SAIDUZZAMAN SIDDIQUI, J.--We propose to dispose of the abovementioned to appeals by a common judgment as the leave granting order in both the cases is the same.
2. The appellant in Civil Appeal No.128 of 1993 was appointed as Section Officer (BPS-17) on acting charge basis in the Cabinet Division with effect from 7-3-1985, through Federal Public Service Commission (F.P.S.C.). His service was regularised on 14-11-1988. Private respondents 3 to 9 in this appeal were posted as Section Officers (BPS-17) in Office Management Group (O.M.G.) on deputation from different departments during the period from 2-8-1976 to 10-11-1985. Respondents 3 to 9 were finally absorbed in O.M.G. Through transfer of their services with effect from 18-2-1989. In the gradation list issued by the Establishment Division on 10-7-1990, respondents 3 to 9 were shown senior to appellant. The appellant, therefore, submitted representation against the gradation list which was rejected on 27-1-1991. Having failed to get redress from departmental authorities, the appellant approached the Federal Service Tribunal and filed service appeal which to was dismissed on 4-5-1992.
3. The appellant on Civil Appeal No.5 of 1994 was also appointed through F.P.S.C. In O.M.G. As Section Officer (BPS-17) on acting charge basis on 12-11-1986 and his service was regularised with effect from 31-12-1989. Respondents Nos.2 to 31 in this appeal were sent on deputation from different departments as Section Officers (BPS-17) between the period from 15-3-1979 to 20-3-1988.
These respondents were finally absorbed. In O.M.G. As Section Officers on 26-5-1990 and 6-5-1991, through notification transferring their services to O.M.G. The appellant and respondents 2 to 31 were later promoted in BPS-18 vide Notification dated 11-5-1991. In the gradation list issued by the Establishment Division respondents 2 to 31 were placed senior to appellant. The appellant filed departmental representation against the gradation list but he was informed that his request will be considered after the decision of Service Tribunal in some appeals which were pending before the Tribunal at the the. The appellant, accordingly, filed service appeal before the Tribunal praying that he may be declared senior to respondents 2 to 31 both in BPS-17 and BPS-18. The Service Tribunal, however, rejected the appeal of the appellant by order dated 11-7-1993.
4. Leave was granted in the above appeals to consider, whether the private respondents in the above appeals who were initially appointed as Section Officers (BPS-17) in O.M.G. On deputation from other departments and were absorbed subsequently by transfer of their services to O.M.G., were entitled to claim seniority from the date of their joining as Section Officer on deputation or from the date of their regular appointment/absorption in O.M.G. As Section Officers.
5. The learned Tribunal in both the appeals held that private respondents in the above appeals were entitled to seniority from the date of their joining the O.M.G. In the Federal Secretariat, on deputation, which was earlier to the date of regularisation of the appointments of appellants as Section Officer (BPS-17). In arriving at the above conclusion the learned Tribunal relied on the decision of this Court in the case of Fazle Qadir v. Secretary, Establishment Division PLD 1989 SC 131, Rule 9-A of O.M.G. Rules appearing at page 1063 of ESTACODE (1988 Edition). The learned Tribunal also referred to the principles stated in the Forewords' of the Gradation List of O.M.G. Officers issued in 1987 and its to earlier decisions in Appeal No.68(R)/89 and Appeal No.350(R)/90 in support of its conclusion. We have heard the learned counsel for appellant in Civil Appeal No.128/93, the appellant in Civil Appeal No.5/94, Respondents 8, 25, 26 and 28 in Civil Appeal No.128/93 and respondents Nos.24, 25 and 30 in Civil Appeal No.5/94 and the learned Deputy Attorney-General in the above appeals.
