' SAIDUZZAMAN SIDDIQUI, J.---This judgment will govern the disposal of abovementioned 29 civil appeals as leave was granted in all these cases to consider the following common question of law:- "8. Ch. Muhammad Akram, learned Advocate, Supreme Court appearing for the petitioners has urged that the majority view of the Tribunal runs counter to the recent judgment of this Court in the case of Muhammad Nawaz Khan, Assistant, T&T Directorate-General, Islamabad and another v. S. Muhammad Ijaz Raashid, Assistant T&T Directorate-General, Islambad and others (PLD 1993 SC 10) wherein inter alia following was held;- ' The ratio of the judgments cited above as well as the reasoning advanced in the judgment of Service Tribunal in Appeal No,17(R)/89 and the statutory provisions and the rules is that the direct recruits appointed against reserved seats having fallen vacant earlier ten time shall rank senior to the promotes holding officiating appointment though promoted earlier than the direct recruits'.
9. Whereas Mr. Munir Piracha, learned counsel for the private respondents has submitted that the judgment of this Court in the case of Khushi Muhammad and 3 others v. The General Manager (Now Vice-Chairman), Pakistan Western Railway, Headquarters Office, Lahore and 27 others (PLD 1970 SC 203), covers the case of private respondents wherein following as been held:-- ' We have not been shown any rule to uphold this method of determining seniority and none is discoverable on general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50 :50 between the direct recruits and the departmental promotes merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that confirmation in, the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promote, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade.'
10. We are inclined to grant leave to consider whether the majority view of the Tribunal is in consonance with the law as enunciated by this Court. Leave is accordingly granted."
2.The dispute in Civil Appeals Nos.227 to 243/93, 937 to 945/93 and 192/94 relates to seniority in the cadre of 'Assistant' between the appellants and private respondents in these appeals, inter se. The appellants and the private respondents in Civil Appeals Nos.227 to 243/93 are working in Planning and Development Division, Government of Pakistan, Islamabad, the appellants and private respondents in Civil Appeals Nos.937 to 945/93 are the employees of Finance Division, Government of Pakistan, Islamabad, while the appellant and private respondents in Civil Appeal No,192/94 are serving with the Department of Film and Publication, Government of Pakistan. The dispute in Civil Appeals Nos.683 and 684/94 relates to seniority inter se between the appellants and private respondents, who are employed in the Ministry of Interior, Government of Pakistan, Islamabad, in the cadre of Stenographer'. The appellants in Civil Appeals Nos.227 to 243/93 were directly recruited as 'Assistants' while private respondents in these appeals were promoted on ad hoc basis as 'Assistants' in the vacancies reserved in the quota for direct recruits. In Civil Appeals Nos.937 to 945/93 the position is just the reverse. The appellant in these cases were promoted on temporary basis as 'Assistant' while respondents in these appeals were recruited directly as 'Assistant'. The appellants in Civil Appeals Nos.683 and 684/94 were promoted as Stenographers in the vacancies reserved in the quota for direct recruits while the private respondents in these appeals were appointed as Stenographers directly. For the sake of convenience and to avoid confusion, instead of referring the parties as appellants and respondents or by their names, we will refer them as direct recruits and departmental promotes only, as the appellants and the private respondents in these cases belong to either of the two categories only.
3. It is not disputed before us that the departmental promotes in the above appeals entered the service in the cadre of 'Assistant'/ Stenographer', earlier than the direct recruits. It is, however, contended by the direct recruits that the departmental promotes having been appointed against the vacancies reserved in the quota for direct recruits, their appointment was in violation of section 9 of the Civil Servants Act, 1973 (hereinafter to be referred as the Act only) and therefore, their regular appointment in the cadre of Assistants/Stenographers, could only take place from the date the vacancy occurred in the quota reserved for departmental promotes. It is accordingly, contended on behalf of direct recruits that the departmental promotes having been appointed in the vacancies reserved in the quota for direct recruits, ranked junior to direct appointees though their dates of appointments as Assistant/Stenographers may be earlier to the dates of appointments of direct recruits. In support of the above contention, the learned counsel for the direct recruits relied on the following cases:--
(1) Federation of Pakistan v. Azam Ali (1985 SCMR 386);
(2) Ghulam Ahmed v. Federation of Pakistan (1992 SCMR 957), and
(3) Muhammad Nawaz Khan v. Muhammad Ijaz Rashid (PLD 1993 SC 10).
4. The learned counsel for the departmental promotes on the other hand contended that some of the departmental promotes were promoted against the posts reserved in the quota for direct recruits before the enforcement of the Act while others were promoted after coming into effect of the Act. With regard to the cases of departmental promotes who were promoted before enforcement of the Act the learned counsel contended that they will rank senior to direct recruits who were appointed later in point of time, in view of the law laid down by this Court in the case of Khushi Muhammad v. General Manager, P.W.R. (PLD 1970 SC 203). Regarding the case of departmental promotes, who were promoted after the Act was promulgated against the post reserved for direct recruits in the quota, the learned counsel argued that they too would rank senior to direct recruits, if the later had entered the service on a date subsequent to the appointment of departmental promotes in view of O.M. No,1/8/73-ARC, dated 20-11-1973, O.M. No,4/4/R.6, dated 5- 12-1983 and O.M. No 1/20/88-R.6 dated-7-8-1988, issued by Establishment Division Cabinet Secretariat.
