' SAIDUZZAMAN SIDDIQUI, J.---The abovementioned two civil appeals arise out of the order of N.- W.F.P. Service Tribunal, Peshawar (hereinafter to be called as 'the Tribunal' only)' dated 29-11-1995.
The appellants in the above appeals were respondents in the service appeal filed before the Tribunal by respondent Muhammad Fasihuddin Khan (respondent No,1 in Civil Appeal No,1791/96 and respondent No,16 in Civil Appeal No,1790/96). For the sake of convenience and to avoid any confusion, we will refer in this judgment Muhammad Fasihuddin Khan as 'the respondent' only. The respondent claimed seniority over the appellants in the grade of Superintending Engineer (S.E.) on the ground that he was senior to them as XEN. The learned Tribunal found that by virtue of the provisions contained in Explanation II to Rule 17 of N.W.F.-P. Government Servants (Appointment, Promotion and Transfer) Rules 1989, the claim of Muhammad Fasihuddin Khan was justified and accordingly, he was declared senior to appellants as S.E. Leave was granted in the above appeals by this Court against the order of learned Tribunal to consider the following contentions:-- "
5. The learned counsel for the petitioners contended before us that the respondent could not be declared senior to them as he was dismissed under the orders of Martial Law Authorities and his reinstatement in service was not in consequence of his acquittal in the case but on account of pardon granted by the Martial Law Authorities which could not be equated with a clean acquittal. It is further contended by the petitioners in the above petitions that the conditions attached to the reinstatement in service clearly debarred him from claiming any seniority as against those who were promoted while he was out of service on account of dismissal from service. The learned counsel in support of his contention has relied on the case of Government of Pakistan v. Junejo Muhammad Iqbal (PLD 1987 SC 427). The learned counsel for the caveator opposed the grant of leave in the above cases and contended that the case relied upon by the petitioners is distinguishable inasmuch as the reinstatement of respondent in the above-cited case had taken place under the provisions of Martial Law Order while in the present case reinstatement has been made under the provisions of N.-W.F.P, Civil Servants Act, 1973. It is also contended by the caveator that in so far Petition No,87-P of 1996 is concerned, it is barred by time by 62 days.
6. The contention of the petitioners that in view of the decision of this Court in the case of Government of Pakistan v. Junejo Muhammad Iqbal (supra), the respondent on promotion could not claim seniority over those who were junior to him but promoted during the period he was out of service on account of his dismissal, required further examination and we, accordingly, grant leave to appeal. However, question of limitation involved in Civil Petition No,87-P of 1996 will be open to be raised by the respondents at the time of hearing of the appeal."
2. We have heard the learned counsel for the parties at length. The respondent while posted as Executive Engineer at Mansehra, was dismissed from service by the Governor/Martial Law Administrator, Zone 'B' with effect from 21-8-1982. It appears that on a representation made by the respondent, the Martial Law Administrator, Zone 'B' ordered his reinstatement in service with effect from 28-12-1985 on the following condition:-- "(i) They shall not be entitled to any benefit of service for the period intervening between their removal and assuming the charge of their duties;
(ii) The amount of fine already realised shall stand forfeited and shall not be refunded; and
(iii) The intervening period of the Officers/Officials shall be treated as extraordinary leave without pay."
3. The appellants in the above cases were promoted as S.E. On 6-4-1985, before the reinstatement of respondent in service, on regular basis. The respondent was also promoted as S.E. On 26-10-1992.
In the seniority list of S.Es. Notified by the department on 31-7-1993, the names of the appellants appeared at Serial Nos.5 and 8 respectively while the name of respondent was shown at Serial No,16 of that list.
4. The respondent in his service appeal before the learned Tribunal contended that he was senior to appellants as XEN, and therefore, on being promoted as S.E., he was entitled to regain his seniority over the appellants as it stood in the grade of XEN. This argument was accepted by the learned Tribunal and consequently respondent was declared senior to appellants as S.E.