6. The main contention of the appellants in the above cases is that the private respondents, in these appeals having been appointed on deputation in O.M.G. Were not entitled to claim seniority from the date of their deputation as during the period of their deputation they remained and continued to be the member of the service/cadre from where they were sent on deputation. It is contended that these deputationist became the members of O.M.G. From the date their services were transferred/regularised as Section Officer (BPS-17) in O.M.G. It is, accordingly, contended that they could not claim seniority in O.M.G. Prior to the date of their transfer to O.M.G. The appellants in support of their above contention have relied on an unreported decision of this Court in Civil Appeals Nos.361, 362 and 363 of 1990 (M. Afzal Khokhar and others v. Azmat Ali Afridi and others), decided on 31-8-1992.
7. The learned Deputy Attorney-General and the private respondents in the above appeals on the other hand contended that in view of the law laid down by this Court in the case of Muhammad Zafar Khan v. Secretary, Establishment Division 1995 SCM R 1840, the respondents were rightly granted seniority as Section Officer from the date of their deputation in O.M.G. The respondents have also placed reliance on the following reported and unreported decisions of this Court in support of their contentions:--
(i) Federation of Pakistan v. Miss Mehr Jamal (C.A.1340/90, decided on 22-6-1991);
(ii) Federation of Pakistan v. Manzoor Hussain and others (C.A. 54/91, decided on 11-11-1992); and (i.e) Sher Ali Beg and another v. Secretary, Establishment Division PLD 1991 SC 143.
Before considering the respective contentions of the parties in the above cases, it will be appropriate to examine first the statutory provisions relating to preparation of seniority list of civil servants and the manner of appointment against a post. Section 5 of the Civil Servants Act, 1973 (hereinafter to be called as 'the Act' only provides for appointment to All --Pakistan Service or a Civil Service of the Federation or to a Civil post connected with the affairs of Federation including a civil post connected with defence, in accordance with the rules. Rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules 1973, (hereinafter to be called as 'the rules' only) provides that appointment to a post can be made either by promotion or transfer or by initial recruitment. The details of the procedure for appointment through promotion and transfer is contained in Rules 7 to 9 while the method of initial appointment is dealt with in Rules 10 to l7 of the Rules.
7. The preparation of seniority list of civil servants is dealt with under section 8 of the Act which reads 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 the 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 provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to 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 that post: Provided that civil servants who are selected for promotion to a higher post in one batch on their promotion to the higher post in one batch, on their promotion to the higher post, retain their inter se seniority as in the lower post."
8. It may be mentioned here that through Ordinance No. III of 1984 ,published in the Gazette on 22- 1-1984, the word 'post' in place of 'grade', .In subsection (1); the words "service or cadre" in place of "service, cadre or grade" in subsection (2) and word "Cadre" in place of "Grade" in subsection (3) of section 8 were substituted. Similarly in place of subsection (4) of section 8, the following new subsection (4) was substituted with effect from 1-7-1983:-- "(4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regul4r appointment to that 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."
Therefore, it appears that prior to the amendments in section 8 of the Act through Ordinance III of 1984, the seniority list of civil servants was prepared on the basis of such civil servants being member of a service, cadre or grade. However, after the amendment of 1983, the concept of preparation of seniority list of civil servants on the basis of being in a particular grade was done away with. Subsections (3) and (4) of section 8 of the Act, which respectively deal with the determination of seniority inter se of direct recruits, and seniority between the promotees inter se are not attracted in the present cases. The present cases are governed under section 8(2) of the Act which deals with determination of seniority of a civil servant in relation to other civil servants belonging to the same service or cadre. The question which, therefore, immediately arises for consideration in the cases is, whether the appellants and the private respondents belonged to the same service or cadre. To answer this question, it is necessary to examine the status of a deputationist in the office where he is working on deputation. The word 'deputation' or deputationist' are not defined in 'the Act' or in 'the Rules'. However, at page 334, Serial No.29, of ESTACODE (1989 Edition), ' the following interpretation of the word 'deputation' is given:-- "Hitherto the term 'deputation' has not been formally defined. However, according to the practice in vogue a Government servant begins to be regarded as a 'deputationist' when he is appointed or transferred, through the process of selection, to a post in -a department or service altogether different from the one to which he permanently belongs, he continues to be placed in this category so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post."
