' MUNAWAR AHMAD MIRZA, J.---This appeal is directed against judgment dated 3rd July, 1993 passed by Federal Service Tribunal, Islamabad in Appeal No,161(R) of 1992.
2. Relevant facts as asserted on behalf of appellant are that Pakistan National Centre was an autonomous body prior to 23rd June, 1979 when it was declared as Government Department under the administrative control of Information and Broadcasting Division enjoying status of attached department. Ministry of Information and Broadcasting through two separate notifications, namely,
(i) No,3(47)/77-AD.I (PB) dated 14th October, 1986 and (ii) S.R.O. No,115(KE) of 1988 dated 25th September, 1988 framed rules applicable to the employees of Pakistan National Centre and subordinate offices. However, Deputy Secretary to Government of Pakistan, Establishment Division, on 9th July, 1987 issued office memorandum No,2/1/86-GP.2., whereby officers of Pakistan National Centre were included/merged in the information group, which is reproduced below:-- "Subject: Inclusion of Officers of Pakistan National Centre in the Information Group.
' The undersigned is directed to refer to Ministry of Information and Broadcasting O.M. No,2(9)86-IG, dated 4th November, 1986, on the subject and to inform that 22 officers may be included from the date of their posts were included in the Information Group i,e, 2-6-1979, as consequent upon inclusion of their posts of the Pakistan National Centre in the Information group, the incumbents of the posts automatically became members of the Group in the same capacity in which they hold these posts. However, such incumbents would retain the same capacity in which held the posts i,e, without changing the nature of their appointment. On their regularization in these posts vide rule 7 of the recruitment rules, they could become regular members of the group from the date they were placed on regular basis or from the date their posts were included in the Information Group, whichever is later.
(Sd.)
(M. Hashim Leghari)
Deputy Secretary to the Government of Pakistan"
3It is the case of appellant that after above inclusion/merger of the officers belonging to Pakistan National Centre into information group of Ministry of Information, combined tentative seniority lists of all the officers were prepared and circulated on 18th May, 1989 and 12 December, 1990. It has been asserted that appellant and twenty-one officers belonging to Pakistan National Centre were regularized by Ministry of Information and Broadcasting, Government of Pakistan, vide Office Memo.
No, 2(9)/86-IG, dated 4th November, 1986. Subsequently, pay scales and details with regard to regularisation were also specified by the Ministry through office order No,3(47)/77-AD.I(Pt)(PNC), dated 3rd June, 1987. At this stage it would be pertinent to mention that while issuing copies of these letters to Establishment Division and Director-General, Pakistan National Centre, Islamabad, at item No, 9, following note was also incorporated:- "9. D.G. PNC, Islamabad. The matter of induction of these officers in the Information Group is under consideration in the Establishment Division/F.P.S.C. The decision in this respect will be implemented accordingly as and when communicated."
4. It appears that respondents were aggrieved from the combined tentative seniority list dated 18th May, 1989 and 12th December, 1990. Respondent No, 4 categorically stated that objections and representations were made to the authorities challenging alleged inclusion/merger of appellant and others in Information Group. Record reflects that a Subcommittee was constituted under Prime Minister Secretariat's directive vide U.O.No, 1813-SO/ME, dated 10th September, 1991 to examine the grievance. Eventually, a detailed report was submitted by the sub-committee towards the end of October, 1991, which was approved by the Prime Minister and following decision was conveyed vide No,1(5)/91-IG, dated 6th November, 1991:-- ' SUBJECT: Report of the sub-committee of the standing organization committee on career planning of information group.
' The Prime Minister has been pleased to approve the recommendations submitted by the sub- committee of the standing inaction committee on career planning of Information Group authorized their immediate implementation. These and emendations inter alia include:
(i) Increase of twenty two posts in the sanctioned strength of the Information Group (BPS-21, two BPS-19, twelve, BPS-18, nine and BPS-17, Minus one), besides 20% of the posts as leave/deputation reserve.
(ii) Pakistan National Centre will remain as an attached Department of the Ministry and its employees would continue in the separate cadre in accordance with Recruitment Rules already framed by the Pakistan National Centre. Pakistan National Centre employees shall neither be posted nor promoted against Information Group posts and will receive their promotion against the Pakistan National Centre's vacancies itself. Pakistan National Centre will however be a dying cadre and all future vacancies for initial recruitment will be filled in by the Information Group Officers.
(iii) Immediate steps are being taken for implementation of the recommendations of the Committee, as approved by the Prime Minister. "
5. Appellant felt aggrieved from said decision and filed Service Appeal No,16l(R) of 1992 before Federal Service Tribunal, Islamabad on 30th March, 1992, praying for following ' It is, therefore, prayed that it be declared:
(1) that the order of the Prime Minister No,1/5/91-IG, dated 6-11-1991 is null and void, passed without lawful authority and is one without any legal effect whatsoever;
(2) that the P.N.C. Continues to be a part and parcel of the Information Group;
(3) that the seniority list issued on 12-12-1990 is made final with the position of all the P.N.C. Officers including the appellant (at No,6) remaining intact.
