' SAIDUZZAMAN SIDDIQUI, ACTG. C.J.---We propose to dispose of the abovementioned seven civil appeals by a consolidated judgment as the points of law arising in these appeals are common.
' Civil Appeal No,233 of 1995: This appeal arises from the order of Federal Service Tribunal dated 7-6-1994. Leave was granted in this case to consider, whether the seniority of appellant was fixed in accordance with the judgment of the learned Federal Service Tribunal dated 12-5-1991. The appellant, an officer in Grade 19, was inducted in the Secretariat Group by way of transfer under section 10 of Civil Servants Act 1973 (hereinafter to be referred as 'the Act') in the year 1982 and was allowed seniority in that service from the date of his absorption in the Secretariat Group. The appellant, however, claimed seniority from the date he entered Grade 19. The appellant after exhausting departmental remedies, approached the Federal Service Tribunal through Appeal No,262 R/89 which was heard alongwith six other similar appeals and was disposed of on 12-5-1991 as follows:-- "In pursuance of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal is that the seniority of the appellants shall be determined in accordance with provisions of Office Memorandum No,2/2/75-ARC, dated 12-4-1976 subject to the re-examination of the order of the induction of the appellant Dr. Abdul Hameed Qureshi in Appeal No,271 (R)/89."
' It appears that the appellant in his Appeal (No, 262(R)189 before the Federal Service Tribunal, besides claiming that he was entitled to get this seniority determined in the Secretariat Group in accordance with O.M. No,2/2/75-ARC dated 12-4-1976, also claimed seniority over the respondents who were inducted in the Secretariat Group through lateral entry test but their induction was declared illegal. They were accordingly, either reverted or removed from service but were later re- inducted in the service after their approval from Federal Public Service Commission (FPSC). The appellant, therefore, claimed that these lateral entrants (respondents) in the Secretariat Group, were entitled to reckon their seniority only from the date of their reappointment as Deputy Secretary in the Secretariat Group. The learned Member (Mr. Rasheed-ud-Din Arshad) who heard Appeal No,262(R)/89 filed by the appellant alongwith the Chairman of the Federal Service Tribunal, while agreeing with the judgment of the Chairman of the Federal Service Tribunal, appended the following further observation in his concurring note:-- "I have had the benefit of going through the judgment written by the learned Chairman. While I agree with the relief granted to the appellants, I would like to add that in the decision of Federal Service Tribunal in the appeal of Syed Ali Mukatada Wahidi v. Establishment Division and others (1984 PLC (CS) 546) relief was granted to the appellant vis-a-vis the lateral entrants whose appointments as Deputy Secretary were considered irregular and who were reverted/removed from service as a result of exercise under section 12-A of Civil Servants Act, 1973 and were asked to appear before the Federal Public Service Commission for determining their suitability for appointment as Deputy Secretary on regular basis. In the order of the Federal Service Tribunal it was directed that such Officers would take their seniority from the dates they were re-appointed.
The Establishment Division appealed against the order of the Federal Service Tribunal before the Supreme Court of Pakistan (Civil Appeal No,670 of 1984 - Establishment Secretary v. S.A.M. Wahidi) but the appeal of Establishment Division was dismissed. The concluding sentence of the judgment of Supreme Court is: 'The judgment of the Federal Service Tribunal is unexceptionable and the appeal is dismissed with costs'.
13. The appellant has sought the same relief in the appeal under consideration. In my view, this relief should also be allowed to him following the decision of the Supreme Court."
' The appellant relying on the above-quoted observation of the learned Member of the Federal Service Tribunal, recorded in his Appeal (No,262(R)/89) filed a Miscellaneous Application No,70/91 in Appeal No,262(R)/89 before the Federal Service Tribunal, seeking addition of these observations in the operative part of the judgment of the Federal Service Tribunal. The learned Federal Service Tribunal, however, did not accede to the request of the appellant which was declined with these observations:-- "8. The main issue for determination of seniority was as to from which date the appellant was to reckon his seniority in the Secretariat Group. The date had been determined in unambiguous terms as discussed in the judgment. The seniority of the appellant vis-a-vis the respondents, therefore, would need re-determination and that is that job of the department to do as so many factors have to be taken into consideration for re-fixing the seniority. The note appended by the learned Member will have to be taken into consideration by the department while predetermining the question of seniority but it cannot be included in the operative part of the judgment in view of the provisions of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973. The reference by the appellant to the provisions of Rule 22 of the Service Tribunals (Procedure) Rules, 1974 is totally misconceived as the prayer made by him tends to seek review of the judgment which power does not vest in the Tribunal and reference in this respect is made to the decision of the Supreme Court reported in 1986 SCMR 806. Moreover, the appellant has stated that he has preferred appeal before the Supreme Court and therefore, review application cannot be maintained in view of the provisions of Order 47 of the Code of Civil Procedure. The application is, therefore, dismissed."
' The appellant moved another Miscellaneous Petition No,106/93 in Appeal No,262 (R)/89 which was also dismissed on 23-8-1997, as under:-- "2. The departmental representative has clarified that since the judgment of the Tribunal was upheld by the Hon'ble Supreme Court, the petition from the appellant (Dr. S.A. Mahmood) had not succeeded, as it had been dismissed. In fact there lied no appeal or miscellaneous petition, whatsoever against the judgments of the Hon'ble Supreme Court and of Tribunal, and no deviation or follow-up action can now be taken, except as per points of relief contained in the said judgments. As such miscellaneous Petition No,106/93 of Dr. Sh. A. Mehmood is not meaningful and competent and it should be dismissed.'
' Undeterred by the dismissal of his two earlier miscellaneous applications, the appellant field another Miscellaneous Petition No,171/93 in Appeal No,262 (R)/89 and contended that in pursuance of the direction of the learned Federal Service Tribunal dated 20--5-1993, the Law and Justice Division has sent its advice in the case which may be forwarded by the Federal Service Tribunal to the Establishment Division for compliance. Mr. Rana Rifat Saeed, the learned Member of the Federal Service Tribunal who initiated the order on the above miscellaneous petition declined the request of appellant, as under:-- "The petitioner had pleaded that since the Bench on 20-5-1993 had directed the Establishment Division to refer the case to Ministry of Law and Justice for examination in the light of judgment of the Tribunal with particular reference to the rejoinder of the appellant for clarification of seniority Rules in the light of Establishment Division's O.M. Dated 12-4-1976 and advice had come which should now be conducted by the learned Tribunal to Establishment Division for assigning him said seniority, as recommended in the advice of the Law Division. It was made clear to the petitioner that the Tribunal was neither an Administrative Department over and above the Establishment Division nor a countersigning/endorsing body for the recommendations of Law Division in order to ask the Establishment Division to give the desired seniority to the petitioner/appellant. But the Tribunal is a judicial forum which decides the appeals/petitions on facts and merits, as obtained from the appellants/petitioners and comments objections submitted by the respondents with particular reference to relevant Rules/Law and directions of the Hon'ble Supreme Court if ordered.
As such the Tribunal cannot resume an unlawful jurisdiction to countersign/endorse the advice of the seniority to press upon the respondents Division to assign a desired seniority to the appellant/petitioner who in fact have no fresh cause of grievance after his Appeal No,262(R)/89 stood decided by the Tribunal on 12-5-1991 and, upheld by the Hon'ble Supreme Court on 29-10- 1991 while dismissing his petition as having no force. The instant Petition No,171/93 stands dismissed, as it cannot have legal effect against the judgment of the Hon'ble Supreme Court dated 29-10-1991.
However, at best the respondents Division i.e, the Establishment Division which has precedent in service and personnel matters over other Ministries/Divisions may consult any other Division if required, to decide the issue of seniority of the appellant/petitioner and other co-petitioners i.e, M/s. Akbar Hayat Khan and S. Ibrahim shah in the light of judgment of the Tribunal dated 12-5-1991 and of Hon'ble Supreme Court dated 29-10-1991. The other petitions Nos.173 and 174/93 filed by the co-petitioners mutatis mutandis also stand dismissed."