5. The despoilments in Civil Appeals Nos.227 to 243/93, who were appellants before the Federal Service Tribunal (hereinafter to be called the Tribunal' only) had challenged in their appeals, the order of departmental authority dated 27-12-1989, rejecting their representation against the seniority list issued/circulated by the department on 28-11-1988, on the ground that they had failed to challenge the final seniority list issued earlier on 7-8-1985. The appeals were heard by a Full Bench of the Tribunal consisting of two members and its Chairman. The appellants herein, who were respondents before the Tribunal opposed the appeals both on the ground of limitation as well as on merits. The Tribunal unanimously rejected the plea of appellants that the appeals of respondents before the Tribunal were not maintainable as their representation before the departmental authority were time-barred. However, on the merit, one of learned members of the Tribunal (Ch. Hasan Nawaz) relying on the case Federation of Pakistan v. Azam Ali (supra), came to the conclusion that as the respondents were appointed against the vacancies reserved the quota for direct recruits, they could not claim seniority over the appellants who were direct appointees in their quota, though the dates of appointment of direct appointees were latter in time than those of departmental promotees. The learned member did not agree with the view expressed by the Tribunal in its earlier decision in the case of Muhammad Zakria Khan v. Secretary, Establishment Division and others (1990 PLC (C.S.) 45). The learned Chairman of the Tribunal (Justice (Retd.) Syed Ally Madad Shah) and one of its learned members (Mr. S.M. Ishaq), however, disagreed with the views expressed by Mr. Ch. Hasan Nawaz and held that those departmental promotes, who were appointed against the vacancies reserved in quota for direct recruits, before the enforcement of the Act, their cases stood regularised in terms of O.M.S. Dated 20-11-1973, and 5-12-1983. In respect of category of those promotees who were appointed against the vacancies reserved for direct recruits in the quota, after coming into force of the Act, the learned Chairman and one of its learned member (Mr. S.M. Ishaq) took the, view that they too were entitled to seniority over direct recruits in view of the provisions of section 12-A of Act and the law laid down by the Tribunal in the case of Muhammad Zakria Khan (supra). The learned Tribunal, accordingly, by a majority of 2 to I set aside the order of departmental Authority rejecting the representation of respondents and remanded the cases for a fresh decision on the seniority of the appellants and private respondents in these appeals, in the light of the majority decision of the Tribunal.
6. The appellant in Civil Appeal No,192/94 was also the appellant before the learned Service Tribunal. He claimed seniority- before the Tribunal over private respondents in the case on the ground that private respondents were promoted as ' Assistants' against the vacancies reserved for direct recruits in quota, and therefore, notwithstanding the earlier dates of appointment of " departmental promotes, he was entitled to be declared senior to them. The learned Chairman (Justice (Retd.) Abdul Razzaq A. Thahim) and a learned member (Mr. Misbah Ullah Khan) of the Tribunal unanimously held that the appellant was not entitled to claim seniority over private respondents in view of the decision of Tribunal in Muhammad Zakaria Khan's case (supra).
7. The appellants in Civil Appeals Nos.937 to 945/93 were also appellants before the learned Service Tribunal. They claimed seniority over the private respondents, on the ground that their appointments as 'Assistants' though against the vacancies reserved in the quota for direct recruits, were made much earlier to the appointments of respondents who were direct appointees. The learned Chairman (Justice (Retd.) Abdul Razzaq A. Thahim) and a learned member (Mr. S.M. Ishaq) of the Tribunal rejected the contention of appellant on the ground that on legal plain the appeals were time-barred and on merit, the appellants having been appointed against the vacancies reserved in the quota for direct recruits, could not claim seniority over the later in view of the law laid down by this Court in the case of Muhammad Nawaz Khan v. Muhammad Ijaz Rashid (PLD 1993 SC 10). The case of Muhammad Zakaria Khan (supra), was held inapplicable by the Tribunal.
8. In Civil Appeals Nos.683 and 684 of 1994, the appellants who were departmental promotes as Stenographers, challenged the seniority list circulated by department on 28-4-1993 and 3-7-1993, wherein promotes were shown junior to direct recruits (respondents). They claimed seniority from the dates of their appointments as Stenographer. The department rejected their contention. Their appeals before the Tribunal met the same fate as the Tribunal found that the dates of regular appointment of appellants were subsequent to that of direct appointees. From the above-stated facts, it would appear that the view expressed by the learned Tribunal in the above cases was not consistent.
