' MUHAMMAD RAZA KHAN (MEMBER).---The present appeal is an off-shoot of a long-standing dispute between two categories of Section Officers of the Office Management Group. The one category who is presently represented by the appellant or the direct recruitees of the OMG through CSS Examination conducted by the Federal Public Service Commission. The second category that is represented in this case by the respondents Nos. 5 to 15 is a group of Section Officers that have been promoted from the Ministerial Staff of the Pakistan Secretariat through departmental examination. Earlier there had also been a dispute between two groups wherein the issues of inter se seniority, grant of seniority with retrospective effect, prescribed quota for the groups and the violation of provincial quota, etc. Had been in dispute. In 1990 several service appeals bearing Nos.
511, 512, etc. Were filed on behalf of the direct appointed Section Officers which were decided on 14- 10-1992 and the final verdict of this Tribunal was: "By virtue of clause (c) to subsection (3-A) of the Service Tribunals Act, 1973, the decision of the Tribunal shall be in the terms of the decision recorded by the Chairman as in paragraph 13 reproduced below: 'For the reasons recorded above, the appeals are allowed to the extent that the regularization of the Acting Charge Section Officers vide Notification dated 7-7-1990 could not be made effective from 31-12-1989' in the opening paragraph of the Notification shall stand deleted."
' This judgment of the Tribunal was challenged in the Supreme Court and the leave has been granted by the Honourable Supreme Court. Meanwhile the said final verdict of this Tribunal was implemented by the Establishment Division vide Notification dated 9-1-1993 and words "with effect from 31-12-1989" in certain circulars issued by the Establishment Division in 1990 and 1991 were deleted. In pursuance of the said judgment. Thereby the retrospective regularization with effect from 31-12-1989 of more than 100 Section Officers was withdrawn and they were presumed to have been regularised with prospective effect, from the dates of their notification. However, as stated earlier the above judgment of the Tribunal is sub judice before the Honourable Supreme Court.
Meanwhile Mr. Sikander Aqeel Ansari (the present appellant) and one Mr. Waqar Ahmed filed two appeals in 1993 bearing Nos. 163 and 164(R) of 1993. These appeals were dismissed in limine by this Tribunal on 1-8-1993 in these words: "We have heard Mr. Fazal Elahi Siddiqi, the learned Advocate appearing for the appellants. He has argued that the appellants were not party before the Tribunal in earlier round of litigation and there is still confusion in the judgment of the Tribunal as regards the promotee Section Officers, which may be clarified. We have also been informed that the judgment of the Tribunal in the above appeals has been challenged in the Supreme Court and the matter is still sub judice. In these circumstances, we are sorry we cannot consider these appeals as the said issue of interpretation of rules is pending before the Supreme Court, Moreover, this Tribunal has limited scope to review its own decision which is not the case. As such, both the appeals are not maintainable and are accordingly dismissed in limine."
' Aggrieved by this judgment in limine they preferred a civil petition for leave to appeal wherein leave was granted by the Honourable Supreme Court on 21=12=1993 as follows: "The order of the Service Tribunal is based on its earlier order passed in Appeal No, 511 of 1990.
(2) Leave has already been granted against the last=mentioned order vide order dated 24=4=1993 in C.P,S.L.A. No, 11 of 1993,
(3) Leave is granted in these cases also."