' The learned Chairman of the Federal Service Tribunal, however, did not agree with the order of learned Member (Mr. Rana Rifat Saeed) and allowed the miscellaneous petitions filed by the appellant and others as follows:-- "As a consequence the Establishment Division vide its letter dated 28-8-1993 submitted to the Tribunal the opinion of the Law and Justice Division in compliance with the directions of the Tribunal and the relevant paragraphs of the letter dated 28-8-1993 are reproduced below: "2. Establishment Division would go by the Law and Justice Division advice after its acceptance by Federal Service Tribunal
3. In view of the above, the Federal Service Tribunal are requested to pass final orders in the miscellaneous petition of Dr. Sheikh Aleem Mahmood and communicate the same to this Division.
' I am of the view that interpretation of the O.M. Dated 12-4-1976, referred to above, tendered by the Law and Justice Division is just, fair and equitable and the Establishment Division is expected to honour its commitment as made in its letter dated 28-8-1993, to avoid unnecessary litigation as the appellants-petitioners are indulged in litigation for their rights since 1989.
' For the foregoing reasons, I held that the Miscellaneous Application No,34/92 filed by Dr. Sh. Aleem Mahmood, and so also by the petitioners M/s S. Ibrahim Shah and Akbar Hayat Khan for implementation of the judgment of the Tribunal still remain unimplemented, and would allow all the three Applications No,171/93 in Appeal No,262(R)/89; 173/93 in Appeal No,268(R)/89 and 174/93 in Appeal No,293(R)/89 with their directions that judgment of the Tribunal in all the three appeals may be implemented in the above terms. DATED (Sd.) CHAIRMAN)
10-10-1993 17-7-1993 ORDER OF THE TRIBUNAL ' By virtue of proviso (c) to subsection (2) of section 3-A of the Service Tribunals Act, 1973, the order of the Tribunal is expressed in the opinion of the Chairman and miscellaneous applications No,171/93 in Appeals Nos.262(R)/89; 173/93 are allowed with the directions that the judgment of the Tribunal in all three appeals may be implemented."
' The Establishment Division thereafter issued a memorandum being No .2/22/91-CP.2 dated 15-12- 1993 informing the appellant that in implementation of the judgment of the Federal Service Tribunal dated 12-5-1991, the seniority of the appellant was refixed and his name was entered at Serial No,19-A, below Mr. Javed Ahmed Noel (Serial No,19) and above Ali Nawaz Bahio (Serial No,20) in the gradation list of Secretariat Group Officers (BPS-19) as on 1-11-1987, at Serial No,8-A below Mr. Abdul Rashied Ghauri (Serial No, 8) in gradation list of Secretariat Group Officers (BPS-19) as on 1- 4-1990 and at Serial No,85-A, below Mr. Salim Khan (Serial No,85) in gradation list of Secretariat Group Offices (BPS-20) as on 15-12-1993.
' The appellant, apparently, dissatisfied with the placement of his name in the seniority lists as aforesaid filed Appeal No,187(R)/1994 on 6-6-1994 which was dismissed as follows:-- "2. The above letter of the Establishment Division had in fact been issued towards implementation of the earlier judgment of the FST dated 12-5-1991 and prima facie it seems that the appellant is not satisfied with the implementation/fixation of seniority and by way of submission of instant appeal he virtually wants a review of the earlier judgment of the FST which in fact had also been upheld by the Hon'ble Supreme Court vide judgment dated 19-10-1991. Accordingly the appeal requiring review is totally misconceived and incompetent.
3. Further the appellant has impleaded respondent No,3, Mr. Muhammad Hassan Bhutto (who is already promoted as Secretary in B-22, respondent 4, Nazar Muhammad A. Shaikh (who is promoted as Additional Secretary 13-21) & other Joint Secretary (B-20), he should not implead respondents 3 and 4 who are in B-22 and 21 at the moment. The appeal is, therefore, also technically hit by misjoinder of parties.
4. At the bar, the appellant has admitted that he has no fresh cause of grievance and he only wants re-fixation of seniority which, according to him, had not properly been assigned by the Establishment Division. Since he has no fresh case of grievance and the instant appeal is more a belated link with his last Appeal No,262(R)/89 which had already been decided by the FST on 12-5- 1991, the appeal also technically suffers on this account too, as it has been submitted without any real grievance. Under the circumstances, the appeal is dismissed in limine."
' Against the order of the learned Federal Service Tribunal, leave was granted as aforesaid.
CIVIL APPEALS NOS.71 AND 72 OF 1995 ' These two civil appeals are filed against the judgment of Federal Service Tribunal dated 5-6-1994 passed in Service Appeal No,18(R)/1994 filed by one Muhammad Ashraf Nadeem' (Respondent No,1 in Civil Appeals 71 and 72 of 1995) against Saad Ashraf (appellant in Civil Appeal No,71 of 1995), Secretary Establishment Division (appellant in Civil Appeal No,72 of 1995) and 9 others. Respondent No,1 was appointed Deputy Secretary through lateral entry test with effect from 17-7-1974 vide Notification No,22/6/74-AV (76) dated 17-7-1974. In gradation list of the Secretariat Group Officers (BPS-19) issued in 1975 the name of respondent No,1 appeared at Serial No,162. The services of respondent No,1 were however, terminated w.e.f, 26-12-1977. Respondent No,1 challenged his termination before the Federal Service Tribunal in Appeal No,22(L)/1982 which was allowed. He was accordingly, reinstated in service vide notification dated 23-6-1986 with all consequential benefits.
The period during which respondent No,1 remained out of service was treated as on duty.
Respondent No,1 was promoted as Joint Secretary (BPS-20) vide Notification dated 17-9-1987. It appears that in the gradation list of officers of Secretariat Group (BPS-20), issued on 1-11-1987 the appellant was shown junior to many officers and his name appeared at Serial No,219 of the list. On his representation, respondent No,1 was allowed benefit of increment and fixation of his pay in (BPS-20) w.e.f, 19-5-1983 from the dated his junior (Abudllah J. Memon) was promoted to (BPS-20).
He was also allowed re-fixation of his seniority in (BPS-20) by placing his name over Mr. Nazir Ahmed who was junior to him in lower rank vide notification dated 10-8-1988. The matter appears to have rested there. However, on 1-4-1993, respondent No,1 once again represented to Secretary, Establishment Division and relying on the judgments of the learned Federal Service Tribunal in the cases of Syed Ali Muqatada Wahidi (1984 PLC (C.S.) 546), Muhammad Rafiq Asghar (Appeal No,101(R) of 1988), prayed as follows:-- "2. In the light of the judgments mentioned above, I request that my seniority may also be reckoned from the date of my appointment as Deputy Secretary i.e, 17-7-1974 and my name may be placed immediately after Mr. Roshan Ali Mangi."
' The Secretary Establishment, however, turned down the request of respondent No,1 on 29-11-1993 as under:-- ' Subject: GRADATION LIST OF APUG OFFICERS OF SECRETARIAT GROUP ' The undersigned is directed to refer Kashmir Affairs and Northern Affairs Division O.M. No, E.7/6189, dated 3-4-1993, enclosing therewith an application of Mr. Muhammad Ashraf Nadeem, of that Division, on the above subject and to say that his case has been examined in the Establishment Division and the position is that the seniority of Mr. Muhammad Ashraf Nadeem has been correctly fixed under subsection (4) of section 8 of the Civil Servants Act, 1973. Therefore, his request for re- fixation of seniority is not maintainable. The officer may please be informed accordingly.
(Sd.)
Fayyaz H. Zaidi), Section Officer (CP.2.)"