9. It is an admitted position in the above cases that the departmental promotes were appointed against the vacancies reserved in the quota for direct recruits. It is also not disputed that the direct recruits were appointed much after the appointments of the promotes in the cadre of Assistants/Stenographers. The contention of the learned counsel appearing for the direct recruits in all the cases jointly is that in view of the law laid down by this Court in the case of Federation of Pakistan v. Azam Ali (supra) a departmental promote if promoted against the quota reserved for a direct recruit, would be deemed to be a regular appointee from the date a vacancy occurred in the quota reserved for departmental promote. The learned counsel specifically relied on the following observations in Azam Ali's case (supra), appearing at pages 393 and 394:-- "It follows from section 9 of the Act, which provision the Tribunal failed to even take note of, that departmental candidates are eligible for promotion only against the quota reserved under the rules for their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent.
In favour of the direct recruits. The departmental candidates were, therefore, not eleigible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion in excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for such a situation the departmental promotion is provided for but it is only pending the selection of the direct recruits and such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while , interpreting rule 7 of the Appointment, Promotion and. Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of the rule 7 in isolation is not in accord with the express provisions of section 9 of the Act."
9. A similar question was again considered by a Bench of this Court in the case of Ghulam Ahmad v. Federation of Pakistan (1992 SCMR 957) in which officiating appointment of a departmental promote in the vacancy reserved for a direct recruit came under consideration. It was observed as follows by this Court, at page 963 of the report:-- "10. The words 'to officiate' used in Para. 121(l.)(b) of the Code mean to act or to discharge an office for or on behalf of some other person. Where a reservation or a quota for promotion existed, and as pointed out in Para. 120 of the Code it is not in public interest to fill that post from outside the prescribed quota, either on account of its non-availability of officers or otherwise, then an officiating arrangement from a residual source is made. As soon as compliance with the paragraph 120 of the Code is possible, the arrangement is brought to an end. In this case exactly that has been happened. That appellant himself was subsequently placed in junior Class I for which reservation existed and was promoted through proper channel. His contention that at one stage the post of Assistant Accounts Officer was upgraded into Class-I post, would not entitle him to claim absorption in a grade Class-I service having its own cadre and Grade. The induction into a service as a Class-I Officer is one thing and to be a Class-I post-holder is another.
11. We find that a promotion on the strength of paragraph 121(1)(b) of the Code did not entitle the appellant to claim seniority in the higher promoted grade. He had to wait till in accordance with the reservation and the quota a vacancy became available for him in accordance with the provision made in para. 120 of the Code. It happened subsequently. Therefore, the appellant could not claim induction in Grade-18 seniority list in 1976 notwithstanding his officiating promotion under paragraph 121(1)(b) of the Code much earlier. His case like those of his colleagues, notwithstanding the use of the word "ad hoc" or absence of it, continues to be governed by paras. 120 and 121(1)(b) of the Code and by no other provision, read with General Principles of Seniority and section 9 of the Civil Servants Act."
10. The cases of Federation of Pakistan v. Azam Ali and Ghulam Ahmad v. Federation of Pakistan (supra) were referred with approval in the case of Muhammad Nawaz Khan. v. Muhammad Ijaz Rashid (supra), as follows:-- "After the enforcement of the above Act, the matter came up for consideration before this Court in the case of Federation of Pakistan v. Azam Ali (1985 SCMR 386) wherein too, the dispute regarding inter se seniority amongst the direct recruits and the promotes and also their appointment against reserved quotas was in issue. After incorporating the relevant provisions of the Civil Servants Act it was held that the direct recruits appointed against vacancies having fallen vacant prior in time in the reserved quota for direct appointment shall rank senior to those appointed earlier but not against a vacant seat in the reserved quota meant for the promotes. It is worthwhile to reproduce the relevant portion on pages 393 and 394 of the cited judgment.
' The above dictum was followed in subsequent case of Malik Ghulam Rasool v. Government of Punjab (1985 SCMR 1107) wherein it was declared that promotion/appointment of petitioner in that case being on ad hoc basis in excess of quota reserved for promotes and against a post meant for initial recruitment, on arrival of rightful person, he would stand reverted in normal course. In a recent judgment in case Ghulam Ahmad v. Federation of Pakistan (1992 SCMR 957) the above principle, more or less, was reiterated in pares. 10 and 11 of the (Saiduzzaman Siddiqui, J) judgment as follows:- ' The ratio of the judgments cited above as well as the reasoning advanced in the judgment of Service Tribunal in Appeal No,17(R)/89 and the statutory provisions and the rules is that the direct recruits appointed against reserved seats having fallen vacant earlier in time shall rank senior to the promotes holding officiating appointment though promoted earlier than the direct recruits."
11. The learned counsel for departmental promotes, in reply, relied on the case of Khushi Muhammad v. General Manager, P.W.R. (supra) and contended that it is against all canons of justice, equity and good conscience that a person who entered in service at an earlier date be relegated to a junior position only because at the time he was appointed there was no vacancy in the quota reserved for departmental promotes. The learned counsel in support of his arguments relied on the following observations in Khushi Muhammad's case (supra):-- "By placing the direct recruits in the grade as senior to the departmental promotes, although the latter had entered the grade earlier than the former, the impugned seniority list deems, by way of a fiction, that the direct recruits were the holders of the posts reserved for them in the grade on fifty- fifty basis, although they were not actually appointed to those posts and whenever appointed they should be deemed to have been appointed from the date from which the vacancy of their quota was to be filled. In other words, vacancies arising in their quota are deemed as permanent vacancies reserved for them, although, in the meanwhile, departmental promotes have been appointed against those vacancies. The latter have, therefore, to be relegated to the position of juniority as against the direct recruits whenever appointed to the vacancies reserved for persons from their quota. We have not been shown any rule to uphold this method of determining seniority and none is discoverable on general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50:50 between the direct recruits and the departmental promotes merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter see All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that-confirmation in the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promote, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade."