' Therefore, the main issues pertaining to the seniority, effect of regularization, retrospectivity, etc. Are sub judice. However, by an order dated 31=1=1995 the respondent No, 1 on the recommendation of respondents Nos, 2 to 4 (the D,P.C.) promoted the respondents Nos, 5 to 15 to BPS=18. The appellant filed a representation to the competent Authority and, after waiting for the statutory period of 90 days, has come up to this Tribunal in the present appeal. He alleges that he was appointed as an Officer of the 0MG in BPS-17 with effect from 1=12=1990 on the basis of C.S.S. Examination, 1989. Prior to his joining OMG he was serving as Civil Judge in BPS-17 from 30.11=1985 to 30.11=1990 under the Government of Punjab. He alleges that in view, of the verdict of this Tribunal in Appeal No, 511(R) of 1990 and the Notification dated 9-1=1993 (referred to before) the respondents Nos. 5 to 15 were appointed in the OMg on regular basis with effect from 1991 and, therefore, they were junior to the appellant. The appellant finally contends tht he being senior to respondents Nos.5 to 15, should have been considered by the D.P.C. For promotion and the vested right of the appellant has been effected and the proceedings of D.P.C. Were not competent being violative of the rules,
2. The respondents Nos. I to 4 and certain private respondents filed their written objections claiming therein that the appellant could not be considered for promotion because he did not fulfil the requirement of length of service coupled with seniority which is basically a pre=condition for consideration for promotion to next higher post. Allegedly the service rendered in the previous department is not counted towards seniority in the new post/cadre/group. Thus, the main emphasis on behalf of respondents 1 to 4 was that the appellant had deficient length of service and he could not be considered for promotion in supersession of his seniors particularly those who are senior In his own batch. The private respondents, on the other hand mainly relied on the gradation list of the Officers of OMG as on 15=2=1993 and contended that the appellant appeared at Serial No,91 of the said gradation list and he could not be promoted as he was too junior in the order of seniority.
3. We have listened to the arguments of the learned counsel representing the parties and perused the record. Although we may not touch the issues which are sub judice before the Honourable Supreme Court but we cannot avoid commenting on a fact that on the one hand the respondents agitated that the question of retrospective regularization of promotee Section Officers with effect from 31.12=1989 which is sub judice, however, by their own Notification dated 9-1-1993 they have implemented the judgment of the Tribunal but on the other hand the seniority list (called the gradation list) has been printed and published as on 15-2-1993 (more than one month after the issue of Notification dated 9-1-1993) wherein most of the entries in column No, 4 show the date of present rank of some of the Section Officers as 31-12-1989. These entries are in conflict with the Notification dated 9-1-1993. Similarly the private respondents on the one hand assert that the issue of retrospectivity has been settled by the Establishment Division but challenged before the Supreme Court, should not be discussed being a sub judice matter but on the other hand they relied on the same seniority position whereby those officers who were regularized in 1990 and 1991 have been shown to have regularized with effect from 1989. A similar confusion exists in the mind of the appellant who, on the one hand claims that his earlier Appeal No,164(R) of 1993, based on the judgment of earlier Appeal No,511(R) f 1990 is still sub judice before the Honourable Supreme Court by the judgment uoted above but on the other hand he also places his reliance in the present ppeal on the same judgment of this Tribunal in Appeal No, 511(R) of 1990. Be s it may we dispose of the appeal without touching the said sub judice issues aving conflicting effect in the mind of the parties.
4. This appeal can be disposed of on the sole issue of seniority-cum-length f service of the appellant. Undoubtedly he joined the OMG in 1990 and in cordance with the policy as per notification of the Establishment Division ated 12-1-1981, the minimum length of service required for promotion to rade-18 has to be five years' service in Grade-17. The meeting of the D.P.C. As held prior to 31-1-1995 when the appellant did not qualify for promotion on e basis of length of service in OMG with effect from 1990. The appellant elieves that his previous service under the Government of Punjab in BPS-17 an be counted towards required length of service necessary for promotion to PS-
18. He places reliance on the Establishment Division O.M. No,1/9/80-R.2, ated 2-6-1983 and O.M. No, PF/88/92-OMG-II, dated 23-5-1993. These are oted herein for convenience of reference: "Sl. No, 201: Minimum length of service for eligibility to promotion of officers.---In pursuance of rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and in supersession of the instructions laid down in the Establishment Division's Office Memorandum No, 1/9/80-R.II(A), dated the 12th January, 1981, (Annexure I), the President is pleased to decide that the minimum length of service for promotion to various grades shall be as follows:-- ' For Grade-18 5 years in Grade-17 ' For Grade-19 12 years in Grade-17 and above. For Grade-20 17 years in Grade-17 and above. For Grade-21 22 years in Grade-17 and above. Provided that:
(i) Where initial appointment of a person not being a person in Government service takes place in a post in Grade-18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the following periods: {{TABLE}} First appointment in Reduced by Grade-18 5 years. Grade-19 12 years. Grade-20 17 years. {{TABLE}}
(ii) Where initial appointment of a person already in Government service takes place, on recommendations of the Federal Public Service Commission, in a post in Grade-18, 19 or 20, the length of service specified in this office memorandum shall be reduced by the periods specified in proviso (i);
(iii) Where first appointment of a person other than a person covered by proviso (ii) was made to Government service in Grade-16 or below, one-half of the service in Grade-16 and one-fourth in Grade-15 and below may be counted as service in Grade-17 for computing length of service for the purpose of promotion only."