' Respondent No,1 then preferred Appeal No,18(R)/1994 on 13-1-1994 before the learned Federal Service Tribunal, which was allowed as follows:-- "8. The contention of the appellant is that he may be given seniority retrospectively from 17-7-1974, the date when he was appointed as Deputy Secretary and thereafter all benefits be given due to that seniority. This request can hardly be considered as in the gradation list of Joint Secretaries issued in the year 1985 wherein he was shown junior to respondents which he did not challenge.
However, he made representation claiming for seniority over Mr. Nazir Ahmed, Joint Secretary, who was junior to him in the lower grade, and his representation was accepted and he was allowed seniority over Mr. Nazir Ahmed whose name appeared at S.No,135 in the list of 1987, vide Office Memorandum dated 10th August, 1988 from the Establishment Division. Under the same O.M. He was also allowed the benefit of increments and fixation of pay in (BPS-20) with effect from 19-5- 1983 (the date of promotion of his another junior Mr. Abdullah, J. Memon to (BPS-20) to 17-9-1987, but without the benefit of seniority. The cause of grievance accrued to the appellant when his promotion to (BPS-20) was ante-dated in 1988 as such objection that he did not challenge seniority of 1987 is irrelevant as that time his promotion made in 1987 was not ante-dated. The crux of the matter is that the appellant in all respects was senior to the respondents as Deputy Secretary but due to unfortunate incident his services were terminated and he was reinstated with all benefits and from the orders issued from time to time it is clear that he was in continuous service right from his appointment as Deputy Secretary till his reinstatement viz. 23-6-1986 and was eligible promotion to (BPS-20) on the basis of that seniority. This has been accepted by the Government whereupon he was promoted to (BPS-20) with effect from 17-9-1987.. Therefore, the contention of respondent No,2 that the appellant accepted seniority of 1981 is repelled as at that time the appellant was not in service and his services stood terminated and there was no occasion for him to agitate at that time. He was reinstated in 1986. He made representation against the seniority position of Mr. Nazir Ahmed as it was on 1-11-1987 and also to ante-dation of his promotion which was accepted by the competent authority and the appellant was made senior to him. Not only this but, as stated above, he was given pro forma promotion in (BPS-20) from 19-5-1983, when one of his junior Mr. Abdullah J. Memon was promoted in (BPS-20) from 19-5-1983, with the benefit of increments and fixation of pay in (BPS-20). By virtue of this, the claim of the appellant stands admitted and we see no reason as to why he should be deprived of his due seniority as Joint Secretary which he achieved by entering into service through lateral entry as Deputy Secretary much earlier than the respondents under section 8 (4) of the Civil Servants Act, 1973. It is an admitted position that on the issue of gradation list of (BPS-20) officers in 1987 the appellant made representation and accordingly his request was accepted and the name of the appellant was placed above the name of Mr. Nazir Ahmed who was at Serial No,135 in the gradation list of 1987, therefore, the objection of Establishment Division that he did not challenge seniority list of 1987 is not tenable. Respondent No,2, Mr. Saad Ashraf was promoted as Joint Secretary (BPS-20) with effect from 4-8-1983, but since the appellant was granted ante-dated promotion in BPS-20 with effect from 19-5-1983, and none of the private respondents agitated against this antedation, as such the appellant has to rank senior to Mr. Saad Ashraf, respondent No,2.
9. As regards the objection of time bar the appellant soon after the acceptance of appeal filed by Mr. Roshan Ali Mangi, by the Tribunal and also upheld by the Supreme Court made representation on 1-4-1993 wherein it was prayed that the principle of determination of seniority of lateral entrants as laid down in the case of Syed Ali Muqtada Wahidi; Muhammad Rafiq Asghar etc., may also be extended to his case and his name may be placed just below the name of Mr. Roshan Ali Mangi. His representation was rejected by the Establishment Division vide O.M. Dated 29-11-1993 and decision was conveyed to him vide endorsement dated 16-12-1993. In the meanwhile, seniority list of Joint Secretaries (BPS-20) was issued as on 15-2-1993. He then filed this appeal on 13-1-1994 and the appeal is not time-barred.
10. For the foregoing reasons, we accept the appeal and direct the Establishment Division to 'recast the seniority of the appellant in the rank of Joint Secretary in the terms indicated above.
11. This order is ex parte in respect of private respondents namely M/s. Syed Navaid Ali Nasir, Iftikhar Ahmed Khan, Zulfiqar Khan. Dr. Sahibazada Masood Ali, Muhammad Zafar Mian, Dr. Khalid Hassan Bokhari, Muhammad Rashid, S. Farogh Naveed, and Shamsul Haq and they have neither bothered to file objections nor attended the Tribunal to contest their cases."
Leave was granted in these two appeals against the judgment of the Federal Service Tribunal to consider the following contentions:-- "4. It is, inter alia, alleged that the appeal before the Tribunal was barred by time as the gradation list of 1975 was revised in the year 1981 against which respondent No,1 did not file any representation when he was reinstated with all back benefits. That the respondent was promoted on the basis of such seniority and gradation list published in the year 1987 which too was not challenged. That on his failure to clear Federal Public Service Commission or by the precedent under section 12(a) of the Civil Servants Act, 1973 and he having failed in his Lateral Entry Examination his appointment as Deputy Secretary was not regularised, therefore, he could not have claimed seniority over those who had been regularised earlier within the meaning of section 8(4) of the Civil Servants Act.
' We grant leave to appeal to consider the above contentions.
" CIVIL APPEALS NOS.285, 286 AND 287 OF 1995 ' These three civil appeals are directed against the consolidated judgment of the Federal Service Tribunal dated 21-7-1994 rejecting Service Appeals Nos.204(R)/1994, 216(R)/1994 and 218(R)/1994 filed by Javed Ahmed Noel (appellant in Civil Appeal No,285/95), Dr. Abdul Hameed Qureshi (appellant in Civil Appeal No,286/95) and Akbar Hayat Gandapiir (Appellant in Civil Appeal No,287/95). For the sake of convenience, we will refer the Appellant in each case by his name.
Leave was granted in the above three appeals as follows:-- "Mr. Zakaullah Jan has filed comments in writing. It appears from the impugned judgment at page 18 of the paper book of C.P. 439/94 that, before the Service Tribunal, Mr. Zakaullah Jan had stated that the case of the petitioner had been reviewed in the Establishment Division in the light of the observations contained in S.A.M. Wahidi's case; whereas the comments filed in writing herein, contrary stand is taken that S.A.M. Wahidi's case is distinguishable.
2. Leave is granted to consider whether S.A.M. Wahidi's case is applicable in the instant case or not."
CIVIL APPEAL NO.285 OF 1995 ' Javed Ahmed Noel (appellant in Civil Appeal No,285/95 an officer of Income Tax Group in Grade 18, was promoted to officiate as Appellate Assistant Commissioner of Income Tax (Grade 19) w.e.f, 14-3-1975. He was later. Appointed to officiate as Deputy Secretary under Horizontal movement and posted in Finance Division w.e.f, 1-12-1976. On issuance of gradation list of officers of Secretariat Group corrected up to 1-11-1987 he represented against his seniority position shown in the gradation list to the Secretary Establishment. After waiting for 90 days he preferred Appeal No,243(R)/88 before the learned Federal Service Tribunal. It appears that during pendency of his appeal before the Federal Service Tribunal the departmental authority allowed him seniority w.e.f, 15-3-1975, the date of his promotion in (BPS-19). Therefore when his Appeal No,243(R)/88 came up for hearing before Federal Service Tribunal he did not press his prayer for fixation of his seniority in (BPS-19). It further appears that the representative of Establishment Division appearing before the Federal Service Tribunal further stated before the Federal Service Tribunal that if the case is remanded, the Establishment Division would review the case of appellant in the light of the judgment of Supreme Court in S.A.M. Wahidi's case. The learned Federal Service Tribunal accordingly, disposed of the appeal (243(R)/88) filed by Javed Ahmed Noel in these terms:-- "We have heard the appellant and his counsel. It is argued that the Supreme Court has already decided the principle of seniority which is applicable to the appellant's case. Reliance is placed on the case of S.A.M. Wahidi in Civil Appeal No, 670 of 1984. The appellant has stated that he has already been given relief as far as his prayer at clause (a) in the memo. Of appeal is concerned and it read as under:-- 'Fix the seniority of the appellant among Grade 19 of the Secretariat Group on the basis of his continuous officiation in Grade 19 with effect from 14-3-1975.'