12. To dispose of the legal contentions arising in these appeals, it will be convenient if we divide cases of departmental promotes into two categories, namely, (i) the departmental promotes who were promoted against the quota reserved for direct recruits before coming into force of the Act, and (ii) departmental promotes promoted against the quota reserved for direct recruits after coming into force the Act.
13. The Act came into force on 26th of September, 1973 while the case of Khushi Muhammad v.
Federation of Pakistan (supra) was decided by this Court on 13-2-1970. Therefore, the seniority of a promote and direct recruit inter se in a grade, where the departmental promote entered the service or grade before coming into force of the Act is to be determined in accordance with the rule laid down by this Court in Khushi Muhammad's case (supra). The rule laid down in Khushi Muhammad case (supra) provided that if a departmental promote entered the grade at a date which was earlier to the entry of a direct recruit in that grade, the former would rank senior to latter although the former might have been appointed in a temporary or officiating capacity against a post reserved under the quota for direct recruit.
14. The case of departmental promotes, who were promoted in the vacancies reserved for direct recruits after coming into force of the Act are, however, on a different footing, and therefore, the rule laid down in Khushi Muhammad's case (supra) is not attracted in these cases. In Khushi Muhammad's case (supra) this Court specifically observed that no statutory rule was referred which provided for reservation of vacancies in 50:50 proportion between the departmental promotes and direct recruits. It was also observed in Khushi Muhammad's case (supra) that no rule was cited to support the contention that an incumbent holding the post in a same grade in a temporary or officiating capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade. The ratio in Khushi Muhammad's case (supra), therefore, proceeded on the basis that there was neither any statutory backing for the 50:50 quota fixed for departmental promotes and direct recruits nor there existed any statutory rule which provided that an incumbent holding a post on a temporary basis or in officiating position should rank lower in seniority to one who is appointed later in the same grade against a reserved post. After the decision of this Court in Khushi Muhammad's case (supra) some important developments took place -which may be noted here, as they have important bearing on the legal issues under examination in these cases. After the decision of this Court in Khushi Muhammad's case (supra) the Establishment Division through O.M. No,1/16/69-D-11, dated 31st December, 1970 issued the following General Principles of Seniority: "General Principles of Seniority: A. Direct recruits through the Federal Public Service Commission.--(i) Officers recruited directly by the FPSC through an earlier open advertisement would rank senior to those recruited through a subsequent open advertisement.
(ii) If two or more persons are recommended in open advertisement by the FPSC, their inter se seniority would be determined in the order of merit assigned by the FPSC.
(iii) If only one candidate is recommended in open advertisement by the FPSC, he would count his seniority from the date of recommendation by the FPSC, or the date of joining the post, which-ever is later:
(a) If the person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation by the FPSC.
(b) If the person was not already holding the same post, he would count his seniority from the date of his joining the post after being recommended by the FPSC.
BDepartmental promotions.--(i) Officers who are approved by the Selection Board/DPC for promotion to the higher grade en an earlier date shall rank senior to those who are approved on a later date, provided that:-
(a) an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch;
(b) when in a single reference, the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board7DPC in respect Of such persons when made subsequently, will be deemed to have been made on the date when the recommendation in respect of the original batch was made.
(ii) Officers approved by the competent Authority, on regular basis, for promotion to higher posts in the same batch shall retain the same seniority on promotion as they were enjoying in the lower grade. In case the date of continuous appointment of two or more officers in the lower grade is the same, and there is no specific rule whereby their inter se seniority in the lower grade can be determined, the officer older in age shall be treated senior.
(iii) The seniority of departmental promotes to the higher/grade shall count from the date of their regular promotion to the higher grade. The word regular' implies:--
(a) that the promotions to higher grades were made in accordance with the prescribed roster;
(b) that the promotions to higher grades were made in accordance with the prescribed Recruitment Rules i,e, on the recommendation of the Departmental Promotion Committee or the Selection Board (and in consultation with the FPSC where such consultation was necessary under the Consultation Regulations) and with the approval of the authority competent to make these appointments, and
(c) The promotions to higher grades were kept within the maximum quota prescribed in the Recruitment Rules for Departmental Promotion. In the event of the prescribed Departmental Promotion quota being exceeded in any particular case or cases, the seniority of the persons or person promoted in excess of the quota shall not count from the date from which the promotion or promotions were actually made, but from the date or dates from which they would have been made, if the quota had been properly followed. C Departmental promotes visa-a-visa direct recruits.-- Officers promoted to the higher grade in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year."
15. Thereafter, the Government promulgated the Act on 26th September, 1973 which provided for determination of seniority of a civil servant in a service, cadre or a post and conditions of eligibility for promotion to a higher post under sections 8 and 9 thereof respectively, which read as follows:-- , "8. Seniority.--(1) For proper administration of a service, cadre or post, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, as the case may be.