The above definition of the word 'deputation' came up for consideration before this Court in the case of Province of Punjab v. Ikramul Haq 1986 SCM R 1994. In that case, the respondent who was a permanent employee of Punjab Government and had lien against a post, was selected in the Foreign Affaris Group, Government of Pakistan through Lateral Entry Competitive Examination. He was, however, not confirmed against any post in the Foreign Affairs Group. He was compulsorily retired from service by the President of Pakistan in exercise of the powers conferred by section 13(ii) of the Act. He challenged his retirement before Federal Service Tribunal but his appeal was dismissed as not maintainable on the ground that being a deputationist from Provincial Government, he was not covered by the definition of 'civil servant' as given under the Act. He then challenged his retirement before the Punjab Service Tribunal, which allowed the appeal holding that the President was not competent to pass an order for the retirement of respondent who was a deputationist. The Province of Punjab challenged the decision of Punjab Service Tribunal before this Court which failed. During the course of discussion in the above case, this Court approved the interpretation of the word 'deputation' reproduced above in these words:-- "The Federal Service Tribunal has referred to the Establishment Manual, Volume I, Chapter IX, to demonstrate that the departmental authorities in accordance with the practice in vogue have defined a ' deputatiohist' to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post in an officiating or a temporary capacity bit ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The departmental interpretation referred to by the said Tribunal as having the effect of statutory rule has still being retained, as is evident from the ESTACODE (1983 Edition) in Chapter III, Part II at page 217. This Court has also accepted the aforesaid definition of the term 'deputation' in Islamic Republic of Pakistan v.
Israrul Haq and others PLD 1981 SC 531."
9. At page 335 of the ESTACODE,_ (Edition 1989), Serial No. 30, detailed instructions to regulate cases of transfer of civil servants from one office to another are laid down. The authority for these instructions is stated to be O.M* No.6/15/48-ME, dated 31st March, 1951 read with O.M. No.6/39/57- ME, dated 5-2-1958. These instructions deal not only with the cases of transfer in public interest but also with the cases of civil servants working on deputation. These instructions do not come in conflict with any of the provisions of the Act and, therefore, shall be deemed to be rules made under the Act by virtue of the provisions of section 25(2) of the Act. These instructions read as follows:-- "Sl. No.30. Instructions to regulate cases from one office to another.--The following instructions are issued .To regulate cases of transfers from one office to another of the ministerial staff employed in Pakistan Federal Secretariat and its Attached Departments with particular reference to the position of a deputationist in his parent office as well as in the borrowing office.
2. Should temporary transfers to other offices be allowed (i) as a normal course, or (ii) only if considered necessary in the public interest. Transfers should be allowed only in the public interest.
The term 'public interest' is explained in paragraph 4 below.
3. Should a transfer be allowed (i) normally in the same grade, or (ii) only if it involves promotion. It does not appear necessary to lay down any hard and fast rules in this respect, since as stated in paragraph 2 above, transfers will be allowed only, if necessary, in the public interest, and it would, therefore, be immaterial whether a transfer is in the same grade or whether involves promotion.
4. What should be done to ensure that the claims to promotion of those already employed in the borrowing office have been satisfied.--(a) It has been decided that, in fairness to the persons employed in the office in which a vacancy occurs, a person from another office should be appointed only if no person eligible ' and suitable for appointment is available in the office concerned. For this purpose, it should be placed on record by the appointing authority, or the Departmental Promotion Committee concerned, as the case may be, that none of the persons eligible concerned, for appointment from amongst the persons is available in the office. The reasons for declaring the persons employed in the office concerned as unfit for appointment to the post in question should be recorded by the authority concerned.
When a person is appointed by transfer in the circumstances stated above, his transfer should be considered to have been made in the public interest.