' Mr. Zakaullah Jan, Section Officer has appeared on behalf of the Establishment Division. He stated that if the case is remanded to the Establishment Division, the postilion will be reviewed according to the judgment of Supreme Court in S.A.M. Wahidi's case and other authorities, if any. In these circumstances, we remand the case to the Establishment Division with the direction to examine the case in the light of the latest development that the appellant has been allowed seniority in Grade 19 and in consideration of relevant factors and decide the question of seniority of appellant within three months. The appellant shall be at liberty to approach the Tribunal if so advised. The appeal stands disposed of accordingly."
' After disposal of the Appeal (No,243(R)/88) field by Javed Ahmed Noel as stated above, the Establishment Division on 20-6-1993 issued the following memorandum:-- "Subject: ORDERS PASSED IN APPEAL NO.243-R/88 FILED BY MR. JAVED AHMED NOEL v. ESTABLISHMENT DIVISION.
' Reference judgment of the Federal Service Tribunal dated 14-1-1993, I copy of which was forwarded to the Establishment Division vide FST's Dy.No,245, dated 24-1-1993, on the above subject and to say that the case of Mr. Javed Ahmed Noel remanded to the Establishment Division has been examined.
' The appellant has been granted seniority w.e.f, 15-3-1975 i.e, the date of his promotion in (BPS-19) in his parent Group (Income Tax Group).
3. As regards his claim for seniority over lateral entrants, the competent authority at the time of induction of lateral entrants, had decided the principle of seniority as under:-- '(a) The seniority of all those Lateral Entrants who have been approved for retention after review of their cases should remain unlatered. There appears no justification for them to lose original seniority once the Government has approved their retention.
(b) The inter se seniority of all the Lateral Entrants who have been approved for retention should also remain unchanged.'
' Therefore all those lateral entrants who were retained in their original service as a result of review were allowed to retain their original seniority. The FST judgment, in Civil Appeal No,59 (Q) 1980 Bahlul Khan v. Federation, which was upheld by the Supreme Court of Pakistan as well, also held the principle to give seniority to Mr. Bahlul (a lateral entrant who was removed/reverted and subsequently reinstated from the date of his removal/reversion) from the date of his original appointment. As such seniority claim of Mr. Javed Ahmed Nowel over the lateral entrants cannot be accepted.
4. As for the claim of Mr. Javed Ahmed Noel over certain CSP officers, the same also cannot be considered at this stage as an identical review petition moved by Mr. Hamid Akhtar Niazi before the honourable Supreme Court of Pakistan is still pending for adjudication.
(Sd)
(Hamid Ali Alvi), Deputy Secretary (CP-II)."
' Javed Ahmed Noel was, however, not satisfied with the seniority position assigned to him and accordingly, he challenged the above notification before the Federal Service Tribunal in Appeal No,204(R)/94 claiming seniority over respondents 2 to 22 as Deputy Secretary and re-fixation of his seniority in Grade 20.
CIVIL APPEAL NO.286 OF 1985 Dr. Abdul Hameed Qureshi (appellant in Civil Appeal No,286/95) was appointed as Associate Professor (Chemical Engineering) (BPS-19), on 3-81974 under Ministry of Education. He was posted as Deputy Education Adviser (BPS-19) in the Ministry of Education w.e.f, 7-10-1981. He was inducted in the Secretariat Group w.e.f, 19-9-1984 vide notification dated 29-12-1988. In the gradation list of the officers of Secretariat Group corrected up to 1-1-1989, he was placed at Serial No,68-A below Mr. Akhtar Hasan. He represented against the said seniority list and claimed seniority w.e.f, 3-8-1978, the date of regular continuous officiating in Grade 19 and having waited for 90 days brought his grievance before the Federal Service Tribunal in Appeal No,271(R)/89 which was disposed of alongwith 6 other appeals as follows:-- "...However, the case of appellant, Dr. Abdul Hameed Qureshi, (Appeal No,271(R)/89) would need to be re-examined in the Establishment Division as consideration of his induction in the Secretariat Group was deferred by the Central Selection Board at its meeting held on 29-9-1988 and yet the notification of his induction was issued on 29-12-1988 and no evidence has been placed before us to indicate that his induction was cleared by the Central Selection Board."
' In the light of the order passed by Federal Service Tribunal in Appeal No,271(R)/89 and other appeals on 12-5-1991, the Establishment Division issued Memorandum No,2/22/91-CP-2 dated 15- 12-1993 wherein the seniority of Dr. Abdul Hammed Qureshi was re-fixed and his name was placed in the gradation list amongst the officers of Secretariat Group (BPS-19) as on 1-11-1987 at Serial No,21-B, below Lt.-Col. (Retd.) Syed Sabir Ali Shah (Serial No,21) and above S.A.M. Wahidi (Serial No,22), amongst the officers of Secretariat Group (BPS-19) as on 1-4-1990 at Serial No,8-D, below Mr. Abdul Rashid Ghani (Serial No,8) and above Syed Saeeduz Zafar (Serial No,9) and in the list of officers of (BPS-20) as on 15-2-1993 at Serial No,86-A below Ali Nawaz Bohio (Serial No,86) and above Mr. Zafar Hassan Mahmood (Serial No,-87). Feeling aggrieved with the seniority position as determined in the memorandum dated 15-12-1993, Dr. Abdul Hameed Qureshi filed Appeal No,216(R)/89 before Federal Service Tribunal, claiming seniority over lateral enterant in the Secretariat Group.
CIVIL APPEAL NO.287 OF 1995 ' Akbar Hayat Gandapur (appellant in Civil Appeal No,287/95) was appointed as Deputy Chief (B- 18) in the Manpower Division w.e.f, 20-11-1976 vide Notification No,4-2 (14)76-Estt. Dated 23-11-1976 on ad hoc basis. He was later selected by FPSC and was appointed on regular basis as Deputy Chief (B-19) w.e.f, 5-2-1978 vide Notification dated 19-2-1978 . He was transferred as Deputy Secretary, KANA Division under section 10 of the Act vide Notification dated 8-6-1982. He was letter inducted in Secretariat Group vide Establishment Division Notification dated 6-12-1988. In the gradation list of the offices of Secretariat Group (B-19) corrected up to 1-1-1989, the name of Akbar Hayat Gandapur was placed at Serial No,33-A below the name of Azhar Shafqaat. He represented against the gradation list to the Establishment Division which was not responded. Therefore, he filed Appeal No,293(R)/89 before Federal Service Tribunal which was decided alongwith other appeals vide judgment dated 12-5-1991. In the light of the judgment of Federal Service Tribunal dated 12-5-1991 the seniority of Akbar Hayat Gandpur was re-fixed by Establishment Division and his name was placed in the gradation list of officers of Secretariat Group (B-19) corrected up 1-11- 1987 at Serial No,21-A, below Lt.-Col (Retd.) Syed Sabir Ali Shah (Serial No,21) and above S.A.M.
Wahidi (Serial No,22), at Serial No,8-A, below Rashid Ghauri (Serial No,8) and above Syed Saeeduzzafar (Serial No,9) in the gradation list of officers of Secretariat Group (B-19) corrected up to 1-4-1990 and was shown at Serial No,86-B, below Ali Nawaz Bohio (Serial No,86) and above Zafar Hussan Mahmood (Serial No,87) in the gradation list of officers of Secretariat Group (B-20) as on 15-2-1993.
