ROSHAN ALI MANGI (MEMBER).---The facts and law involved in these appeals are identical, we, therefore, propose to dispose of them by this single order.
2. Both the appellants M/s Abdul Khaliq and Dr. Irshad M. Pirzada, being aggrieved by the seniority circulated vide letter dated 11-6-1997 whereby their seniority was disturbed and their junior respondent No,4 was shown senior to them. They, therefore, preferred departmental appeals to which no response has been made so far. Hence these Appeals i,e, Nos.731(R) of 1997 and 732(R) of 1997 respectively.
3. The background of the case is that the National Tariff Commission, hereinafter referred to as N.T.C., advertised 7 posts of Deputy Directors (B-19) later on designated as Directors, to work in different fields. The Selection Committee interviewed the candidates and recommended the following on the basis of merits-- NAME POST MERIT RECOMMENDATIONS 1.Mr. Muhammad Abdul Khaliq Dy. Director (Cost) 75/100 Six advance increment recommended.
2.Mr. Abdul Khaliq Dy. Director (Cost)
(Appellant)50/100 3.Mr. M. Abbas Raza Dy. Director (Admn)
(Respondent No. 4)72/100 Relaxation in experience plus six advance increments recommended.
4.Mr. Zulfiqar A. Khalik Dy. Director (Chemical)73/100 Relaxation in experience recommended.
5.Mr. A Sattar Chandio Dy. Director (Engg) 57/100 Relaxation in experience recommended.
4. These recommendations were submitted to the Minister for Commerce for approval, although, according to appellants, the Chairman, NTC was competent. The Minister of Commerce observed that relaxation in most of the cases was required, therefore, he suggested to re-advertise these posts. Accordingly, the Chairman, N.T.C. ordered to re-advertise the posts.
5. The cases in which there was no relaxation involved, were issued appointment letters. As such the letters were issued to Serial Nos.1 and 2 on 13-6-1990 and the said candidates joined N.T.C. on 17-6-1990 and 30-6-1990 respectively.
6. Thereafter, the posts of following fields were re-advertised:-- Director (Economics) 2 Director (Chemicals) 1 Director (Engg) 1 Director (Admin) 1 Total: 5
7. The Selection Committee again interviewed the candidates on all Pakistan basis and only recommended Dr. Irshad M. Pirzada (merit 69/100) for appointment as Director (Chemicals). The Chairman, N.T.C. approved the appointment of Dr. Irshad M. Pirzada on 1-10-1990. The appointment letter was issued. Dr. Irshad M. Pirzada joined N.T.C. on 10-10-1990 as Director (Chemicals).
8. Thereafter a note was initiated on 10-10-1990 by the Secretary, National Tariff Commission to the effect that the posts of Director (Economics), Director (Engineering) and Director (Admn.) were advertised but no suitable candidates could be recommended. It was therefore, suggested not to advertise the said posts a third time, and to 'reconsider the candidates interviewed in the first batch to be appointed by relaxing the experience. Consequently, the following candidates were recommended.
Mr. Muhammad Abbas Raza Director (Admn) (respondent) No. 4).
Mr. Asif Shuja Khan Director (Engg).
9. The Chairman, N.T.C. agreed to the above proposals. The Secretary, N.T.C. however, instead of initiating a case for the relaxation of experience in the cases of above officers, ordered to issue the appointment letters (Annex.IV). Accordingly the appointment letters were issued to Mr. Muhammad Abbas Raza, respondent No,4 for the appointment as Director (Admn).