(b) When a transfer becomes necessary in the manner referred to above, it should be arranged between the offices concerned without a reference to any outside authority. It tray be pointed out that a transfer should be made only if it is permissible under the relevant rules relating to recruitment to the post or service concerned. In this connection attention is also invited to the Establishment Division Office Memorandum No.54/2/48-Estt. (ME), dated the 21st November, 1949.
(Reproduced at pages 161--165 in Chapter XXII --Recruitment to Ministerial Establishment, Establishment Manual, Vo1.III).
5. The position in his parent office of the person transferred temporarily to another office.--When a transfer has been made in the public interest as explained in paragraph 4 above, the interests of the person concerned should be protected in his parent office until he is confirmed in the borrowing office. For this purpose, when a vacancy occurs in a higher grade in his parent office, the person concerned should be considered therefore, if he is selected for promotion in accordance with the relevant rules he should be appointed formally (and not actually) to the post in the higher grade Similarly, if he was officiating, at the the of his transfer, in a post higher than the one in which he was employed permanently, he should be considered for confirmation in the higher post when his turn comes. This would enable him to occupy on reversion to his parent office, the position which he would have occupied had he not been away on deputation. No financial benefit of the 'next below rule' should, however, be allowed to him in respect of a promotion nor should he be placed in an advantageous position vis-a-vis his colleagues in his parent office, by virtue of his promotion, if any, in the borrowing office. In other words, he should be considered, while on temporary deputation to the other office, as a member of his parent office for the purpose of confirmation, promotion, seniority etc. He should be allowed to revert to his parent office with the agreement of both the lending and the borrowing offices.
6. Seniority on transfer from one office to another.--(i) The instructions in the foregoing paragraphs regulate the position of a deputationist in his parent office. As regards his seniority in the office to which he is transferred it should be determined in the following manner:--
(a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office.
(b) When a person is compulsory transferred to another office as a result of conscription, or alongwith the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in the grade in the new office.
It may be pointed out that separate seniority lists be prepared in respect of (i) persons appointed on a permanent or a quasi--permanent basis; and (ii) persons appointed on a purely temporary basis, and the person obtained by transfer from another office should be assigned his appropriate place, in accordance with the above infructions in the list of the persons to which category he belongs.
(ii) The seniority of a person who went on deputation from one office to another before 31st March, 1951 should be determined in his new office, in accordance with the following instructions:--
(a) In order to get the benefit of continuous service in a grade, a deputationist be permanent in that grade in his parent office, and not merely eligible for being made permanent. In case, however, he is subsequently made permanent in a grade in his parent office from a retrospective date, his seniority should be changeable in the borrowing Ministry/Department, and he should be considered to be permanent on the date of transfer, and given the benefit of his continuous service in the borrowing Ministry/Department in that grade;
(b) A deputationist can get the benefit of his continuous service to a grade in the borrowing Ministry/Department only if he is appointed in the borrowing Ministry against a regular post in accordance with 'the roster prescribed in the Establishment Division Office Memorandum No.54/2/48-Ests. (ME), dated the 21st November, 1949 (Reproduced at pages 161-165 in Chapter XXII, Establishment Manual, Vol.III). If, however, he is appointed in the borrowing Ministry/Department against a temporary post, he will take seniority with effect from the date he is appointed against a regular post, and all persons in the borrowing Ministry who are permanent in that grade, or have been appointed according to the prescribed roster on the date of the deputationist's temporary appointment, will take seniority over him.
7.Transfers as a result of conscription.--The interests of the person transferred compulsorily to another office as a result of conscription should be adequately protected in his parent office as stated in paragraph 5 above. In addition, when his turn for promotion to a higher grade comes in his parent office, he should be appointed to the post actually and be allowed the financial benefit of the 'next below rule'.
8.Transfers alongwith posts.--As regards persons who are transferred to another office alongwith their posts, the question of the protection of their interest in their parent office will not arise, since they will be transferred on a permanent basis and will thus sever their connections with the previous office.