' Being dissatisfied with the above placement of his name in the seniority list of the officers of Seretariat Group, Akbar Hayat Gandapur filed departmental appeal on 16-1-1994 and having failed to receive any response within 90 years preferred Appeal No,216(R)194 before the learned Federal Service Tribunal claiming seniority against all (BPS-19) officers of Secretariat Group who were appointed as Deputy Secretary or to a post in Grade 19 after 21-11-1976.
' The learned Federal service Tribunal rejected the abovementioned three appeals (Appeals Nos.204(R), 216(R) and 218(R)/94) on two grounds. Firstly, that the Tribunal in a similar Service Appeal No,407(R)/93 filed by one Pervez Ijaz Sheikh against Establishment Division and others, decided on 23-1-1994, had ruled that since several respondents were earlier promoted as Joint Secretary (BPS-20), therefore, the grievance for re-fixation of seniority of appellant as Deputy Secretary (B-19) qua the respondent could not be entertained. This decision of Federal Service Tribunal was upheld by this Court the petition filed by Pervez Ijaz Sheikh against the decision of Federal Service Tribunal. The learned Federal Service Tribunal, therefore, took the view that its decision in Pervaz Ijaz Sheikh's case applied to these appeals as well. Secondly, the contention of appellants that those respondents who entered the Secretariat Group through lateral entry test and were either reverted or removed from service, were entitled to claim seniority only from the date of their reappointment after approved by FPSC, was repelled by the learned Tribunal on the ground that the appointments of lateral entrants in the Secretariat Group were regularised by the competent authority vide O.M. Dated 20-11-1979 issued by Establishment Division, and therefore, they were entitled to reckon their seniority from the date of their original induction in the Secretariat Group.
CIVIL APPEAL NO.1313 OF 1996 ' The appellant Khalid Amin joined Accounts Group after qualifying CSS Examination w.e.f, 15-12- 1965. He was appointed as Deputy Secretary (B-18) vide Notification dated 11-7-1974 having passed the lateral entrants test. He was inducted in Secretariat Group (B-19) in the year 1975 and was assigned seniority w.e.f, 17-7-1994. In the year 1981, the Establishment Division issued seniority list of the officers of Secretariat Group wherein he was assigned seniority position at Serial No,72. He did not agitate against the assignment of above seniority at that stage. He also did not agitate against the seniority position assigned to him in the subsequent gradation list issued up to 1994.
' However, on issuance of the gradation list on 28-8-4994 which reflected the seniority position of the officers of Secretariat Group as on 1-7-1994, the appellant objected to seniority position of respondents Nos.2 to 11 who were shown senior to him by filing representation to Establishment Secretary as well as Prime Minister. The appellant claimed that respondents 2 to 11 in the appeal were junior to him either as Deputy Secretary or in Grade 19. Having failed to receive any response to his representation he filed service appeal before the Federal Service Tribunal on 12-11-1995 claiming the following relief:- "11. In the circumstances and for reasons stated in the preceding paragraph, it is respectfully prayed that the Hon'ble Tribunal may please direct respondent No,1 to rectify the seniority list of the Secretariat Group and assign seniority to the appellant in (BPS-19) with reference to 17-7-1974, the date of his induction in the Secretariat Group in Grade/(BPS-19) and consequently in (BPS-20) (to which he has since been promoted in the meanwhile on 24-3-1986) as envisaged by para. B (i)(a) and B (ii) of the General Principles of Seniority of 1970 (S1.No,158, Chapter II, ESTACODE). He may also be allowed other consequential benefits.
12. Cost of this appeal and any other relief that may appear appropriate and equitable to the Hon'ble Tribunal in the circumstances of the case may please as well be awarded to the appellant."
' The learned Federal Service Tribunal dismissed the appeal in limine on 26-1-1995 against which leave was granted as follows:-- "The learned counsel for the petitioner as well as learned Deputy Attorney-General who is present in Court, state that in number of petitions in which similar questions are involved, leave has been granted by this Court. They have placed before us a copy of leave granting order in Civil Petitions Nos. 381/94, 415/94, CP 439/94, 454/94, 456/94 and CP.402. We, accordingly, grant leave to appeal in the above petition also and direct that the same will be heard alongwith Civil Appeals Nos.285- 287/95, 71/95, 72/95 and 233/95."
' We have heard the learned counsel for some of the appellants, some of the appellants who appeared in person and the learned Deputy Attorney-General, at length in these appeals.
CIVIL APPEAL NO.1313 OF 1996 ' We first take up Appeal No,1313/96. Leave has been granted in this appeal on the basis of leave granting orders in the other connected appeals. The appellant in this appeal filed service appeal before the learned FST which was dismissed in limine on the group that the appellant failed to agitate the question of his seniority at the appropriate time which attained finality and therefore, it could not be reopened at such a late stage. The order passed by the learned FST appears to be unexceptionable. The appellant, Khalid Amin, in his Appeal No,37(R)/95 filed before the FST claimed seniority over private respondents 2 to 11, who were shown senior to him in the seniority list issued by the Establishment Division on 28-8-1994 indicating the seniority position of the officers of Secretariat Group in (BPS-20) as on 1-7-1994. The appellant, however, made the following prayers in his appeal before the learned FST:-- "11. In the circumstances and for reasons stated in the preceding paragraph, it is respectfully prayed that the Hon'ble Tribunal may please direct respondent No,1 to rectify the seniority list of the Secretariat Group and assign seniority to the appellant in (BPS-19) with reference to 17-7-1974, the date of his induction in the Secretariat Group in Grade/(BPS-19) and consequently in (BPS-20) (to which he has since been pomoted in the meanwhile on 24-3-1986) as envisaged by para. B(i) (a) and B (ii) of the General Principles of Seniority of 1970 (Sl.No,158, Chapter II, ESTACODE). He may also be allowed other consequential benefits.
12. Cost of this appeal and any other relief that may appear appropriate and equitable to the Hon'ble Tribunal in the circumstances of the case may please as well be awarded to the appellant."
' Although the appellant apparently challenged the seniority position of respondents 2 to 11 as on 1- 7-1994 only but it is quite clear from the prayers made by him in his appeal before the FST that in effect he was seeking correction of his seniority since 1974. This could not have been allowed for the reason that in various gradation lists of officers of Secretariat Group in (BPS-19), issued since 1981, he was consistently shown junior to respondents Nos.2 to 11 but he never objected to it. Even in the gradation lists of officers of Secretariat Group in (BPS-20) issued in 1987, 1990 and 1993 showing the seniority position of appellant and respondents 2 to 11 as on 1-11-1987, 1-4-1990 and 15-2-1993 respectively, he was all along shown junior to respondents 2 to 11 but he never took exception to it.
The seniority position of appellant, qua respondents 2 to 11, in the gradation list issued on 28-8-1994 showing their respective seniority, as on 1-7-1994 was the same as was shown in the earlier seniority lists issued in 1987, 1990 and 1993. The gradation list issued in 1994, therefore, could not furnish any new cause of action to the appellant. The appellant having failed to challenge his seniority position form 1981 to 1993 qua respondents 2 to 11, the same attained finality and therefore, he could not challenge the same after passage of more than a decade. The learned FST therefore, rightly rejected the appeal filed by Mr. Khalid Amin.
CIVIL APPEALS NOS. 71 AND 72 OF 1995 ' These two appeals arise from the order of learned FST dated 5-6-1994. The learned FST on the appeal filed by respondent No,1, Muhammad Ashraf Nadeem, declared him senior to private respondents 3 to 12 and the appellant in Civil Appeal No, 71 of 1995. The contention of the appellants in these appeals is that the appeal of respondent No,1 was firstly time-barred and secondly, respondent No,1 being a lateral entrant in the Secretariat Group, his seniority was to be fixed from the date he was re-appointed after his removal from the service. It is true that respondent No,1 was a lateral entrants in the Secretariat Group and his service was terminated on 26-11-1977 under section 11(3) of the Act. However, his case was distinguishable from other lateral entrants in Secretariat Group as he challenged his termination from service before FST in Appeal No,22(L)/78 which was allowed and he was ordered to be reinstated in service with all consequential benefits.