' It is further prayed that till the decision of this appeal, the promotions to B-19 and above be made from the combined seniority list of 12-12-1990, giving proper benefit to P.N.C. Officers of their seniority, and for that purpose seniority list dated 20-1-1992 of B-18 officers be kept out of reckoning.
' It is still further prayed that a very early decision be given in the matter to avert a fight between the now two cadres of the civil service and to save a whole class of P.N.C. Officers from being ruined or locked up in a long drawn litigation."
6. Private respondents contested the appeal and filed a detailed written statement. Several preliminary objections concerning maintainability of appeal were raised. It was specifically pleaded that appellant was never validly appointed, absorbed or inducted as civil servant either under the provision of Civil Servants Act, 1973 or Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 coupled with Recruitment, Appointment Rules for Information Group, 1988. It was explained that factually final seniority list was issued through Memorandum No,1(1)/92-IG, dated 24th May, 1992 and Notification No,2(16)90-IG, dated 31st August, 1992 showing separate seniority list and promotions of officers relating to Information Group wherein officers/employees of Pakistan National Centre were excluded. It may be pertinent to notice that said list was neither challenged by appellant, nor by any other person belonging to Pakistan National Centre. The validity of alleged letter of merger/inclusion of officers belonging to Pakistan National Centre into 'Information Group' dated 9th July, 1987 has also been challenged. Respondents claim that alleged induction or inclusion of the incumbents by allowing retrospective seniority, which affects their service rights, apart from lacking legislative backing or legal sanction, was otherwise contrary to law and rules.
7. The Tribunal, after detailed consideration of the main controversy, eventually dismissed the appeal vide order dated 3rd July, 1993. On the same grounds Appeal No,162(R) of 1992 and 163(R) of 1993 were also dismissed.
' Operative portion is reproduced below:-- "8 After going through the facts and merits and arguments advanced by the parties, we conclude as under:--
(i) That the appellants only challenged the provisional seniority lists of. 18-5-1989 and 12-12-1990 which they had done without waiting for the final seniority list or final order. This was an incompetent action of theirs, as they did not challenge/represent against the final seniority list issued on 24-5-1992.
(ii) That the appellants did not challenge/represent against the promotion of valid group officers i,e, private respondents against their promotion order issued on 31-8-1992. As such their appeals were misconducted and incompetent.
(iii) That the appellants' induction to the group had not competently been made, as indicated through letter dated 3-6-1987 and 9-7-1987 from the Ministry of Information and Establishment Division.
(iv) That the appellant's could not automatically become members of the Group, until and unless a specific, administrative and competent order was issued in this regard with the approval of the competent authority.
(v) That recommendations of the Sub-Committee of the Standing Organization Committee were valid and P.M. Was competent to approve the recommendations. Accordingly, letter issued on 6- 114991 by the M/o Information was in order.
7 . The appeals are, therefore, misconceived incompetent, without meaningful merit and substance and these are accordingly dismissed. This judgment shall mutatis mutandis apply to other connected Appeals Nos.162(R) of 1992 and 163(R) of 1993."
8. The above judgment was assailed only by appellant M. Khalid Rashid Shahbaz through Civil Petition for Leave to Appeal No,456 of 1993. Leave to appeal was granted vide order dated 4th December, 1993; paragraphs 4, 5 and 6 of said order are reproduced below:-- "4 The petitioner challenged the order of the Prime Minister in appeal before the Federal Service Tribunal, praying: "(1) that the order of the Prime Minister No,1/5/91-IG, dated 6-11-1991 was null and void, passed without lawful authority and was one without any legal effect whatsoever;
(2) that the PNS continued to be a part and parcel of the Information Group;
(3) that the seniority list issued on 12-12-1990 was made final with the position of all the P.N.C.
Officers including the appellant (at No,6) remaining intact."
' By its judgment dated 25-5-1993, the learned Tribunal dismissed the appeal. The petitioner seeks leave to appeal from this Court.
8 In support of this petition it is inter alia contended that the Sub-Committee entirely overlooked the office memorandum No,2/1/86- CP.2, dated 9-7-1987, of the Establishment Division which clearly stated that with the merger of the posts of the Centre in the Information Group the incumbents of the posts in the Centre automatically became members of the Information Group in the same capacity in which they held those posts. Thus, its finding that no merger of the two cadres had taken place was palpably erroneous. As the order of the Prime Minister was based on a factually incorrect report of the Sub-Committee the learned Tribunal should not have hesitated in interfering with it. The contention raised in support of this petition needs examination. Leave to appeal is granted."
9. During pendency of the above appeal, Mr. M. Yousuf Aziz, an officer of Pakistan National Centre, towards 5th September, 1997, submitted an application under Order V, Rule 2(2) read with Order XXXIII, Rule 6, of the Supreme Court Rules, 1980 for implement, which was, however kept for consideration. Similarly, another application of the similar nature was, submitted by Najma Farooqi on 1st October, 1997. M. Yousuf who appeared in the Court on 24th April, 1998, frankly conceded that he became aware of the order passed by the Prime Minister on subject matter of challenge in the present appeal during year 1993, but he did not file representation or service appeal. It is also matter of record that some of the officers belonging to Pakistan National Centre, who had filed Appeals Nos.162(R) of 1992 and 163(R) of 1993 have not challenged the same before this Court and said order against them has already attained finality.