10. The N.T.C. vide office order dated 21-3-1995 (Annexure V), issued tentative seniority list of Directors seeking the observation/comments by 9-4-1995. In this list Mr. Muhammad Abbas Raza, respondent No,4 was shown senior to both the appellants against the provision contained in the Draft Rules, 1989 Mr. Abdul Khaliq (appellant) made representation against the said list on 9-4- 1995. The matter was referred to Establishment Division on 27-6-1995 to which the said Division made a reply on 29-10-1995. The Establishment Division's decision was that seniority is to be reckoned with effect from the date of induction (in order of merit, if there are more than one are selected in one batch). Respondent No,3, accordingly asked the Ministry to draw the seniority list in the light of Establishment Division's instructions. Accordingly, seniority was drawn vide letter dated 28-11-1995 as below:-- Mr. Muhammad Abdul Khaliq Director (Cost)
Mr. Abdul Khaliq Director (Cost) (appellant)
Dr. Irshad M. Pirzada Director (Chemicals) (appellant)
However, Ministry of Commerce held the following appointments as irregular:--
1. M. Abbas Raza Director (Admn) (respondent) No. 4).
2. Mr. Asif Shuja Khan Director (Engg). and the revised seniority list was issued on 16-1-1996.
11. Instead of getting their services regularised M/s. Asif Shuja Khan and M. Abbas Raza, respondent No,4, got themselves engaged in lobbying with the Minister. As a result the respondent No,4 was retained. The other person left the service. After lobbying, respondent No,4 made representation to the Minister on 8-6-1996. Ultimately his representation was considered by the Minister who decided the case by agreeing, to his ex post facto regularization of his services. Consequently in the light of the said regularization the seniority was changed and respondent No,4 was given seniority over and above the appellants vide letter dated 24-10-1996 as shown below:-- Mr. Muhammad Abdul Khaliq Director (Cost)
Mr. Muhammad Abbas Raza (respondent No.4)Director (Admn)
Mr. Abdul Khaliq (appellant) Director (Cost)
Dr. Irshad M. Pirzada (appellant) Director (Chemicals)
12. Mr. Abdul Khaliq appellant preferred a departmental representation on 31-10-1996 to take up the matter with the Ministry of Commerce. The Ministry of Commerce in turn referred the matter on 11- 3-1997 to Establishment Division. In response, that Division reiterated its earlier decision vide letter dated 29-10-1995. Instead of acting on the advice of Establishment Division the N.T.C. circulated the seniority list as advised by the Ministry of Commerce and new seniority list was circulated on 11-6- 1997 in which the respondent No,4 was shown senior to both the appellants.
13. The appellants submitted representations against the seniority list dated 11-6-1997 to the Chairman, N.T.C. and Secretary, Commerce on 12-6-1997 and 19-6-1997 respectively with a request to withdraw the said list but with no response.
14. The appellants have taken the following grounds:--
(i) Any relaxation needs the approval of the competent Authority.
(ii) The appointment of respondent No,4 was made without obtaining approval of relaxation from competent Authority which is violative of rules.
(iii) Circulation of tentative seniority on 21-3-1995 was violative of rules on the issue.
(iv) Regularization of respondent No,4, itself was violation of rules.
(v) The seniority awarded to the respondent No,4 was also violative the advice tendered by the Establishment Division.
(vi) Similarly the issuance of orders of new seniority on 11-6-1997 was also violative of N.T.C.
Employees Rules, 1995.