5. The learned counsel for the appellants contended that the appellants were promoted as S.E.
When the respondent was out of service, and therefore, he could not claim seniority over the appellants. It is further contended by the learned counsel for the appellants that the reinstatement of respondent in service was not the result of exoneration from the charges against him. In fact he was granted pardon by the Martial Law Authorities and his reinstatement in service was subject to the conditions mentioned earlier in this judgment. Therefore, for this reason also the respondent could not claim seniority over the appellants in the grade of S.E.
6. Mr. Abid Hasan Minto, the learned counsel for the respondent, on the other hand argued, that on being reinstated in service, the competent Authority treated the intervening period, when respondent was out of service, as leave without pay, thus restoring the respondent in his original position in service. The learned counsel, accordingly, contended that the respondent was, therefore, entitled to his original seniority position which he enjoyed in the grade of XEN, over his junior, in the grade of S.E. Also although he was promoted as S.E. After the appellants were promoted.
7. The conditions attached to the reinstatement of respondent in service clearly show that his reinstatement was not the result of exoneration from the charges. In fact, the fine imposed on the respondent was forfeited and he was declared disentitled to claim any benefit of service for the period intervening between his removal and reinstatement in service. In these circumstances, mere treatment of the intervening period as extraordinary leave without pay could not override condition No,1 of his reinstatement which debarred him from claiming any benefit of service for the period intervening between his removal from service and reinstatement. The learned counsel for the respondent admits before us that the respondent did not challenge the above conditions imposed at the time of his reinstatement in service. In the presence of the conditions attached to his reinstatement in service, we are of the view, that the respondent could not claim seniority over the appellants. The learned counsel for the respondent contended before us that the case of Government of Pakistan v. Junejo Muhammad Iqbal (PLD 1987 SC 427), referred in the leave granting order, is distinguishable as in that case the reinstatement in service of the employees who were retired under M.L.R.114, was regulated under a policy decision contained in the memo. Issued by the authorities in that behalf. No doubt in the above-referred case the Government issued a policy directive which regulated the reinstatement in service of the employees who were retired under M.L.R.
114. However, during the course of discussion in that case, a similar contention as is raised before us was repelled as follows:-- "9. The main statute laying down the terms and conditions of the civil servants of the Federation is the Civil Servants Act (No,LXXI of 1973). Section 8 of the Act deals with seniority ' It reads as follows:--
(1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade 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, cadre or grade, whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: ' Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
' As provided by subsection (2) the inter se seniority of civil servants belonging to the same service, cadre or grade is to be governed in the manner which may be prescribed by the competent Authority. Subsection (1) casts a duty upon the appointing authority to prepare a seniority list in respect of the members of the same service, cadre or grade but it also states that a civil servant will not have any vested right to a particular position in the seniority list. Subsection (3) relates to determination of seniority on initial appointment (wrongly printed as 'reinstatement') and subsection (4) which is relevant to these appeals deals with the principle in this regard: the principle is that the seniority in the grade to which a civil servant is promoted shall take effect from the date of his regular appointment to a post in that grade. This principle is subject to a qualification mentioned in the proviso to subsection (4). This qualification is to the effect that civil servants selected for promotion to a higher grade in one batch would, on promotion to the higher grade, retain their inter se seniority of the lower grade.
10. It is common ground between the parties that on reinstatement the respondents were, in the seniority lists relative to them, assigned the same positions which they had occupied in the grade to which they belonged at the time of their retirement. On this score they have no complaint. What they seek is that on promotion to the next grade they should be given seniority over those who were junior to them at the time of the retirement but were promoted while they were out of service.
Now, as laid down in section 8 ibid., seniority is not a vested right and seniority in the higher grade is to take effect from the date of regular appointment to a post in that grade. Since the officers who were junior to them at the-time of their retirements were promoted on regular basis on dates which are anterior in point of time to the dates of regular promotions of the respondents the latter cannot claim seniority over the former. Subsection (4), ibid, would be a bar against such a claim.
