MUNAWAR AHMAD MIRZA, J.---This appeal, by leave of the Appeal No. 8(R) of 1995 by Federal Service Tribunal, hereinafter referred to as 'Tribunal'.
2. Brief facts mentioned are, that appellant joined Hydrocarbon Development Institute of Pakistan as Assistant Scientific Officer/Chemist (B-16) on 21-8-1982. She was promoted as Scientific Officer (Chemist) B-17 on I-11-1987. It is case of appellant that respondents Nos. 5 and 6 in the capacity of Senior Technician and Laboratory Technicians, working as supporting officers within the same department in B-16. It was averred that respondent No. 5 Muhammad Saeed was appointed as Senior Technician (B-15) on 12-4-1981 and later promoted as Laboratory Technician (B-16) on 19-8-1982; It may be seen that appellant, respondents Nos. 5 and 6 were promoted to the post of Chemist (B-17) on the same day viz. 1-I I-1987. Appeal against Dildar Khan respondent No. 5 in Civil Petition No. 173 of 1995 was not pressed before Tribunal because of having qualified M.Sc. He was redesignated by competent Authority as A.S.O.
(Chemist) prior to promotion as Chemist (Scientific Officer) in B-17.
3. Department on 20-11-1989 prepared seniority list pertaining to B-17 officers performing functions in Hydrocarbon Development Institute of Pakistan, wherein appellant ranked junior to private respondents. For better appreciation relevant service details of appellant and private respondents are given below:-- S.No, Name Date of 1st appointment with status and scale.Date of subsequent promotion with scale and designationDate of present promotion with scale
1. Miss Nuzhat Mahmood 21-8-1982 Assistant Scientific Officer (B-16) 1-11-1987 Chemist B-17
2. Mr. Muhammad Saeed 2-4-1981 Technician B-15 12-4-1982 Laboratory Technician B-16 1-11-1987 Chemist B-17
3. Mr.Sagheer Hussain Malik 19-8-1982 Laboratory Technician B-16 1-11-1987 Chemist B-17
4. It may be seen that qualification, experience and age limit for initial appointment to the office of Scientific Officer B- 17 is given below: "Scientific Officer 17 M.Sc. in Specific discipline Experience preferable 28 Years ' Whereas channel of promotion from B-16 to the office of Chemist (Scientific Officer B-17) is also mentioned hereunder:-- "Scientific Officer Research Engineer 17 Assistant Scientific Officer/Senior Laboratory Technician/Senior Scientific Assistant (Grade--16) of respective discipline.5 years service in Grade-16 in the related field."
5. Respondents Nos. 5 and 6 were shown senior to appellant in the seniority list, thus feeling aggrieved she made representation to the departmental authorities. Her representation was eventually rejected by competent authority on 30th August, 1994 in the following terms:-- "I am directed to refer to your petition dated 9-4-1994 and 16-5.-1994 and to inform that the case has been examined in the light of facts, Government Rules on the subject as well as draft Service Rules HDIP, duly approved by its Board of Governors and the request is found untenable. Therefore, the seniority role as communicated vide Office Memorandum No. 11018/4(Estab)/94, dated 20-11-1989 will stand."
6 Appellant being dissatisfied challenged inter se seniority and rejection of departmental representation before the Tribunal through Appeal No. 8(R) of 1995. The appeal was ultimately rejected on 15-3-1995. Relevant observations are reproduced as under:-- "The main thrust of the argument of the learned counsel for the appellant is that since the respondents 6 to 7 were not eligible for promotion as A.S.O., they could not be treated as regular promotee and were not entitled to regain seniority over the appellant. But the fact is that under the rules, for promotion to the post of Scientific Officer (B-17), A.S.O./Senior Lab. Tech:/Senior Scientific Assistants (B-16) having five years service in B-16 in the related discipline were eligible. The respondents 6 and 7 having been promoted as Lab. Tech. (B-16) with effect from 12-4-1981, having the requisite .Length of service were eligible and were rightly promoted as S.O. (B-l7). It may be observed here that since the appellant did not challenge their promotion as A.S.O. At the relevant the, it is to late now to have any grievance with regards to their promotion as A.S.O., and so also as S.O. (B-17). Under the General Principles of Seniority, the persons who are selected for promotion to higher grade in one batch shall, they shall, on their promotion, retain their inter se seniority as in the lower grade. Since the respondents 6 and 7 were senior to the appellant in lower grade, therefore, on their promotion on one and the same day, they have rightly been assigned seniority over the appellant, and there is no illegality.