(2) Subject to the provision of subsection (1), the seniority of a civil servant shall be reckoned in relation to the other civil servants belonging to the same service or cadre, whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed.
(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to the post: ' Provided that, civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post.
9. Promotion.-- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed:--
(a) in the case of a selection post, on the basis of selection on merit; and
(b) in the case of a non-selection post, on the basis of seniority unfitness. "
The principles governing the rules of seniority of civil servants enunciated under section 8 of the Act may be summarised as follows:--
(i) The preparation of a seniority list of civil servants belonging to a service, cadre or post by the appointing authority became a statutory requirement.
(ii) The claim of a civil servant to a particular showily in a service, cadre or post was declared to be not a vested right of which civil servant.
(iii) The seniority of civil servants inter se belonging to the same service or cadre whether serving in the same department or office or not, is to be determined as provided in the rules.
(iv) The seniority of a civil servant appointed by initial recruitment to a service, cadre or post is to be determined in accordance with the rules.
(v) The seniority of a civil servant promoted to a higher post or cadre is to be reckoned from the date of his regular appointment to that post, and that;
(vi) The civil servants promoted to higher posts in one batch, retained their inter se seniority as in the lower post.
' The conditions of eligibility for promotion of a civil servant to a higher post discernible from the provision of section 9 of the Act may be stated as follows:--
(i) The civil servant to be eligible for promotion to the higher post must possess the minimum qualification prescribed under the rules for that post.
(ii) That promotion of the civil servant could be made only to a IL her post for the time being reserved under the rules for departmental promotions in cadre or service to which such civil servant belongs.
(iii) Subject to the conditions mentioned above, promotion of a civil servant to a selection post is to be made only on merit; and
(iv) Promotion to non-selection post to be made on the basis of seniority cum fitness.
The rule-making power under the Act is contained in section 25 of the Act, which reads as follows:- -
25. Rules.--(1) The President or any person authorized 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.
(2) 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.
By virtue of subsection (2) of section 25 (ibid), all existing rules, orders or instructions in respect of any terms and conditions of service of civil servant duly made or issued by a competent Authority, in so far it is not inconsistent with the provisions of the Act are saved and are to be treated as rules made under the Act. The validity of the General Principles of Seniority issued by Establishment Division on 31-12-1970 was examined in the light of provisions of the Act in Azam Ali's case (supra) and it was held that these guidelines not being in conflict with any of the provisions of-the Act, acquired the force of rules on the strength of the language of section 25(2) of the Act. The precise observation of this Court in this regard in Azim Ali's case (supra), are as follows:-- "As the contents of the Circular of December, 1970 are not found to be inconsistent with any provision of the Act, they acquire force of rules under the Act on the strength of section 25, subsection (2) of the Act which provides: ' Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by any authority competent to make them and enforced 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 &titled to be Rules under the Act."
16. From the preceding discussion, it emerges that the seniority of a civil servant promoted to a post, service or cadre takes effect from the date of his regular appointment to that post. The expression 'regular appointment' as interpreted in General Principles of Seniority, issued by the Government on 31-12-1970, in relation to a civil servant promoted to a higher post means, not the date of his actual appointment to that post but the date on which he could have be& promoted, if the quota had been properly followed. The above interpretation of word 'regular appointment' in paragraph B(iii)(c) of O.M. No,1/16/69-D.II, dated 31-12-1970 was found to be in harmony with the language of sections 8 and 9 of the Act in Azam Ali's case, as follows:-- "If section 9 of the Act is not kept in view there may be scope for arguing that the expression 'regular appointment' has been given an extended meaning. However, if the provisions of section 9 of the Act are kept in view then the meaning given to the expression 'regular appointment' will appear to be in accord not only with section 9 but also with the other provisions i,e, subsection (2) of section 2 of Civil Servants Act; section 8, subsection (4) of the Act and section 2, subsection (1), clause (f) of the Act. There is no inconsistency or repugnancy. On the contrary, it would appear to be in harmony."
17. The learned counsel for departmental promotes, however, contended that a departmental promote appointed against the vacancy reserved in the quota for a direct recruit between the period from 1-1-1972 to 1-7-1977 (dates mentioned in section 12-A of the Act) is entitled to confirmation and seniority over a direct recruit who entered the service after the date of the appointment of departmental promote. The learned counsel argued that due to creation of Bangladesh and consequent repatriation and migration of large number of Government employees belonging to former East Pakistan, a vacuum was created in the ministerial services in the then West Pakistan. In order to meet this extraordinary situation the rule relating to reservation of 50, quota in the service for direct recruit was relaxed and it was provided through O.Ms. That those departmental promotes who were appointed against the quota reserved for direct recruits if they fulfilled the conditions laid down in those .Ms., may be regularized and confirmed against the post held by them in the quota reserved for direct recruits. Reliance is placed by the learned counsel for the departmental promotes in support of his contention on the O.M. No,1/8/73-ARC, dated 20-11-1973, O.M. No,4/4/81-R dated 5-12-1983 and O.M. No,1120/88-R-6, dated 7-8-1988. The relevant paragraph of O.M., dated 20-11-1973 relied by the learned counsel for departmental promotes, reads as follows:-- "2. According to the rules framed under the Federal Public Service Commission Act (LXVI) of 1973, the functions of the Commission have now been confined to initial recruitment to posts in Grades- 16 and above, initial recruitment to posts in Grade-15 and below, therefore, will be made in future by the Ministries/Divisions themselves through Departmental Promotion Committee in accordance with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the administrative instructions contained in Cabinet Secretary's Circular D.O. Letter No,1/9/73-F.IV, dated the 22nd October, 1973. As for Government servants who are already serving in Grade-15 and below on temporary/ad hoc basis and who would have or dingily been replaced by nominees of FPSC their appointment would require to be regularised before they are considered/eligible for confirmation.
