents. We have heard Mr. Muhammad Arjumand, Assistant Director, appearing on behalf of F.P.S.C. It is argued that on the representations of respondents 4 and, 5, the matter was referred to the Establishment Division and on their advice final seniority list was issued in 1994. It is submitted that in fact the appellant has been given seniority from the date of joining but there was a bit confusion that respondents 4, 5 and 6 were selected in one batch as direct recruits, but respondents 4 and 5 could not be issued appointment letters in time for the administrative reasons and they joined on 5-8-1984 and 1-8- 1984 respectively, whereas respondent No,
6. Mr. Sher Zaman joined on 20-3-1984, but according to the merit position assigned by DSC, they were above respondent No, 6 and in accordance with the decision of the Establishment Division, their seniority as contained in the seniority list was maintained, and that the case of the appellant is not at par with the direct recruits.
5. Mr. S.A.M. Wahidi, the learned counsel appearing for respondents 4 and 5, submitted that respondents 4 and 5 were selected in pursuance to the advertisement by the Departmental Selection Committee on their merit position vis-a-vis respondent No, 6, but due to omission of F.P.S.C., the appointment orders were issued late and they joined after respondent No, 6, Mr. Sher Zaman, who was issued letter of appointment immediately, and on the advice of the Establishment Division, under the rules, seniority position was restored.
6. The case of the appellant is simple as he claims seniority from the date of joining the Commission, i,e, 17-7-1984 and there is no dispute from the respondents' side to that extent and it has been admitted in the comments that he can get seniority from the date of joining the Commission on transfer. The Commission issued seniority list in the year 1988 wherein the appellant was given seniority over and above respondent's 4 and 5, but respondent Mr. Sher Zaman was shown senior to the appellant as his date of joining was 20-3-1984, and the appellant has no grievance about Mr. Sher Zaman, respondent No,
6. However, the cases were examined on the representations of respondents 4 and 5, by the Establishment Division on the ground that they had better merit position assigned by DSC than Mr. Sher Zaman, having been selected in one batch as direct recruits, therefore, Mr. Sher Zaman could not rank senior to them, and they were given seniority over Mr. Sher Zaman. Now it is to be seen whether the date of appointment of respondents Mr. Moinuddin Ahmed and Miss Farzana Nasim could be considered as ante-dated before actually joining the post after the appellant. It is an admitted position that respondents 4 and 5 joined after the appellant, but they have been given seniority according to merit, in spite of the fact that respondent No, 4 joined on 5-8-1984 and respondent No, 5 joined on 1-8-1984, but respondent No, 4 has been given seniority over respondent No, 5 on the basis of merit position. The Establishment Division's O.M. No,1/15(2)/87-R.6, dated 27th June, 1991 whereunder respondent No, 4 was given seniority over respondent No, 6 Mr. Sher Zaman is reproduced hereinbelow:-- ."The undersigned is directed to refer to Federal Public Service Commission's letter No, F. 5/2/91-Estt, dated 27th May, 1991 on the abovementioned subject and to advise the Commission to reflect the name of Mr. Moinuddin Ahmed, Assistant in the seniority list of 13-9-1988 above the name of Mr. Sher Zaman. However, Mr. Sher Zaman will claim seniority over the six promotee Assistants mentioned at Serial Nos. 43 - 48 of the said seniority list as he had joined the post prior to their promotion. Mr. Sher Zaman may be deconfirmed with effect from 9-10-1988 after giving him show- cause notice. "
It is evident that there is nothing mentioned above the seniority of the appellant who was enjoying seniority over and above respondents 4 and 5 since 1988 and they did not challenge his seniority at that time and could the seniority of appellant be disturbed on. The basis of dispute between Mr. Sher Zaman, respondent No, 6 and Mr. Moinuddin Ahmed, respondent No, 4? Another important letter is dated 9th May, 1992 issued by the Establishment Division, which is being relied upon by the respondents, and the same is also reproduced as under:-- "The undersigned is directed to refer to Federal Public Service Commission's Letter No, 5/2/91-Estt., dated 23-4-1992 on the subject mentioned above and to say that Establishment Division is not a proper agency to yet seniority lists of employees of various Ministries/ Divisions/Department. The Commission may itself finalise the seniority list of Assistants in the light of our earlier advice dated 27-6-1991. Besides, the claim of Miss Farzana Nasim is genuine and she may be assigned seniority as per her position determined by Departmental Selection Committee. No deliberate delay was done while offering the post of Assistant to Mr. Aqeel M. Khan. Therefore, he has no claim of seniority below Mr. Sher Zaman."
' In pursuance of this letter, respondent No, 5 was also given seniority, in view of the earlier advice of the Establishment Division dated 27-6-1991, and in this case also the appellant was not a party at all. No doubt, the question for determination before the Establishment Division was of direct recruits having joined in the same year and respondents 4 and 5 were given the benefit of better merit position and late issuance of appointment orders vis-a-vis respondent No,6, Mr. Sher Zaman, who joined earlier having lower merit position, but the grievance of the appellant is altogether different from those of respondents 4 to 6, as he also claims seniority from the date of joining the Commission on the pattern and terms and conditions of undertaking furnished by him at the time of his appointment in the Commission that he will count his seniority from the date of joining, and as such, he cannot be denied this benefit as against respondents 4 .And 5, who admittedly joined much after the appellant. We do not want to enter into the controversy of late issue of appointment letters of respondents 4 and 5, but the fact is that both of them joined much after the appellant, and they cannot regain seniority over the appellant, as his seniority is to be. Reckoned from the date of joining the Commission and terms and conditions determined at the time of his transfer.
Furthermore, the appellant enjoyed. The seniority over and above respondents 4 and 5 right from 1988 till 1992 and it had created a vested right in his favour, which has been snatched from -him without giving him notice or hearing in person, on the basis of dispute of others. In our humble view, he could not be relegated in seniority irrespective of merits and even on, the principle of locus poenitentiae as enunciated in 1992 SCM R 1420 (Muhammad Nawaz v. Federation of Pakistan and others). It may also be observed that respondents 4 and 5 had been appointed since 5-8-1984 and 1-8-1984 on promotion and joining date is after the appellant, and their seniority position was reflected in the seniority list issued in 1988, which they did not agitate at the relevant time, and after about three years, they made belated representations/ appeals, which were hopelessly time- barred and were liable to rejection outright on this score, but their request was accepted and seniority was restored, which resulted relegation of the appellant at the cost of others/Government functionaries (PPSC), which he could not suffer.
7. For the reasons stated above, appeal is allowed; consequently the appellant is to be considered senior to respondents 4 and 5 Mr. Moinuddin Ahmed and Miss Farzaana Nasim.