15. The respondent organization did not submit any comments. However, the respondent No,4 has filed the comments and has taken the following grounds:--
(i) That the appeal is time-barred and also is hit by proviso (a) to section 4 of the Service Tribunals Act, 1973 as no proper appeal has been made;
(ii) that it suffers from non-joinder of necessary party namely Mr. Asif Shuja Khan;
(iii) that seniority is not vested right of the appellant; (iv)that respondent No,4 was appointed as Deputy General Manager, Punjab Industrial Development Board on 13-10-1988 and served there up to 14-10-1990. He applied for a post of Director, however, the Commission considered him for the post of Deputy Director. He was called for interview. He got 72% marks and was assigned 2nd position in the order of merit, and was placed above the appellant;
(v) that he was offered the post of Deputy Director vide order dated 10-10-1990 and was appointed as such vide order, dated 17th October, 1990 by granting him six increments with the approval of Chairman, N.T.C.; (vi)that although no relaxation was required yet the Minister for Commerce who was the approving authority, as laid down in the Establishment Division's 0.M., dated 22nd April, 1989, relaxed the conditions and regualrised the appointment vide U.O. dated 24-10-1996 and consequently fixed his seniority above the appellants in view of the merit assigned by the Selection Board as per terms of rule 12 (ii) of the Draft Recruitment Rules, 1989. Under rule 31, the authority is empowered to relax the rule;
(vii) that respondent No,4 has more than 12 years' experience i.e,. graduation 10 years plus post M.B.A. experience of two years. He was already in B-19 under the Punjab Government He was taken on the basis of position assigned to him in the interview and as he secured 72% marks, as compared to 50% by Mr. Abdul Khaliq, 69% by Dr. Irshad Pirzada, appellants;
(viii) that no relaxation in length of experience was required in the first open advertisement, as such no relaxation in the langth of service was required in his case as he was already working in B-19 and had put two years of service as a confirmed officer in BPS-19 in the Punjab Industrial Board, Government of Punjab, when he has applied through proper channel; (ix)that respondent No,4 referred to rule 12 of N.T.C. Service Rules, 1989 relating to the seniority which says, the candidates of first batch will be senior to the candidates of the second batch and seniority of persons appointed by direct recruitment in one batch shall be fixed in accordance with order of merit. Record shows that one appellant (Mr. Pirzada) was not selected in the first batch; wrongly issued by misinterpreting the Establishment Division's advice vide Ministry of Commerce O.M. dated 28-11-1995, as under:--
(x) that the seniority list issued vide letter dated 16-1-1996, was
(1) Mr. Muhammad Abdul Khaliq Chishti, Director (Cost II).
(2) Mr. Abdul Khaliq, Director (Cost I).
(3) Dr. Irshad M. Pirzada, Director (Chemical).
(xi) Respondent No,4 rebutted if his appointment and one of Mr. Shuja Khan, were irregular, as alleged by the appellants. The Ministry of Commerce reviewed the whole position vide U. 0. dated 24-10-1996 and regularised the appointment of respondent No,4 by giving him ex post facto approval in relaxation of experience, as candidate of the first batch and determined the seniority as under:--
(1) Mr. Muhammad Abdul Khaliq Chishti.
(2) Mr. Muhammad Abbas Raza.
(3) Mr. Abdul Khaliq.
(4) Dr. Irshad M. Pirzada.
16.With these submissions, he prayed to dismiss the appeals.
17.We have heard the parties and perused the record. A copy of the summary, dated 3rd May, 1990 is placed on the file which reveals that after having advertised the 7 posts, a Selection Committee had interviewed the candidates and recommended the following candidates:-- S. No.Names Vacancy Marks obtained Regions Remarks
1. Mr. M. Abdul Khaliq DD(Cost) 75% Merit Six advance increment recommended
2. Mr. Zulfiqar A. Malik DD(Chem) 73% Punjab Relaxation in experience recommended
3. Mr. Abbas Raza DD(Admn) 72% Punjab Relaxation in experience plus six advance increments recommended
4. Mr. A. Chandio DD(Engg) 57% Sindh(R) Relaxation in experience recommended
5. Mr. Abdul Khaliq DD(Cost) 50% N.-W.F.P.
18. As none of the candidates could qualify on Economic side, the Selection Committee has recommended that both the posts be re-advertised. one each for Punjab and Sindh (U).
19. The summary was submitted to the Minister for approval who recorded the following note:-- "Please readvertise on a short term basis as in almost all the cases relaxation is required which would not do good to N.T.C. We have to have competent people."