Consequently, the appeal merits no consideration and is accordingly dismissed with costs. "
7. The appellant assailed aforesaid judgment of the Tribunal by way of Civil Petition No. 173 of 1995 before this Court and leave to appeal was granted on 11-7-1995. Relevant portion of the leave granting Order is reproduced hereunder for ready reference:- "Learned counsel appearing for the petitioner has submitted that the post of A.S.O. Against which the petitioner was initially appointed was quite distinct from the posts of Senior Technician held by the respondents. Qualifications prescribed for these posts were also different and so were their functions and duties. Petitioner and the respondents, it is contended, did not belong to the 'related discipline'. Respondents not having M.Sc. Degree, it is argued, could not be re-- designated as A.S. Os. Nor were they eligible for promotion as Scientific Officers. They could not, therefore, be placed senior to the petitioner. Learned counsel for the petitioner also sought to disown the statement made before the Service Tribunal conceding the seniority of respondent No. 5. On our query, learned counsel appearing for the respondents has quite fairly conceded that the Rules referred to in the impugned judgment of the Service Tribunal bad not been framed/approved and were not in force when the respondents were promoted as Scientific Officers in BS-17. That being so, the contention raised by the learned counsel for the petitioner that the respondents were not eligible for promotion as Scientific Officers in BS-17 and consequently, they could not compete with the petitioner in the matter of seniority, inter, alia, needs consideration. Leave to appeal is, therefore, granted but only qua respondents Nos. 6 and 7. Petition as against respondent No. 5 stands dismissed as the petitioner had not pressed her appeal against him before the Service Tribunal. "
8. Mr. Bashir Ahmad Ansari, Advocate Supreme Court for the appellant, emphatically urged that appellant was initially appointed as A.S.O. (Chemists in B-16 on 21-8-1982. The qualification for appointment as A.S.O. Were much higher than the Technician or Laboratory Technician, working in B-15 or B-16.
He argued that respondents by virtue of their functions and duties having been working as supporting officials to appellant and other superior officers in the department. With intentions to establish that status of A.S.O. Was higher attention was drawn to Notification No.It-018/I(Establishment)/86, dated 17th February, 1986, whereby Lab. Technicians who had qualified M.Sc. Could be prospectively redesignated as A.S.O. Learned counsel additionally contended that Civil Servants (Amendment) Ordinance III of 1984 introduced an amendment in section 8 of Civil Servants Act. 1973.
Whereby seniority was to be regulated by the ~ post' and not the 'grade', therefore, 'Technician' of Senior Technicians' holding quite distinct post from A.S.O. And performing different duties could not be placed on the same pedestal merely on account of equality in ' grade' . According to him functions performed by appellant were supervisory relatable to research work, and respondents primarily belonged to the category of helping staff and supporting officials. To; supplement his submissions reliance was placed on the case reported and PLD 1981 SC 514 and PLD 1968 AJK 64.
9. Mr. Muhammad Munir Paracha, Advocate Supreme Court, appearing for the official respondent vehemently opposed the appeal. It was emphatically contended that 'post' of S.O. Under the Rules was to be filled by promotion amongst A.S.O. And Laboratory Technicians working in B-16 with five years experience. Therefore, date of promotion being the same their inter se seniority had to be reckoned from their respective position in previous grade. He maintained that department has rightly fixed seniority of appellant and respondents on the basis of existing rules and objection being raised by appellant apart from being highly belated has no substance.
10. Shah Abdur Rashid, Advocate Supreme Court appearing for private respondents argued that appeal had been filed before the 'Tribunal' after lapse of several years from promotion of respondents in B-17. According to him appellant despite knowledge had not challenged the promotion of respondents within prescribed period, therefore, she cannot subsequently raise objection regarding their seniority. Reliance was placed on observations in case 1994 SCM R 415 and 1981 SCM R 673. He further argued, that if rules for fixation of seniority do not exist in any particular department then normal practice for regulating seniority becomes applicable.