9.Protection of interests of temporary persons.--The above instructions apply to persons who hold permanent posts in their parent offices. As regards persons employed on a temporary basis, there is no question of the protection of their interests in their previous office, since, on transfer to another office, they will automatically cease to be members of their previous office. If, however, an occasion arises in which a temporary person is compulsorily transferred to another office as a result of conscription, the question regarding the protection -of his interests in his original office should be decided in consultation with the Establishment Division.
10.Persons holding excluded posts.--Persons employed against excluded posts' in the Pakistan Federal Secretariat and its attached Departments are not eligible for appointment to posts in the regular cadre, vide Establishment Division Office Memorandum No.54/1/48-Est.(ME), dated the 24th August, 1948 (Reproduced at pages 140-141, in Chapter XXII, Establishment Manual, Vol. III). If a case arises in which a person holding a permanent appointment in the regular cadre is appointed temporarily to a post in the 'excluded cadre', in view of his special or technical qualification, his case should be considered as one of transfer to another office, and should be dealt with in the light of the instructions contained in the foregoing paragraphs.
11These instructions take effect from the date of this Office Memorandum.--It is necessary that, before a transfer is made, the position of the person concerned, both in his parent office and the borrowing office, should be specially determined in the light of these instructions and the decision communicated in writing to the person concerned as well as to the office to which he is transferred.
"
Para. 6 of the above instructions clearly lays down the criteria for determining the seniority of a deputationist in the office where he is sent on deputation. It provides that where it is open to a deputationist to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office. However, where the transfer is compulsory or result of conscription or alongwith the post and his work, he may count his previous continuous service in the grade towards seniority in that grade in the new office. The learned counsel for the private respondents and the learned Deputy Attorney --General jointly contended that the private respondents herein were appointed as Section Officers by way of transfer in public interest under Rule 9-A of O.M.G. Rules, and therefore, they were entitled to count their seniority from the date they were sent on deputation to O.M.G. Rule 9-A which was added through Establishment Division O.M. No.7/12/81-C III.B/(O.M.G.--II), dated 4-11-1985 in the existing rules constituting the O.M.G., reads as follows:-- "9-A. (a) Appointment by transfer.--Civil servants belonging to other occupational groups, services, cadres and the Provincial Governments, including those serving in the Federal Government on deputation basis, may be appointed as Section Officer in the Federal Government, in public interest, on the recommendation of the Departmental Promotion Committee, and with the approval of the competent Authority. The consent of the Ministry/Division/Provincial Government and the officer concerned will be obtained before making such appointments."
10. There appears to be no conflict between Rule 9-A quoted above and the Rules printed at page 335 of ESTACODE under Serial No.30 relating to regulation of transfer of Government servants from one office to another, reproduced in extenso in earlier part of this judgment. In our view, therefore, the moot question for determination in these cases is, whether the respondents who were deputationist in O.M.G. Had the right to accept or refuse the offer of appointment as Section Officer in O.M.G. It cannot be disputed that a deputationist continues to remain a member of his parent service or cadre unless absorbed permanently in the service or cadre where he is sent on deputation. The appointment of respondents, who were admittedly deputationist, as Section Officers to O.M.G. Under Rule 9-A referred to above in public interest, was subject to recommendation of Departmental Promotion Committee, consent of the Ministry/Division/Provincial Government and the officer concerned, with the approval of competent Authority. The learned Deputy Attorney-General admitted before us that before induction of respondents as Section Officers in O.M.G., the consent of concerned officers and their parent offices were obtained. The learned Deputy Attorney-General is, however, unable to state whether the respondents while exercising their option to join 0. M.G. Had the right to refuse the option. It may be pointed out here that under section 8(2) of the Act, the seniority of a civil servant is to be reckoned in relation to other civil servants belonging to the same service or cadre and for this purpose it is not necessary that such civil servant should be serving in the same department or office at that the. It is, therefore, necessary for p determining the seniority of as civil servant in a service or cadre that he must be a member of that cadre or service at the relevant the.