The period he remained out of service on account of illegal termination of his service was treated as period spent on duty. He was allowed benefit of increments and fixation of pay in BPS-20 with effect from 19-5-1983, the date on which one of his junior Abdullah J. Memon was promoted to BPS- 20 besides allowing him seniority over Mr. Nazir Ahmed whose name appeared at Serial No,135 in the gradation list of 1987 on the ground that said Nazir Ahmed was junior to him in the lower grade, vide O.M. Dated 10-8-1988. In these circumstances, the learned FST rightly allowed him seniority in the cadre of Joint Secretary as is promotion was ante-dated with effect from 19-5-1983 which was not challenged by any body including the appellant in Civil Appeal,,,No,71 of 1995. With regard to the objection of appellant in Civil Appeal it o.72 of 1995 that the appeal of respondent No,1 before the FST was time "barred the learned FST repelled the contention as follows : "9. As regards the objection of time bar, the appellant soon after the acceptance of appeal filed by Mr. Roshan Ali Mangi, by the Tribunal and also upheld by the Supreme Court made representation on 1-4-1993 wherein it was prayed that the principle of determination of seniority of lateral entrants as laid down in the case of Syed Ali Muqtada Wahidi; Muhammad Rafiq Asghar etc. May also be extended to his case and his name may be placed just below the name of Mr. Roshan Ali Mangi. His representation was rejected by the Establishment Division vide O.M. Dated 29-11-1993 and decision was conveyed to him vide endorsement dated 16-12-1993. In the meantime, Seniority List of Joint Secretaries BPS-20 was issued as on 15-2-1993. He then filed this appeal on 13-1-1994 and the appeal is not time-barred."
' We are unable to discover any infirmity in the above reasoning of the learned FST. These two appeals, therefore, have to merit.
CIVIL APPEALS Nos. 233, 285, 286 AND 287 OF 1995 ' The appellants in the remaining four civil appeals are officers who were appointed in the Secretariat Group through horizontal movement by transfer under section 10 of the Act from other occupational groups. It is an admitted position that after introduction of administrative reforms and abolition of services, various occupational groups were formed in place of services. Broad framework of Rules and Regulations within which each occupational group was to work, were also laid down. The Secretariat Group was the last such occupational group to be formed in the services. The Rules and procedure for functioning of the Secretariat Group were laid down in the O.M.No,2/275-ARC dated 12-4-1976 which reads as follows:-- "SI.No,19: ' In continuation of the Establishment Division Office Memorandum No,1/2/75-ARC, dated the 27th January, 1975, it has been decided to constitute another occupational group to be called the 'Secretariat Group'. The Group will comprise posts of Deputy Secretary and above in the Federal Secretariat and such posts in the Provincial Secretaries as are borne on the cadre of All-Pakistan Unified Grades.
2. The Secretariat Group will be under the administrative control of the Establishment and will function in accordance with the rules and procedure outlined below.
3. Deputy Secretary.- --Appointment to the post of Deputy Secretary will be made in accordance with the following methods:--
(i) By promotion of Grade 18 officers of the Office Management Group and the Secretariat Group on the recommendations of the Central Selection Board.
(ii) By horizontal movement from other Occupational Groups of Grade 19 Officers who have been recommended by the Ministries/Divisions, Departments or Provincial Governments and have been found fit by the Central Selection Board.
(iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc., as may be prescribed.
4. Joint Secretary.- --Appointment to the post of Joint Secretary will be made as under:--
(i) By promotion of officers in the grade of Deputy Secretary on the recommendations of the Central Selection Board.
(ii) By horizontal movement of such Grade-20 officers of the various occupational groups as are recommended by the Ministries/Division, Departments, Provincial Governments etc. And are found fit by the Central Selection Board.
(iii) By direct appointment on the recommendations of the Federal Public Service Commission of persons possessing such qualifications and experience etc., as may be prescribed.
5. Additional Secretary.- --Appointment to the post of Additional Secretary will be made by selection from amongst Joint Secretaries, officers of Grade-20 and above belonging to the various occupational groups, and professionally qualified person in the public sector enterprises and the private sector.
6. Secretary (Grade-22). ---Appointment to the post of Secretary will be made by selection from amongst Additional Secretaries, officers of Grade 21 and above in the various occupational groups and professionally qualified persons from the public sector enterprises and the private sector.
7. Provincial Secretariats. ---All posts of Deputy Secretary and above in the Provincial Secretariats borne on the cadre of All-Pakistan Unified Grades will be filled on All-Pakistan basis. The selection will be made from amongst officers of the Secretariat Group by promotion, on the recommendations of a Selection Board headed by the Establishment Secretary and consisting of all the Chief Secretaries. Officers of the Office Management Group of the Provincial Government will also be eligible for appointment by promotion to the post of Deputy Secretary in the Provincial Secretariat.
Seniority
8. Deputy Secretary. ---Seniority would be determined from the date of continuous regular officiation as Deputy Secretary, or in a post in Grade 19, whichever is earlier.
9. Joint Secretary. ---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.
10. Additional Seretaries and Secretaries. ---The seniority of Additional Seretaries will be determined from the date of continuous regular officiation in Grade 21 or 22, as the case may be.
11. Training.--Deputy Secretaries-and Joint Secretaries appointed on the recommendations of F.P.S.C. Will undergo a training course of appropriate duration before their appointment in the Secretariat.
12. In-service training will be an important factor towards determining the fitness for promotion of Secretariat Officer to the next higher grade.
13. General Horizontal movement of officers of this Group to posts in equivalent grades in the other accupational groups will be permissible.
14. The terms and conditions of Government servants belonging to this Group will be governed, as in the case of other Government servants, by the provisions of the Civil Servants Act, 1973, and Rules and Orders issued hereunder from time to time.
15. This supersedes Establishment Division O.M. No,2/2/75-ARC, dated 21st February, 1975.
(Authority.---O.M.No,2/2/75-ARC, dated the 12th April, 1976)."
' The first contention of the appellants jointly in the above appeals is, that in terms of para. 8 of 0.M .No,2/2/75-ARC dated 12-4-1976 reproduced above, they are entitled to seniority in the Secretariat Group from the date of continuous offication as Deputy Secretary or from the date they were awarded Grade 19 whichever is earlier. This contention in principle was accepted by the learned FST in its consolidated judgment dated 12-5-1991 delivered in Appeal No,262 R)/89-Dr. Sh. Aleem Muhammad (appellant in C.A. 233/98) v. Government of Pakistan and 142 others, Appeal No,271 (R)/89-Dr. Abdul Hameed Qureshi (appellant in C.A.286(R)/89) v. Secretary Establishment Division and others, Appeal No,293 (R)/89 Akbar Hayat Khan (appellant in C.A. 287/94) v. Secretary Establishment Division and others, and several other appeals. This point had directly arisen earlier before FST in the case of Syed Ali Muqtada Wahidi v. Secretary Establishment Division (1984 PLC 546) which was decided as follows:-- "7. Adverting to the merits of the case we find that the most important point for the purpose of disposal of this appeal is whether the appellant is entitled to count seniority in the gradation list of the Deputy Secretaries with reference to 1st November, 1974 when he was promoted and appointed as Officer on Special Duty or with reference to 24th October, 1978 when he was formally appointed as Deputy Secretary to the Federal Government. It is first to be seen that subsection (4) of section 8 of the Civil Servants Act, 1973, provides that 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. Para. 8 of the Establishment Division O.M. Dated 12th April, 1976, whereby the Secretariat Group was reconstituted, also says that seniority of Deputy Secretaries in the Secretariat Group is to be determined from the date of continuous regular officiation as Deputy Secretary, or in a post in Grade-19, whichever is earlier. The appellant's case is that the posts of Officer on Special Duty and Deputy Solicitor to which he was appointed prior to his formal appointment as Deputy Secretary to the Federal Government, carried the same pay scale as admissible to the Deputy Secretary and were, therefore, to be treated in Grade-19 and since he was continuously officiating in Grade-19 post of Officer on Special Duty/Deputy Solicitor/Deputy Secretary with effect from 1st November, 1974 on regular basis, he was entitled to count seniority from the same date. The Establishment Division conceded that the seniority of the Deputy Secretary is determined from the date of continuous regular officiation as Deputy Secretary or to a post in Graee-19 whichever is earlier but contended that the posts of Officer on special duty and Deputy Solicitor were not in Grade-19 and, therefore, the appellant could not be given seniority from the date of his promotion as Deputy Solicitor. However, during the course of hearing Mr. A.H. Zuberi, Joint Secretary, representing the Establishment Division, conceded at the Bar that if this Tribunal came to the conclusion that the post of Officer on Special Duty/Deputy Solicitor/Deputy Secretary carrying pay in Grade-18 plus special pay of Rs,440 were notionally in Grade-19 or that the posts of Officer on Special duty and Deputy Solicitor held by the appellant on his promotion were in the same grade as carried by the Deputy Secretary to the Federal Government then the appellant was entitled to count seniority from 1st November, 1974."