The great majority of staff in this category is ministerial staff in Ministries/Division and their attached departments who were recruited against direct recruitment quota independently of the Commission or those who were permanent in lower grades and were promoted in excess of the promotion quota against vacancies reserved for direct recruitment. It has been decided that these ad hoc/temporary appointees in Grade-15 and below may be considered eligible for confirmation provided they possess the prescribed minimum educational and other qualifications prescribed for the post and have put in minimum of five years' satisfactory service, as on 31st December, 1973, in the respective grades. Their suitability for retention in service on regular basis and their fitness for confirmation will be determined by departmental committee in the light of their A.C.Rs, and service record. Since these individuals were holding posts in direct recruitment quotas, their retention in service on regular basis would be subject to observance of the prescribed provincial and regional quotas. If vacancies reserved for a particular province or region cannot be filled from the temporary/ad hoc employees already serving in a particular Ministry/Division the post should be advertised and filled by appointment of persons from the province/region for which the vacancies are reserved."
3. The composition of the Departmental Committees for confirmation should be the same as prescribed for Selection Committee in Cabinet Secretary's D.O. Letter No,1/9/73-F.IV, dated 22nd October, 1973. The Committee should observe the following procedure: ' A roster of permanent vacancies in various grades should be drawn up showing dates from which permanent vacancies have occurred.
(ii) If seniority lists have not already been drawn circulated and finalized di term consideration of the representations received, the seniority lists shield be prepared and circulated to all concerned.
Any representation received should be considered by the Committee and any question of principle of interpretation of a rule of seniority raised should be cleared with the Establishment Division.
(iii) The committee will scrutinize the records of all persons who are senior and eligible for confirmation and recommend whether they are fit to be confirmed or their case should be deferred.
(iv) Where confirmation of senior persons are deferred requisite number of vacancies should be reserved for them and they should be informed of their shortcoming. Their cases should be considered after receipt of fresh A.C.R. On them.
(v) A list of persons confirmed should be forwarded to the Establishment Division indicating also which other persons claim to be senior and why their representations have been rejected, for information and record.
4. All Ministries and Divisions and Heads of Departments are requested to ensure that confirmation in the Ministries/Divisions and Departments under them are proceeded with and finalized quickly in accordance with the Government instructions. \
5. This 0.M. Supersedes Establishment Division O.M. No, 11/9/71-C.II, dated 27th September, 1971."
' According to above instructions an ad hoc/temporary Government servant in Grade-15 and below if appointed directly without reference to commission or was permanent in lower grade but promoted in excess of promotion quota against vacancies reserved for direct recruits could be considered for regularization and confirmation provided he (i) possessed prescribed minimum educational and other qualifications for the post and (ii) had put in a minimum of 5 years' satisfactory service as on 31-12-1973 in the respective grades. The suitability of such incumbent in the service on regular basis and their fitness were to be decided by the departmental committees in the light of their A.C.Rs and service record, and since these incumbents were being regularized against the quota of direct recruits, their regularization and confirmation were made subject to observance of prescribed provincial and regional quotas. The above instructions were followed by O.M. No,4/4/81-R.6, dated 5-12-1983 which contained the following further instructions on the subject of regularization of temporary/ad hoc ministerial staff appointed/promoted before 20-10- 1973:-- "The undersigned is directed to refer to paragraph 2 of the Establishment Division's O.M. No,1/8/73- ARC., dated the 20th November, 1973, wherein methodology for regularization of services of those purely temporary/ad hoc employees and persons promoted in execss promotion quota, was laid down, who were appointed/promoted as such on a date later than 31-12-1968.
2. The Ministries/Division unfortunately did not observe those instructions with the result that their regular appointees are still continuing despite lapse of over nine years. With a view to considering regularization of services of remaining irregular appointees, necessary data was collected vide this division's O.M. No, 4/4/81-F.II, dated the 24th March, 1983. After considering all the gross and cons it has been decided that the condition of five years' service in a graded (post) as on 31-12-1973, prescribed in Para. 2 of the O.M., dated 20th November, 1973, may be extended to cover all those purely temporary/ad hoc ministerial employees who joined a particular office on date earlier than 20-10-1973 i,e, the date on which the Civil Servants (Appointment, Promotion and Transfer Rules, 1973 were notified. Thus the ministerial employees possessing five years' continuous service in a grade (post) in a particular office as on 20-10-1978 may be considered for regularization by the respective DPC/DSC on the basis of their past service record (A.C.Rs,) and subject to fulfillment of the following conditions:-
(a) That the employee concerned possesses the minimum educational and other qualifications prescribed for direct recruitment to the respective post.