11. It is an admitted position that appellant joined as A.S. O. (Chemist) in B-16 on 21-8-1982 whereas respondent No.5 Muhammad Saeed joined service as Technician in (B-15) and later became Laboratory Technician (B-16) on 12-4- 1982. Respondent No.6 Sagheer Hussain Malik was initially appointed as Laboratory Technician (B-16) on 19-8-1982.
Effort was made, to explain higher status as regard post of A.S.C. And its distinguishing feature from Laboratory Technician, irrespective of there existing 'grade'. Emphasis was placed on the factum of Laboratory Technician being supporting official to A.S.O., S.O. And all other category of senior officers directly associated with research work.
There is no doubt that qualification for appointment of A.S.O. Are higher than Laboratory Technician on the basis of rules placed on record by the parties. However, official respondents have categorically refuted any distinction between nature of work performed by A.S.O. (Chemist) and Laboratory Technician (Chemist). It is specifically asserted that both enjoy equal status in their respective disciplines and are placed in B-16 having common channel of promotion subject to conditions and eligibility specified under Hydrocarbon Development Institute of Pakistan (Recruitment and Promotion) Rules amended upto-date.
12. On the background of above circumstances learned counsel for appellant took pains to suggest that respondents Nos.5 and 6 did not possesses M.Sc. Degree till the the of their promotion, therefore, they were neither eligible or redesignated as A.S.O., nor could be lawfully promoted as S.O. Therefore, to resolve the controversy and inter se seniority it would be appropriate to refer relevant Service Rules concerning recruitment, promotion, and fixation of seniority. Record suggests that HDIP employee Service Rule 1987 were approved in exercise of power under section 5(d) of Ministry of Petroleum and Natural Resources Resolution No.DP-20(11)/82, dated 26-7-1984. The designation of Basic Scales, under the Rules was to be sanctioned by HIDP Board of Governors. Chapter III of said Rules deal with appointment, probation, confirmation, seniority and promotion. It appears that rules were subsequently -amended in 1993. Articles 13 (Seniority) and 14 (Promotion) of amended rules are reproduced below:- "13. Seniority---(1) The Institute shall cause a seniority list of all the employees to be prepared and circulated every year.
(2)Seniority on initial appointment to a cadre shall be determined from the date of regular appointment in that Cadre.
If to or more persons are selected in one batch. Their inter se seniority shall be determined in the order of merit assigned by the Departmental Selection Committee.
(3)Seniority in a Grade to which an Employee is promoted shall take effect from the date of regular appointment in that Grade, provided that the Employees who are selected for promotion to a higher Gracie in one batch shall, on their promotion, retain their inter se seniority as in the lower grade.
(4)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.
14.Promotion---(1) An Employee possessing such minimum qualifications as specified in the HDIP Recruitment and Promotion Rules, 1993, shall be eligible for promotion to a post reserved for departmental promotion in the higher Grade of the Cadre to which he belongs, provided that his eligibility will not confer any right on him for promotion.
(2)A post referred to in Rule 14, sub-rule (1) above may either be a selection post or a non-selection post as specified in HDIP Recruitment and Promotion Rules, 1993. In the case of a selection post, the promotion shall be made by selection of merit and in the case on non- selection post, the promotion shall be made on the basis of seniority-- cum-fitness, in accordance with the procedure prescribed in the Promotion Policy of the Federal Government."
To avoid confusion and for proper comparison Articles 14 and 15 of Service Rules, 1987, pertaining to Seniority and Promotion are also reproduced below:-- "
14. Seniority--(1) The appointing authority shall cause a cadre-wise seniority list of all the employees to be prepared separately, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such cadre.
(2)The seniority of an employee in Grade-16 and above and other centralised cadres in Grade-15 and below, as may be specified by the HDIP from the to the, shall be. Reckoned in relation to other employees belonging to a same cadre; whether serving in the Head Office or in any of the Establishment of HDIP as may be prescribed by the Federal Government for its employees.
(3)Seniority on initial appointment to a cadre shall be determined in the manner prescribed in the relevant rules applicable to the civil servants of the Federal Government.
(4) Seniority in a cadre to which an employee is promoted shall take effect from the date of regular appointment to a post in that cadre: .