' The Federal Government challenged the above judgment of FST in Ali Muqtada Wahadi's case before this Court in Civil Appeal No,670 of 1984 Establishment Secretary v. S.A.M. Wahidi, delivered on 13-10-1987. This Court upheld the judgment of FST in S.A.M. Wahidi's case, with these observations:-- "As regards rule of seniority (rule 8) it is provided that 'Seniority would be determined from the date of continuous regular officiation as Deputy Secretary or any post in Grade 19 whichever is earlier' .
The officiation of the respondent was admittedly in a post in Grade 19 or its equivalent. Therefore, a person can be given the credit of seniority without having officiated for a single day as a Deputy Secretary if he had done so in a post in Grade 19 or its equivalent. These two distinguishing features in the case of the respondent fully made out his right to claim seniority from a date earlier to his formal appointment as Deputy Secretary."
' The above view were reiterated by this Court while refusing leave to appeal in the case of Federation of Pakistan v. Roshan Ali Mangi (C.P.L.A. 220 of 1993) delivered on 22-6-1993, as under:-- "Mr. Roshan Ali Mangi, respondent herein, has been allowed to count his seniority from the date of his continuous officiation as Deputy Secretary in the Secretariat Group by the Federal Service Tribunal as his case was identical with the cases of Syed Ali Muqtada Wahidi and Muhammad Rafiq Asghar, who were allowed to do so.
2. Mr. Mumtaz Ali Mirza, learned Deputy Attorney-General, in support of petition, does not contest the finding of the Service Tribunal that the case of the respondent herein is identical with that of Syed Ali Muqtada Wahidi and Muhammad Rafiq Asghar and that he is, therefore, also entitled to count seniority from the date of his continuous officiation. His plea only is that as he had not agitated this claim earlier than 2-5-1991, the Service Tribunal erred in granting him relief, in these circumstances.
3. We do not agree.
4. In the first place it is not correct to say that the respondent did not agitate his claim before 2-5- 1991. He was doing so all along. Even, otherwise raising of such a technical plea does not behave a party like the petitioner, namely, the Federation of Pakistan and indeed is one which cannot be entertained by this Court in exercise of its jurisdiction under Article 212." --- Similarly, the learned FST in Appeal No,243(R) of 1988 filed by Javed Ahmd Joel (appellant in C.A. 285/95) upheld the contention that the ratio laid in S.A.M. Wahidi's case was applicable but did not grant the relief as during pendency of the appeal before FST the appellant, Javed Ahmed Noel was granted seniority by the departmental authority in accordance with the principle laid down in S.A.M. Wahidi's case. However, with regard to other reliefs claimed by Javed Noel in his appeal before FST the case was remanded on the request of the representative of Establishment Secretary. We are, therefore, of the view that the appellants in C.As. 233/95 (Dr. Aleem Mahmood), 285/95 (Javed Ahmed Noel), 286/95 (Dr. Abdul Hameed Qureshi) and 287/95 (Akbar Hayat Gandapur) are entitled to reckon their seniority respectively in the Secretariat Group as Deputy Secretary from the date they were granted Grade 19 in accordance with para. 8 of ,O.M.2/2/75-ARC dated 12-4-1976.
' The next question which requires consideration in the case is whether the respondents who were lateral entrants in Secretariat Group are entitled to count their seniority from the date of their original entry into the group or from the date they were re-inducted in the Seretariat Group as Deputy Secretary after their cases were approved by FPSC. It is an admitted position in the case that the cases of the inductees in the Secretariat Group through lateral entry, were reviewed by the Government under section 12-A of the Act and their appointments having being found not in accordance with the rules, they were either reverted or removed from service. Subsequently their cases were referred to FPSC and after approval by FPSC, they were re-inducted into service in the Secretariat Group. The contention of the appellants jointly is that the respondents' appointment through lateral entry in Secretariat Group having been found illegal in S.A.M. Wahadi's case by the learned FST which was upheld by this Court, they could not he retained in service and in any case, they could not claim seniority over appellants who were regularly inducted in Secretariat Group.
' The learned Deputy Attorney-General on the other hand, very vehemently argued that in May, 1981 on a summary moved by the Establishment for the President of Pakistan. The original summary floated by the Establishment Division, the President of Pakistan approved a proposal under section 23 of the Act which restored the original seniority position of lateral entrants in the Secretariat Group. The learned Deputy Attorney-General has placed before us the photocopy of the summary dated 2-12-1980 prepared by Establishment Division for the President of Pakistan. The original summary floated by the Establishment Division did not contain any such proposal. In fact according to the summary the cases of lateral entrants were divided in 3 categories. In the first category were the cases of those who were reverted/removed from the service after the finding of review board that their appointments were irregular. The second category consisted of those, whose appointments were found irregular but were not actually removed/reverted from service.
The third category consisted of those in whose cases, the Review Board was unable to take any decision and their cases were referred to FPSC. As the lateral inductees belonging to second category had an edge over those who belonged to first category in matter of seniority, as the second category continued in service in spite of a finding that their appointments were irregular, the Establishment Division in order to remove this anomaly made the following suggestion in its summary:-- "7. The issues of the case have been carefully examined in the Establishment Division. From the point of view of equity, both categories should get similar treatment in the matter of seniority. Since the seniority in respect of (a) has to be determined under section 8(3) of Civil Servants Act, 1973 i.e, from the date of approval by the competent Authority, as advised by the Law Division, it is proposed that in order to treat the two categories alike, all cases where the appointments were held irregular by the Review Board, the seniority of category (b) should also count from the same date. To give effect to this principle, the following proposals are made:-
(i) The seniority of the officers of category (a) (ii) who were notified as appointed should count w.e.f, the date of approval by the President (10 cases) as provided under the rules.
(ii) Officers of category (a)(i) who were notified as reinstated' (incorrectly, as now advised by the Law Division and officers of category (B) will be reduced in seniority to the extent of bringing them at par with officers at (i) above. This is provided under the amended section 12-A of the Civil Servants Act and is justified on the ground that their appointments were held irregular by the Review Board which were subsequently regularised on the recommendation of the FPSC as a matter of grace by the President (60+24=84 cases).
(iii) Officers of category (C) recommended by the FPSC for the same grade and same service group will their seniority from the date of the original appointments as under the rules, because their appointments were not held irregular by the Review Board but referred to FPSC only for the latter's opinion (53 cases).