(b) That the concerned employee is adjusted against the available vacancy of direct recruitment quota of the province/region to which it stands allocated.
3. For the purpose of regularization, service in a higher post may be counted for regularization in a lower ministerial post to the extent the employee concerned has served in the lower as well as the higher post in the same office. Subject to the fulfillment of other requirements, regularization in a grade/post will take effect from the date of availability of regular post against which the employee could be adjusted.
4. The Ministries/Divisions are now requested to regularize the service of their employees appointed irregular or promoted in excess of promotion quota. They may complete the exercise by the end of January, 1984, where after a compliance report may be sent to this division indicating simultaneously the number of employees still required to be regularized on the enclosed pro from."
' The above-quoted instructions modified the earlier instructions issued through O.M., dated 20-11- 1973 only to the extent that the condition of 5 years' service in a grade or post as on 31-12-1973 was extended to cover the cases of those incumbents as well who had the required 5 years' continuous service in grade (post) in a particular office as on 20-10-1978. However, 5 years' continuous service remained a primary condition for the regularization of ad hoc/temporary service subject to fulfillment of other conditions, laid down in O.M. Dated 20-11-1973. This position was reiterated in O.M. No,4/4/81-R. VI, dated 27-12-1983, which was as follows:-- "The undersigned is directed to refer to this Division's O.M.No,4/4/81-R.VI, dated 5th December, 1983 on the abovementioned subject and to say that a doubt has arisen whether the persons concerned i,e, those who had not completed five years' service on 31-12-1973, would be regularized in the relevant grade from a date subsequent to completion of five years by them or this could be done from an earlier date if regular posts/vacancies were available.
2. It is hereby clarified that completion of five years' service was a primary condition for the regularization of service subject to fulfillment of other conditions also mentioned in the aforesaid communication. Therefore, regularization of service of those irregular employees who could not be regularized earlier, would be from a date subsequent to completion of five years' service.
(Sd.)
(Ch. Muhammad Saeed Anwar)'
Section Officer."
18. The learned counsel for the departmental promotes has, however, relied on 0.M. No,1/20/88-R.6, dated 7-8-1988, to contend that even the condition of five years' service after 13-10-1973 which was a necessary requirement under O.M. Dated 20-11-1973 for regularization of ineligible employees promoted to higher posts, was also dispensed with. The O.M. Dated 7-8-1988 relied by the departmental promotes reads as follows:-- "Government of Pakistan Cabinet Secretariat Establishment Division ' No .1/20/88-R.6 Rawalpindi, the 7th August, 1988..
' Office Memorandum ' Subject:- Seniority of Stenotypists in the Health Division.
' The undersigned is directed to refer to the Health Division's 0,M. No,5/22/86-Admn.I, dated the 30th May, 1988 and the discussions held by DS (Admn) of that Division in the Establishment Division on 27th June, 1988 on the abovementioned subject and to say that the process of regularisation of ministerial staff has almost been completed by the other Ministries/Divisions after fulfilling the conditions laid down in the following O.Ms of this Division:
(i) O.M. No, 1/8/73-ARC, dated 20th November, 1973.
(ii) O.M. No, 4/4/81. R.6, dated 5th December, 1983.
(iii) O.M. No, 4/4/81-R.6, dated 27th December, 1983.
' Under the above instructions the ineligible employees have been assigned seniority as regular employees after they had put in at least 5 years' service in a cadre. It is, therefore, regretted that no exception can be made in the case of employees by the Health Division and that their irregular employees cannot be allowed seniority as regular employees with effect from the date they joined as irregular/ineligible employees. They can be allowed seniority only from the date their services have been regularised after meeting the conditions for regularisation laid down under the above orders.
2. It may also be stated that an ineligible employee promoted to a higher post may be regularized against the post held by him against a direct quota post provided he fulfils all the conditions for direct appointment to that post, i,e, educational qualification/experience, availability of the post, provincial/regional quota etc. Without fulfilling the condition of 5 years' service after 13-10-1973.
3. The FPSC (Functions) Rules, 1973 whereby the functions of the Commission were confined to initial recruitment of the posts in APUG and civil posts connected with the affairs of the Federation in B-16 and above etc. Were notified on 13-10-1973. By virtue of this notification the last date up to which the employees appointed were treated as ineligible was 12th October, 1973. From 13th October, 1973, onwards, the Ministries/Divisions were empowered to make initial recruitments to posts in Grade-1 to 15. The Health Division is, therefore, advised to determine the ineligible employees with reference to the cut out date.
' Health Division, Islamabad.
(Std)
(Hukam Dad Kiani), Deputy Secretary Phone: 63276."