11. In Civil Appeals Nos. 361 to 363 of 1990 (Muhammad Afzal Khokhar v. Azmat Ali Afridi), (supra), a similar question was examined by this Court and it was held that a deputationist would claim seniority from the date, he becomes a member of new cadre or service after exercising his option in the new post. Following are the observations of this Court in the above cases: "6. We have heard both the sides and examined the record to evaluate their submissions. The facts are not in dispute. The , respondent exercised his option to serve in Baluchistan on 1-7-1970.
Consequently, he was inducted into the office of the Comptroller, became member of that cadre with effect from that date, passed departmental examination and was granted promotion to S.A.S. With effect from 12-9-1975 when the appellants were still deputationsits. It is correct that their services were initially conscripted; they were sent to Baluchistan against their wishes and they served there as deputationist but subsequently they were given the option either to revert to their parent departments or get themselves absorbed in the Baluchistan cadre. It seems to us that all along they looked back to their parent departments to get promotion and when they lost the hope, they exercised the option late in the year 1976 and got themselves absorbed in Baluchistan cadre.
It is difficult to perceive as to how the appellants could claim seniority without first becoming the member of the new cadre in the office of the Comptroller/Accountant-General, Baluchistan. For induction into the said cadre there were to prerequisites; firstly they had to exercise option; secondly the said option was accepted by the competent Authority. It was only thereafter that they became members of the cadre and could ask for fixation of their seniority. As observed above, they exercised option in the year 1976, for the purposes of fixation of their seniority, their option could not have been back-dated, and the appellants treated as member of the cadre retrospectively to the detriment of those who were already serving in the cadre. It is thus quite clear that the appellants could not claim seniority without their regular absorption in the cadre; they acquired that status in the year 1976 and thus could not be given seniority over the respondent."
12. The learned Deputy Attorney-General and private respondents in the above cases, however, very heavily relied on the decision in Zafar Khan's case (supra), In that case the appellant, who was serving as Assistant Director in BPS-18 in the Directorate-General Inter-Services Intelligence, was transferred by notification dated 23-4-1987 and posted on deputation for a tenure of three years as Section Officer in the Ministry of Industries in his own basic pay scale and was to be reverted to his parent office on expiry of the deputation period. The appellant took charge of the 'office of Section Officer on 7-5-1987 and subsequently was absorbed as Section Officer in the O.M.G. In public interest on 26-5-1990. In the gradation list issued by the Ministry on 9-10-1990, his seniority was reckoned in O.M.G. As Section Officer with effect from 23-4-1987, namely, the date on which he came on deputation in the Ministry. The appellant filed a representation against the seniority list and claimed seniority with effect from 7-12-1983, the date, on which he was promoted to BPS-18 in his parent office. The representation of the appellant was turned down by the departmental authority and so was his appeal before the Federal Service Tribunal. This Court while dismissing the appeal of appellant against the judgment of Federal Service Tribunal observed as follows:-- "8. The admitted position had emerged that the Civil Servants Act requires determination of seniority to the principles laid down by the rules framed under it but no rules have been framed.
Therefore, in the absence of rules applying the principles for determining seniority as discussed above, in our view, reliance can be placed on the O.M quoted above. According to O.M.No.8/17/90- O.M.G.-I, dated 28-1-1991 quoted in para. 2 above, officers in the pay scale on 17 or 18 who had joined Federal Secretariat as Section Officers on deputation and were subsequently appointed by transfer as Section Officers in the same scale in the O.M.G. Were given seniority from the date they joined the Federal Secretariat as Section Officers on deputation. The promotion to Grade-18 in the parent department was not to be taken as the cut of date for purposes of determining the seniority in the O.M.G. The appeal is dismissed."