10. Mr. Fazal Ellahi Siddiqi, learned Advocate Supreme Court for appellant, contended that officers/employees of Pakistan National Centre were included and merged into Information Group by conscious decision dated 9th July, 1987 by Establishment Division of the Cabinet Secretariat, Government of Pakistan; that Rules of 1986 and 1988 were framed by the Ministry of Information and Broadcasting through Notifications dated 14th October, 1986 and 25th September, 1988 regulating appointments and transfer of the officers/ employees of Pakistan National Centre, who had been absorbed in the Information Group; that combined tentative seniority list was twice issued, which reflected conscious action of the Government towards amalgamation/merger of the officers belonging to the abovereferred categories; that officers/employees of Pakistan National Centre were placed at the disposal of the Information Ministry and inter se transfers of the members of the Information Group and attached department were effected, but the impugned judgment does not effectively dilate upon the real impact of the above circumstances; and that the Tribunal acted illegally in declining to set aside decision of Prime Minister's Secretariat vide No,1/5/91-IG, dated 6th November, 1991 and in failing to uphold the inclusion/merger of appellant as member of Information Group.
11. Respondent No,4, Ahsan Yusuf Khan, appeared in person and contended that Pakistan National Centre was never statutory body and during all material times was nothing more than a private registered body under Societies Acts, 1912 and 1925 and even the Notification of Establishment Division dated 23rd June, 1993 clearly discloses that Recruitment Rules were required for regulating services of officers appointed on ad hoc basis in Pakistan National Centre; that the Office Memorandum No,2/1/86-CP, dated 9th September, 1987 did not have any legislative backing or sanction and was issued by incompetent authority without adopting prescribed method, therefore, has no legal validity; that rights of the respondents who were regularly appointed as members of Information Group could not be adversely affected by allowing seniority to the incumbents of the non-Governmental post with retrospective effect and decision in this regard, if any, is repugnant to basic rights available to civil servants; and that after passing of the order by Prime Minister's Secretariat on 6th November, 1991, a separate list of respondents, who are members of Information Group, has been issued, which was never challenged by the appellant at any stage of the proceedings.
12. Moulvi Anwarul Hach Deputy Attorney-General, affirming above legal points argued that the tentative seniority list did not create any legal right in favour of either party, therefore, same could not be made basis of claiming any relief. He further contended that there is no specific order by competent authority under any provision of law whereby the services of officers belonging to Pakistan National Centre were validly merged into Information Group, therefore, appellant cannot base his claim on mere casual actions of some of the Government officers who otherwise were not competent in that behalf. Malik Jafar affirmed the above stand and adopted the arguments.
13. We have minutely examined the available record and considered the arguments addressed before us. Firstly, it may be seen that the source of Office Memorandum No,211/86-CP.2, dated 9th July, 1987 regarding inclusion of officers belonging to Pakistan National Centre into Information Group is not disclosed anywhere. Additionally, regularization of officers belonging to Pakistan National Centre was subject to Recruitment Rules.. There is absolutely nothing on record which may indicate that appellant ever went through the process of regularization by adopting prescribed methods. It was for appellant to substantiate that the authority issuing office memorandum had any legislative backing or legal sanctity for directing merger/amalgamation of the officers belonging to two separate and distinct groups. Secondly, it may be seen that the main thrust of arguments rests upon the combined tentative seniority list; inter se transfers of officers from attached department to Information Group and vice versa and doctrine of locus penitential. It is well-settled that tentative seniority list is issued only for ascertaining the position and considering objections, if any, raised by the persons being affected so that a final list, which has element of reliability, be prepared and circulated. Tentative seniority list, except inviting attention for seeking correction, does not create any legitimate basis for conferring right or basis for cause of action.
Similarly, mere factum of transfers unless power of merger has legal sanctity does not ipso facto provide justification for claiming inclusion of the two distinct posts into single group. It is admitted feature of the case that after communication of decision from Prime Minister Secretariat vide No,1/5/91-IG, dated 6th November, 1991, the position stood rectified and independent seniority list with regard to officers of Information Group was prepared in May 1992. Thus factually above order stands implemented and objections raised on behalf of respondents loses significance.
14. The learned members of the Tribunal have dilated upon the main aspects of the case and conclusions drawn in the impugned judgment do not suffer from any striking error or legal infirmity.
15. It may be mentioned here that applicant M. Yousaf Aziz despite knowledge had not challenged the final seniority list issued on 24th May, 1992 wherein he was excluded from the category of officers belonging to Information Group, therefore, he is not entitled to assert any right by submitting application for implement specially after lapse of almost five years. Besides, his case even otherwise is no better than appellant Khalid Rashid Shahbaz's case.
' For the above reasons, we find no substance in the appeal, which is dismissed. Parties are, however, left open to bear their own costs.