' The above O.M. Was apparently addressed by the Cabinet Secretariat, Establishment Division, in reply to an O.M. Of Health Division dated 30-8-1988. The caption and the tenure of the letter show that the Health Division had requested for grant of seniority to its ineligible employees upon regularization of their services from the dates they were promoted. The Cabinet Division after referring to .Ms. Dated 20-11-1973, 5-12-1983 and 27-12-1983, in clear terms pointed out that ineligible employees could be assigned seniority as regular employees after they had put in at least 14. Years' service in the cadre as laid down in these O.Ms. And therefore, no exception could be made in respect of the employees of Health Division. The reliance by the departmental promotes on Para. 2 of O.M. Dated 7-8-1988 in support of their contention that condition of 5 years' service for regularization was dispensed with, is totally misconceived as the words without fulfilling the condition of 5 years' service after 13-10-1973" used in the sentence only referred to the qualifications of the direct recruits which the ineligible employees, were required to fulfill at the time of consideration of their cases for regularization. There is hardly any scope for the argument that para.2 of the O.M. Dated 7-8-1988, dispensed with the condition of 5 years' service in the cadre after 13-10-1973, in view of the categorical statement contained in para. 1 of the said O.M. Making the condition of five years' service a must for regularization and confirmation of the services of ineligible appointees.
19. The learned counsel for direct recruits, however, contended that the O.Ms. Dated 20-11-1973 5-12- 1983 and 7-8-1988 were in direct conflict with the provisions of section 9 of the Act as the quota reserved in the proportion 50:50 for direct recruits and departmental promotes could not be varied by the Government in the manner indicated in these O.Ms. We are unable to accept the contention of the learned counsel for direct recruits. A careful consideration of section 9 of the Act will show that one of the conditions of eligibility for, promotion to higher post is, that the promotion should be within the quota for the time being reserved for such post. It is, therefore, quite clear that although section 9 recognizes the validity of the quota which may be fixed by virtue of rules for direct recruits and departmental promotes, but no specific quota has either been fixed or recognized under section 9 of the Act. The competent Authority, therefore, was free to prescribe or vary the quota for the purpose of promotion of departmental promotes and direct recruits in a particular post from time to time. It is true that in the case of Federation of Pakistan v. Azam Ali (supra), this Court ruled that a departmental promote promoted against a post reserved for a direct recruit would take his seniority and be deemed to have been regularized in the post, from the date a vacancy in the departmental quota occurred, and this rule was reiterated in the cases of Ghulam Ahmad v.
Federation of Pakistan and Muhammad Nawaz v. Ijaz Shabbir (supra), but these cases are distinguishable as the effect of O.Ms. Dated 20-11-1973, 5-12-1983 and 7-8-1988 was not considered by this Court in these judgments. It is not disputed before us That ratio of 50:50 quota for departmental promotes and direct recruits was fixed through an O.M. Issued by Cabinet Secretariat, Establishment Division. Under Rule 3(2) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the method of appointment and qualification and other conditions applicable to a post is to be laid down by the Ministry/Division concerned in consultation with Establishment Division. There being no statutory rule in field fixing the ratio of 50:50 quota for departmental promotes and direct recruits, the ratio fixed through an O.M. Issued by Establishment Division, could be varied through a subsequent O.M. Of H the same authority. In the case of M. Zafar Khan v.
Secretary, Establishment Division (1995 SCMR 1840), it was field by this Court that where statutory rules were not framed by the Government, reliance could be placed on O.M. I issued by the Government. We are therefore, inclined to hold that the O.Ms. Dated 20-11-1973 and 5-12-1983 had the effect of varying the ratio of 50:50 quota fixed for departmental promotes and the direct recruits for the period specified in these O.Ms. However, this does not conclude the matter as the seniority of departmental promotes is to be reckoned from the date of their regular appointment in the post as required by section 8(4) of the Act. There are serious disputes in these cases with regard to the dates of regularization of departmental promotes against the post of Assistants/Stenographer. It is in fact claimed that the appointment of departmental promotes was not even regularized in the lower cadre. It is also to be ascertained whether the departmental promotes fulfilled the prescribed qualifications for the posts of Assistants/Stenographer besides the fact that they have rendered five years' continuous service before 20-10-1978 in. The cadre of Assistant/Stenographer to qualify for regularization. Determination of these factual aspects of these cases is necessary before taking up the cases of departmental promotes for regularization under the O.Ms. Referred to above. As these factual controversies cannot be resolved in the present proceedings, it would be appropriate to remit these cases to the departmental authority to re- determine the question of seniority in these cases in the light of the observations made above.
20. Before concluding, we may mention here that in some of these cases it was argued that the appeal before the Tribunal was not maintainable as the departmental representation was rejected as time-barred. The learned Tribunal rejected this plea. This plea of limitation was repeated before us in some of these appeals. However, keeping in view the general importance of the legal questions raised in these cases, it would not be appropriate to non-suit some of the appellants on the plea of limitation. We, therefore, overrule the plea of limitation.
21. These appeals are, accordingly, allowed, the orders passed by the learned Service Tribunal and the departmental authorities are set aside. These cases are remanded to the departmental authorities to decide the disputes of seniority in the light of the observation made above. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.