The question involved in the above case was whether the appellant in that case, who was promoted to BPS-18 earlier to his joining the O.M.G. As Section Officer was entitled to seniority on the basis of his promotion Grade-18 in the parent department and it was in this context that this Court observed that he was entitled to seniority in the O.M.G. From the date he joined the O.M.G.. The case is, therefore, distinguishable on facts. It may be mentioned here that in Muhammad Zafar Khan's case (supra), reference was made to the Establishment Division's O.M. No.8/17/90-O.M.G.-I, dated 28-1-1991 which reads as follows:-- "Officers appointed as Section Officers by transfer in the Office Management Group are assigned seniority in accordance with the following approved principles:--
(i) Officers in Basic Pay Scale 17 or 18 who joined Federal Secretariat as Section Officers initially on deputation and were subsequently appointed by transfer as Section Officer in the same scale in the O.M.G. Have been assigned seniority as Section Officer in Scale 17 or 18, as the case may be, from the date he joined the Federal Secretariat as Section Officer on deputation.
(ii) Officers in Basic Pay Scale 17 who joined Federal Secretariat as Section Officer on deputation in BPS-17 and subsequently promoted to BPS-18 in their parent cadre while on deputation to Federal Secretariat have been assigned seniority on their appointment by transfer as Section Officer i.e BPS-18 from the date on which they were promoted to BPS-18 while on deputation."
In sub-para. (i) of the above O.M., it is stated that the officers in BPS-17 and 18 who joined Federal Secretariat as Section Officer on deputation but were subsequently appointed as Section Officer in the same scale in O.M.G., were to be assigned seniority as Section Officer in Scale No.17 or 18, as the case may be, from the date he joined the Secretariat as Section Officer on deputation. This O.M., however, does not in any way come in conflict with the instructions reproduced earlier in this judgment and which appear on page No.335 of ESTACODE. The respondents have also placed reliance on unreported decisions of this Court in Civil Appeal No.135/90 (Federation of Pakistan v.
Miss Mehr Jamal) and Federation of Pakistan v. Manzoor Hussain and others, decided on 23-6-1992 and 26/27-10-1992 respectively, but both these cases are distinguishable on facts. In the first-noted case of Miss Mehr Jamal, the respondent Miss Mehr Jamal, was serving in an attached department of Ministry of Industries which was subsequently wound up and she was absorbed as Section Officer on 22-8-1984. In the seniority list, she was assigned seniority from the date of her joining the Federal Secretariat. However, the respondent claimed seniority with effect from the date of joining her service in National Development Volunteer Programme (N.D.V.P.). The learned Service Tribunal held her entitled to seniority from the date she joined service in N.D. V.P. As she became civil servant from that date It was noticed by the learned Service Tribunal that in spite of winding-- up of the department where she was appointed, her service was continuous and uninterrupted in that grade. This Court dismissed the appeal against the order of the Federal Service Tribunal after having noticed that the private respondents, who were affected by the order of the Service Tribunal had not filed any appeal, and therefore, the appeal filed by the Government was not accepted. In the second case, Federation of Pakistan v. Manzoor Hussain and others (supra), respondent No. l in that case was an officer of Accounts Group who was promoted to Grade-20 on 27-4-1979. He was later appointed as Joint Secretary in Grade-20 in the Secretariat Group on 12-8-1981. Respondent No.1 made a representation for grant of seniority from the date he was promoted in Grade-20 and not from the date of his appointment to the Secretariat Group. Having failed to receive any reply from the departmental authority he preferred a service appeal before Service Tribunal which was accepted and he was granted seniority in the Secretariat Group from 24-7-1979 when he was promoted to Grade-20. In the appeal before this Court against the judgment of learned Service Tribunal, it was contended on behalf of the Government in the above case that since respondent No.1 had exercised option unconditionally, he was rightly given seniority in the cadre of Joint Secretary from the date of his appointment, namely, 12-8-1981. This contention was repelled by this Court as follows:-- "Section 8(4) of the Civil Servants Act, 1973, provides that 'Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post. This provision was amended by Ordinance III of 1984, gazetted on 22-1-1984. According to section 1(3), it shall come into force at once and shall be deemed to have taken effect with effect from the first day of July, 1983. After the amendment, the word 'grade' was substituted by the word 'post' but as the respondent No. l was already promoted to Grade-20 on 21-7-1979 and transferred to the Secretariat Group on 12-8-1981 this amendment will not affect his rights. We may also refer to Serial No. 19 at page 1096 of the ESTACODE, 1989 paragraph 9 (at page 1098) provides that 'the seniority of a Joint Secretary which is a post in Grade-20 will be determined from the date of his continuous regular officiation in Grade-20'. Therefore, the appointment of respondent No.1 in the Secretariat Group is immaterial. The same principle has been laid down in Serial No.21 at page 1099
(ibid) which lays down that 'the seniority of a Joint Secretary which is a post in Grade-20 will be determined from the date of his continuous regular officiation in Grade-20'. These provisions do not leave any doubt about the fixation of seniority of the respondent No-I. This Court in Muhammad Yusuf Chauhan v. Sarfraz Khan Jadoon PLD 1991 SC 514 has observed that 'the appointment rules as well as the Civil Servants Act provides transfer as one of the modes of appointment to a post. But none of these makes any rules with regard to seniority on such transfer. The only rule in existence is with regard to the seniority in the grade and it commences on regular entry into that grade."