20.Para.10 of the Summary reveals that where there were no relaxation involved, the appointment letters were issued. Accordingly, since no relaxation was involved in case of M/s. M. Abdul Khaliq and Abdul Khaliq, Deputy Director (Cost), their Notifications were issued. Thus out of seven, two posts were filled and remaining five were re-advertised. After interview, a summary was again submitted to the Minister probably on 30-8-1990. Para.16 of this summary shows that on Engineering side, two candidates appeared for interview, but neither of them could qualify. On Economics side, three candidates appeared but none qualified. Similarly on Administrative side, two candidates appeared but neither of them could qualify. On Chemical side, two candidates appeared and both qualified. Their merit position is given below:-- S. No.Names Marks obtained Region Experience
1. Dr. Irshad Pirzada (Ph.D) 69% Punjab 14 years against 12 years required
2. Mr. Farhan Nayyar 66% Punjab 12 years against 12 years required 21.Accordingly, Dr. Irshad Pirzada was appointed as Deputy Director (Chemicals). There is no mention whether Mr. Abbas Raza, respondent No,4, appeared or not. There is also no mention of those candidates who appeared but did not qualify on Administration side.
22.A note was initiated by the Secretary, N.T.C. on 10-10-1990, which is self-explanatory and is reproduced below: "RECRUITMENT OF DEPUTY DIRECTORS IN NTE-II EQUIVALENT TO BPS-19 The case of recruitment of 7 Deputy Directors was scrutinised in the room of Chairman on 8-10- 1990 Ex-Member Mr. Abdullah Akmal also participated in the deliberations, on special invitation.
Selection of 2 Deputy Director (Cost) was completed and appointment orders issued in June, 1990.
Selection of one Deputy Director (Chemical) was completed in August, 1990 and his appointment letter has already been issued.
2. Selection for the posts of Deputy Director (Engg) and Deputy Director (Admn) was also completed in June, 1990 and a summary sent to the Minister, but as in these cases relaxation of experience was involved, Ex-Minister Commerce desired that these posts be re-advertised.
Candidates for posts of Deputy Director (Economics) were also interviewed, but none could be selected. Hence all the vacant posts were re-advertised. This time also the response was very poor and none could be selected, neither on (Eco) side, nor on (Engg) side, nor on (Admn) side.
3. It was, therefore, decided that instead of re-advertising the posts for the third time which would be a wastage of time, it would be better if our recommenders on the first occasion are selected for appointment after granting them the required relaxation in experience.
4. Accordingly the Selection Committee selected the following candidates for appointment as Deputy Directors in NTE-II:- Name Subject Region Marks
(i) Mr. Asif Shuja Khan DD (Engg) Punjab 74/100
(ii) Mr. Abbas Raza DD (admn) Punjab 72/100
5. In the first summary the name of Mr. Asif Shuja Khan was dropped in favour of Mr. A.S. Chandio as Deputy Director (Engg) although he (i,e, Mr. Shuja) got 17% more marks, only in order to accommodate one candidate from Sindh. But now that the 2 posts of Deputy Director (Economics) lying vacant are being reserved for Sindh (R) and Sindh (U), the post can easily be given to Mr. Asif Shuja from Punjab.
6. If the Chairman approves the above recommendations, region-wise distribution of the posts filled in will be as under:-- Merit M. Abdul Khaliq DD (Cost)
Punjab (i) Dr. Irshad Pirzada DD (Chem) (ii) Mr. Asif Shuja DD (Engg) (iii) M. Abbas Raza DD (Admn)
N.-W.F.P. Mr. Abdul Khaliq DD (Cost)
7. Two posts of Deputy Director (Economics) which are lying vacant will be re-advertised, one to be given to Sindh (R) and one to Sindh (U).
8. Chairman may please approve recommendation in paras. 4 and 7 above. (Sd.) (ABDUL HAYE), Secy/NTC 10-10-1990 Chairman. (Sd.) 15/10 Secretary.
9. Please issue appointment letters.
Admn Officer. (Sd.) 16-10-1990."
23. It comes out from the above note that respondent No,4 had appeared in the first batch but due to the want of relaxation, was not approved by the Minister. Subsequently, the Minister had advised to re-advertise the posts. However, probably respondent No,4 did not appear in the second batch and through note dated 10-10-1990, his case was recommended to the Chairman, NTC to appoint him though his case involved relaxation. This clearly shows, that the stand of the respondent No,4, that no relaxation was involved, is not correct. Even after his securing 72% marks, he was not recommended by the Minister to appoint him along with others and the Minister had advised to re- advertse the posts. This very note indicates that he must have exercised influence despite the fact that he needed relaxation in his experience. The appellants were cleared and their appointments did not need any relaxation, therefore, they had been appointed earlier than respondent No,4. This stand gets strength from the letter of his regularization by the Minister. If the respondent No,4 had any grievance when he was selected in the first batch, he should have agitated while getting his experience relaxed, for re-issuing his letter of appointment with effect from the date the other candidates of first Batch were issued appointment letters. But he did not agitate against that.