The argument that since they were retired from service without any fault on their part and without any reason they should be deemed to have been promoted from the dates when officers junior to them or belonging to their batch were actually promoted, is attractive but it comes in conflict with the basic principle laid down in section 8. It was of course open to the Government to promote the respondents from back dates but it has elected not to do so. It was a policy decision on the part of the Government as it affected a large number of civil servants similarly placed as the respondents.
It cannot be overriden by creating a legal fiction as the learned Tribunal seems to have done by declaring that the respondents should be deemed to have been promoted from the dates when officers junior to them or belonging to their batch were actually promoted or when they became eligible for promotion.
11. An attempt was made on behalf of the respondents to bring their case under the proviso to section 8(4) reproduced above but then this proviso is in terms inapplicable to them as they were not selected for promotion in one batch alongwith the officers junior to them. The respondents also relied upon Annexure-I of the Office Memorandum No,1/16/69-D-II, dated 31st December, 1970 issued by the Establishment Division. This Annexure prescribes the general principles of seniority.
Paragraph B of the Annexure deals with departmental promotions. It reads as follows:-- "(i) Officers who are approved by the Selection Board/D.P.C. For promotion to the higher grade on 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/D.P.C. Are asked to recommend mom than one person and the recommendation of the Selection Board/D.P.C. Is held up in papers etc., or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board/D.P.C. 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; ' Learned counsel for the respondents pointed out that the Government had since regularized the period intervening between their retirement and reinstatement and as such they were to be treated on the footing as if they had never been out of service. Thus, it was argued, for purposes of paragraph B, ibid, they must be regarded as still in service on the day when officers junior to them were promoted to the higher grade. Since at that time they were not considered for promotion their cases fell under clause (i)(a), ibid.; consequently, they were entitled to regain their original seniority when, after reinstatement, they too were promoted to the next higher grade. It is difficult to accept this contention unless the word 'inadvertently' occurring in this clause is given a laboured interpratation. The non-promotion of the respondents was not on account of any inadvertent omission on the part of the Government but was due to the fact that they were not in service actually on the day when promotions of officers junior to them or belonging to their batches took place."
8. It is an admitted position in the cases before us that the appellants were promoted at the time when the respondent was out of service on account of his dismissal from service. It is also not disputed that reinstatement of the respondent in service was subject to the conditions mentioned earlier by us in this judgment. It is also not denied that the appellants were promoted in the next higher grade of S.E. On regular basis. In these circumstances, the respondent could not claim senority over the appellants and the observation made by this Court in the case of Government of Pakistan v. Junejo Muhammad Iqbal (supra) applied to the present case. We will now take up the question of limitation arising in Civil Appeal No, 1791 of 1996.
9. Civil Appeal No, 1791 of 1996 is time-barred by 62 days and at the time of granting leave this question was left to be argued at the hearing of the appeal. The appellant has filed an application for condonation of delay in the case in which it is stated that the appeal filed by the respondent before the Tribunal was dismissed for default of appearance on 21-12-1994. It is further stated in the application for condonation of delay that the appellant was never served with any notice by the learned Tribunal when the application for restoration of appeal was filed. The appellant has also stated in his application for condonation of delay that he came to know of the restoration of the appeal filed by the respondent before the learned Tribunal and the adverse order passed therein only when he received a notice from the Advocate-on-Record engaged in Civil Appeal No, 1790 of 1996 intimating the appellant that a petition for leave to appeal has been filed against the decision of learned Tribunal. The above statement made by the appellant has not been controverted before us and in our view sufficient reasons have been given by the appellant for condonation of delay in filing the appeal. The delay in filing the appeal is, accordingly, condoned.
' As a result of the above discussion, both the above appeals are allowed, the order of the Service Tribunal is set aside and the seniority as notified by the department on 31-7-1993 is maintained.
There will, however, be no order as to costs.