From the abovequoted observations, it is quite clear that firstly, the above case was decided on the basis of the provision of unamended section 8 of the Act, secondly, in deciding the above case this Court took into consideration the principles governing seniority in the cadre of Joint Secretary which applied to that case exclusively. This case, therefore, is not of much assistance in the present cases.
13. Another case relied by the learned counsel for the respondents in support of his contention is reported as Brig. Sher Ali Baz and another v. Secretary, Establishment Division and others PLD 1991 SC 143. In this case, appellant Sher Ali was commissioned in the Army 1948 and promoted to the rank of Brigadier on 7-8-1970. He was seconded to Federal Secretariat as Joint Secretary on 1-9- 1975 and through lateral entry examination he was appointed as Joint Secretary on 9-8-1976. His seniority in the cadre of Joint Secretary was, however, ante-dated on 30-7-1975 when a person junior to him in the lateral entry examination was appointed as Joint Secretary. Brig. Sher Ali and another appellant in that case, namely, Brig. Abdur Rashid claimed seniority in the above case on the basis of services 'rendered by them in Grade-20 as Brigadier in the Army. The contention of appellants in that case was repelled by this Court and it was held that the services rendered by the appellants as Brigadier in the Army which was also in Grade-20, could not be allowed to be counted for the purposes of determining seniority as Joint Secretary in the Secretariat Group. This case also, therefore, has no application to the facts of the present case. The learned Service Tribunal in the impugned judgment has also referred to the case of Fazal-i-Qadir v. Secretary, Establishment Division PLD 1988 SC 131. In this case the vires of O.M. Dated 27-1-1975, appearing at page 1060 of the ESTACODE at Serial No. 11, through which a new occupational group called O.M.G.
Was constituted, were examined and it was held that this memorandum was not in any way in conflict with the provisions of section 8 or any other provision of the Act. The controversy in that case related to the seniority between the promotees and the persons inducted through initial recruitment. On final analysis, it was held that the promotees of same year shall take precedence in the matter of seniority over those joining on initial recruitment in the same year irrespective of their date of promotion or joining. This case also proceeded on different facts.
14. As a result of the above discussion, we were of the view that the private respondents in the above appeals were entitled to get their seniority determined in relation to others in accordance with paragraph 6 of the instructions appearing at page 335 of the ESTACODE (Edition 1989) at Serial No.30. However, as the record before us does not show that whether at the the respondents were asked to exercise their option for absorption or transfer of their services to O.M.G. They had the right to refuse or not the offer, the controversy cannot be decided finally in these appeals. We, accordingly, set aside the orders passed by the Service Tribunal as well as the departmental authority and remand the case to the departmental authority for re-determination of the seniority of appellants qua respondents in the above appeals keeping in view the observations made above and the provisions of paragraph 6 of the instructions printed at page 335 of the ESTACODE (Edition 1989). There will be no order as to costs in the circumstances of the cases.