Actually his appointment was irregular as correctly pointed out by the Ministry of Commerce, as he needed the relaxation of experience. However, instead of getting it relaxed, he got his appointment letter issued and later on the required experience got relaxed from the Minister. As such he cannot agitate it now at this stage.
24. When the question of seniority arose, the seniority was drawn on the basis of date of regular appointment, as required under the rules. In this regard the advice of the Establishment Division was obtained. Accordingly following seniority was fixed on the basis of regular appointment vide O.M. dated 28-11-1995 :
1. Mr. Muhammad Abdul Khaliq Director (Cost)
2. Mr. Abdul Khaliq Director (Cost)
(appellant)
3. Dr. Irshad M. Pirzada Director (Chem)
(appellant)
25.Ministry of Commerce, held the following appointments as irregular and asked the N.T.C. to initiate a case for regularization of their services:---
1. Mr. Asif Shuja Khan Director (Engg)
2. Mr. M. Abbas Raza Director (Admn)
(respondent No.4)
Accordingly a revised seniority list was issued on 16-1-1996 as under:--
1. Mr. Muhammad Abdul Khaliq Chishty Director (Cost-II).
2. Mr. Abdul Khaliq, Director (Cost-I).
3. Dr. Irshad M. Pirzada, Director (Chem).
26. In this list the name of Mr. Abbas Raza, respondent No,4 was not shown as his appointment was not regular. He, therefore, used influence on the Minister and got his relaxation of experience giving it ex post facto approval vide U.O. No,5(5)/95-Admn. IV/III, dated 24-10-1996. This very fact itself is evident that he needed relaxation in the experience, which the respondent No,4 denied. Thus, the stand of respondent No,4 that there was no need for relaxation of experience, is groundless.
27.Even otherwise, the impugned seniority list circulated vide O.M. dated 11-6-1997 indicates that the date of appointment of respondent No,4 as 15-10-1990 as against the appointments of the appellants namely M/s. Abdul Khaliq and Dr. Irshad M. Pirzada, were given as 30-6-1990 and 11-10- 1990' respectively. It clearly proves that the appointment of respondent No,4 was latter than the two ,appellants. In this connection it may be clarified that though the relaxation was allowed but it cannot go beyond the date of actual appointment which was 15-10-1990, which shows that he was junior to the appellants. Even otherwise the respondent No,4 himself admitted in para. V of his comments that his appointment was regularized vide U.O. dated 24-10-1996 by granting ex post facto approval. This clearly shows that his appointment was irregular.
28.Moreover, when the posts were re-advertised, it means that respondent No,4 was not approved for appointment in the first batch, otherwise there was no need to re-advertise his post also.
In these circumstances, he cannot be held appointee of the first batch and thus cannot claim seniority over those who were appointed in the first batch or later on.
29.The respondent No,4 relied upon the Draft Rules, 1989 which did not see light of the day as such had no legal backing behind it and those rules were not applicable. Under such a situation, the Government Seniority Rules would apply. Under these Rules, the seniority is to be reckoned from he date of regular appointment in the post. As such we repel this argument.
30.Keeping in view the above facts, we are of the considered view that both the appellants are senior to respondent No,4, since their appointments were made on regular basis earlier to respondent No,4. As such respondent No,4 had no claim to get seniority over the appellants. We, therefore, accept both the appeals (Appeals Nos.731-R/97 and 732/R of 1997 and declare the appellants senior to respondent No,4, and direct the respondent Department to correct the seniority list, within a period of one month. Order accordingly.
31.No order as to costs. Parties be informed.