Provided that the employees who are selected for promotion to a higher grade in one batch shall, on their promotion to higher grade, retain their inter se seniority as in the lower grade.
15. Promotion.--(1) An employee, possessing such standards as may be specified by the HDIP from the to the, shall be eligible for promotion to a post reserved for departmental promotion in the higher grade of the cadre to which he belongs.
(2) A post referred to in sub-rule (1) may either be a selection post or a non-selection post to which promotion shall be made:
(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-cum-- fitness.
(3) The competent authority may, for reasons to be recorded in writing, relax, in special cases, such of the conditions of promotion as it may deem fit. "
13. Main thrust of arguments addressed by the learned counsel for appellant revolves around status of the 'post' held by appellant in the capacity A.S.O (Chemist). It is greatly emphasised that respondents in performance of their functions and duties has been placed in subordinate position than appellant irrespective of equality in grade, therefore, on promotion she would normally be entitled to preferential position and senior in rank than respondents. To supplement these contentions it was stressed that amendment introduced in section 8 of Civil Servants Act, 1973, by deleting word 'grade' and inserting 'post' for reckoning seniority.
14. It may be seen that undisputedly the petitioner and private respondents were placed in Grade B-16 at the the of their promotion as Chemist (B-17). Rules unimbiguously disclose that seniority list of A.S.O., Senior Laboratory Technician/Laboratory Technician and Scientific Assistant was common and throughout jointly prepared, wherein appellant admittedly rank junior to respondents in grade ' B-16' . There is hardly any substantial material on record whereby A.S.O. Could be termed higher in status than post held by respondents. It is matter of fact that since year 1982 till date of their promotion viz. 1-11-1987, appellant and contesting respondents have been continuously performing their duties and function as officer in Grade B-16. There did not exist any ostensible distinction between status of the 'post' held by either of the party except its nomenclature. Additionally channel of promotion under the! Service Rules clearly indicates that A.S.O., Laboratory Technician and Senior, Scientific Assistant (B-16) with specified experience are eligible for promotion as S.0. (Chemist B-17). Unreported judgment in case of Federation of Pakistan v. Manzoor Hussain and others (C.A. No.54 of 1991) decided by this Court on 17-11-1992 wherein question arose with regard to date for fixing seniority concerning officers who though promoted to Grade-20 on 27-4-1979, yet joined Secretariat Group on 20-12-1981. The department had reckoned their seniority from date of actual induction into Secretariat Group.
However, Federal Service Tribunal accepted the appeal and directed to determine their seniority from 27th April, 1979, the date when they were actually promoted to Grade-20. The stand taken by the Federation of Pakistan, that on account of amendment introduced through Ordinance III of 1984, dated 22-1-1984 in section 8(4) of Civil. Servants Act, 1973, regulating seniority from the date of regular appointment to the ' post' and not when incumbents were promoted in the higher grade, was repelled because abovereferred amendment was subsequent to the crucial date. With respect it is observed, that principle enunciated in aforequoted judgment has absolutely no applicability to legal or factual aspects involved in the present appeal. Besides, reference to case of Muhammad Yousaf Chohan v. Sarfaraz Khan Jadoon (PLD 1991 SC 514) is equally in-at.
15. Bare perusal of departmental' "service rules regarding seniority and promotion (supra) clearly indicate that determining factor for ascertaining inter se seniority on promotion to higher grade when made on the same day or in the batch shall be relatable to their respective seniority, existing in the lower grade. There is no doubt that educational qualification for initial appointment of A.S.O. (Chemist) is higher than that of Laboratory Technician and Scientific Assistant. Nevertheless, under the Service Rules both have been placed in the same 'grade' despite apparent distinction of duties in respective disciplines. However, irrespective of said distinctive functions the channel of promotion to higher post of S.O. (Chemist) is common. It may be a hardship case where authorities may consider modification in the rules. But looking to the rules presently applicable to the parties we feel satisfied that conclusions drawn in the impugned judgment by Federal Service Tribunal are well-reasoned, and do not appear to be suffering from legal infirmity, therefore, not open to any exception.
For the above discussions we do not find substance in the petition, which is accordingly dismissed. Parties are, however, left to bear their own costs.