(Authority ---Estt. Division O.M. No, 1/9/80-R.2, dated 2nd June, 1983).
"No, PF.88/92-OMG. II (Pt.) Islamabad, the 23rd May, 1993. OFFICE MEMORANDUM Subject: COUNTING/ADDITION OF LENGTH OF SERVICE PRIOR TO JOINING THE O.M.G.
' The undersigned is directed to refer to Interior Division's O.M. No,5/8/92-Admn.I, dated 20th February, 1993 on the above subject and to say that previous service rendered by Mr. Azizur Rehman, as Lecturer under the Federal Government as well as Extra Assistant Commissioner under the Government of Punjab will be counted/added towards his length of service for the purpose of promotion etc. In terms of Establishment Division's O.M. No,1/9/80-R.2, dated 2-6-1983. However, he will be considered for promotion from BPS-17 to BPS-18 in OMG according to his seniority in the Office Management Group."
' The perusal of the above O.M. Issued by the Establishment Division shows that although the appellant squarely places his reliance on these documents, they do not support his case. So far as the O.M. Dated 23-5-1993 is concerned, the previous service of an Officer has been specifically ordered to be counted/added towards his length of service for the purpose of promotion, etc. (which include leave and pension as well). However, it has been specifically mentioned that at the time of promotion from BPS-17 to BPS-18 in OMG he will be considered according to his seniority in the OMG. Although the appellant has not shown that his previous service has been specifically approved by the Establishment Division to be counted as in the referred case, however, had he been successful in getting such an order, even then he would have to wait for the maturity of his seniority in the OMG to be eligible for consideration for promotion to BPS-18. The second instruction dated 2-6-1983 is similarly irrelevant to give any benefit to the appellant. The said instruction does not mention that the person with previous service will supersede his seniors while his. Previous service is counted for the purpose of his promotion. The proposition can be stated in simple terms that if a civil servant is otherwise senior and fit for promotion but he cannot be promoted for want of the required length of service, his previous continued service can be counted to make up the deficiency of service and thereby the previous service in Grade-17 can be counted as service in BPS-17 while previous service in BPS-16 is computed at one-half and the service below Grade-16 is counted as one-fourth while computing"The length of service in BPS-17 but the other clear principle of maintenance of seniority cannot be trampled while complying with these instructions. During the arguments we were told that the appellant was at Serial No,91 of the gradation list whereas the Officers at Serial Nos. 89 and 90 belong to the same batch and are definitely senior to the appellant. Therefore, the benefit of previous service cannot be extended to the appellant to the detriment to seniority of said two officers.
5. The result of the above discussion is that we are of the opinion that the appellant was not senior in his batch and his service in the OMG was less than length of service required for promotion to BPS-18 and the benefit of his previous service under the Provincial Government cannot be extended to him-whereby he supersedes the senior officers of his batch. In these circumstances, there is no merit in this appeal which is hereby rejected.
6. No order as to costs.
6. Parties to be informed.
Appeal rejected.