(iv) Officers of category (C) recommended by the FPSC for lower grade or a service group different front the group in which they were inducted. Will get their seniority on the same principles as at (i) and (iii) (8( cases).
8. Approval of the President is solicited to the proposal made in para. 7 above."
' The COS to the President on the above summary of Establishment Division appended the following note and referred back the matter to Establishment Division:-- "9. Equity and justice demand that the following aspects may be kept in view in respect of the seniority of all officers inducted into service through the Lateral Entry Scheme:-
(a) The seniority of all those Lateral Entrants who have been approved for retention after review of their cases should remain unaltered. There appears no justification for them to lose original seniority once the Government has approved their retention.
(b) The inter se seniority of all the Lateral Entrants who have been approved for retention should also remain unchanged.
10. Since the Lateral Entry Scheme itself was irregular, the existing rules may be lacking in provisions to deal with the peculiar problems created by it. We should not hesitate to regularise the cases of those affected officers who have finally been approved for retention in service even if some Rules is to be amended so long as the amended Rules is uniformaly applied in all cases. These aspects may be examined."
' On a back reference by the COS, the Establishment Secretary added the following further suggestion in the original summary:- "11. With reference to the minutes recorded by the COS at para. 9 and 10, the question as to how the reinducted lateral entrants can be given retrospective seniority has been examined in the light of the rules 'pertaining to seniority. Two alternatives suggest themselves to deal with the issue:--
(i) Either section 8 of the Civil Servants Act, dealing with the seniority of civil servants, be amended to provide for the specific case of the reinducted/re-instated lateral entrants. OR
(ii) The case be dealt by invoking the powers of the President under section 23 of the Civil Servants Act, 1973.
12. Amendment to section 8 of the Civil Servants Act to merely accommodate the case of lateral entrants is not advisable for obvious reasons and is not recommended by the Establishment Division. The alternative is to invoke the powers of the President under section 23 of the Civil Servants Act, which reads as follows:-- "Nothing in this act or in any rule shall be construed to limit or abridge the power of the President to deal with the case of any civil servant in such manner as may appear to him to be just and equitable.
' Thus it is within the powers of the President under section 23 to approve the proposal as at para. 9 above.
13. In case the President is pleased to approve the proposal at para. 9 this may be done in exercise of the powers under section 23 of the Civil Servants Act.
14. The case of officers who were not considered fit for their original post but have been appointed in post of lower grade or a service group different from the group in which they were originally appointed is quite different and it is recommended that they should count their seniority from the date of their re-appointment.
15. President's approval is solicited to the proposal made in paras. 12, 13 and 14 above.
' The President approved the proposal given in paras. 12, 13 and 14 of the summary, on 17-5-1981.
Notwithstanding the approval of above proposal by the President, the notifications issued in respect of lateral entrants on their re-induction in service clearly stated that the competent Authority, has approved their appointment w.e.f, the date on which the officer was appointed after removal/reversion. The appellant in Civil Appeal No,233 of 1995 has placed on record 15 such notifications issued during February and April 1982. The learned D.A.-G. Has also placed on record copies of 3 such notifications issued after the approval of above proposal by the President in respect of 3 lateral entrants, Nazar Muhammad A. Shaikh, Muhammad Younas Khan and Dr. Kahlid Hassan Bukhari in January 1982. The language of all these notifications is identical and therefore, for the sake of reference, we reproduce here one of them relating to the appointment of Mr. Nazar Muhammad A. Shaikh, dated 17th January, 1982, produced by the learned D.A.-G. It reads as follows:-- "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION Rawalpindi, the 17th, January, 1982 NOTIFICATION ' No,1./12/79-Rev.1.--The competent Authority has been pleased to approve the appointment of Mr. Nazar Muhammad A. Shaikh as Deputy Secretary (Grade 19) in the Seretariat Group with effect from the date on which the officer was appointed after removal/reversion.
2. The Establishment Division earlier Notification No,4/1/79-AV, dated the 14th November, 1979, is amended to this extent.
(Sd.) (Abdul Haye), Deputy Secretary. Phone:67548 ' To ' The Manager, ' Printing Corporation of Pakistan Press, KARACHI Copy for information to:--
1. The CMLA's Secretariat, Rawalpindi.
2. The AGPR, Rawalpindi/Islamabad.
3. PS to Secretary, Establishment Division, Rawalpindi.
4. All Joint/Deputy Seretaries, Establishment Division, Rawalpindi.
5. Additional Secretary (1), Establishment Division., Islabamad.
6. Additional Secretary (Imp), Cabinet Division, Rawalpindi.
7. Deputy Secretary (Admn.), Cabinet Division, Rawalpindi.
8. Mr. Nazar Muhammad A. Shaikh. The President has been pleased to allow him the benefit of seniority under section 23 of the Civil Servants Act, 1973 w.e.f, the 14th February, 1975.
9. Director (PD), Establishment Division, Rawalpindi.
10. Sections E-3, 4 and 5, CP-1, 2, 3 and 4, PD-1, 2, 3 and 4 Litigation.
11. Section Officer (E-2). Copy of the notification should be sent to the officer at his latest address.
(Sd.) (Abdul Haye), Deputy Secretary. Phone: 67548"
' The learned Deputy Attorney-General has relied on the endorsement No,8 in the above notification in support of his contention that the lateral entrants after their re-appointment were entitled to claim seniority from the date of their original appointment. The Learned D.A.-G. Further contended that similar endorsements were made on all the notifications issued in respect of lateral entrants appointing them after removal/reversion. We have noticed that these alleged endorsements on the notifications allowed seniority to lateral entrants from 1973 and 1974 in some cases which was a date prior to formation of Secretariat Group and their induction therein. The learned D.A.-G. Conceded before us that the notifications re-appointing these lateral entrants in service published in the official Gazette, did not contain the endorsement relied by the learned D.A.-G. Be that as it may, we are unable to accept the contention of the learned D.A.-G. For the reason that the clear language of the notification could not be overridden by something written by way of endorsement while forwarding the copy of the notification to the addressee. It is not disputed before us that the notifications re-inducting the lateral entrants/respondents in these appeals were neither challenged by the lateral entrants/respondents nor by the appellants. We are therefore, of the view that the lateral entrants/respondents are entitled to count their seniority from the date they were appointed after removal/reversion in the Secretariat Group with the approval of competent authority. We may also mention here that the learned D.A.-G. Has relied before us on the approval of the President of Pakistan accorded on 17-5-1981 to the proposal of Establishment Secretary which according to him allowed seniority to the lateral entrants in Seretariat Group from the date of their earlier appointment. No such argument was raised on behalf of Government before the Federal Service Tribunal in the case of S.A.M. Wahidi's case which was decided on 20-12- 1983, nor this plea was raised before this Court in the appeal which was filed by the Government against the decision of FST in S.A.M. Wahidi's case which was decided on 13-10-1987. This 'plea was also not raised in any of the cases so far decided by the FST, copies whereof are available in the files of the above appeals. We are, therefore, not inclined to accept the contention of learned D.A.G.
' As a result of preceding discussion, Civil Appeal No,1313 of 1996 and Civil Appeals Nos.71 and 72 of 1995 are dismissed. Civil Appeals Nos.233 of 1995, 285 of 1995, 286 of 1995 and 287 of 1995 are allowed and the orders of Federal Service Tribunal impugned in these appeals are set aside. These cases are remanded to the Departmental Authority with the direction that appellants Dr. Aleem Mahmud, Javed Ahmed Noel, Dr. Abdul Hameed Qureshi and Akbar Hayat Gandapur be assigned seniority as Deputy Secretary in Secretariat Group from the date they started continuous officiation in a post in Grade 19 and subsequent action to follow accordingly. The respondents in these appeals who were inducted in Secretariat Group through lateral entry will count their seniority from the date their appointment was approved by the competent Authority after their removal/reversion from service. No order as to costs.