ABDUL HAMEED KHAN KHATTAK (MEMBER).---By means of this appeal the appellant has called in question the Notification No,8-9/95- Estt/Emig.I, dated 8-8-1998 (Annexure-P) reverting him from the post of Director (BPS-19) to that of Deputy Director (BPS-18) and the order contained in communication Letter No, 8-9/95-Estt/Emig. I, dated 23-10-1998 (Annexure-R) whereby his departmental appeal was rejected.
2. Shortly stated the facts to be gathered from the Memo. of Appeal, paradise comments and the documents annexed thereto are that the appellant joined service in the Labour, Manpower and Overseas Pakistanis Division (the then Labour and Local Bodies Division) on 3-8-1975 as a Research Officer in BPS-17 after having been appointed against the said post on the recommendations of FPSC (Annexures A and B). Subsequently after having been selected and recommended by FPSC on 10-10-1975 (without any break In service), the appellant was offered appointment against the post of Assistant Director (BPS-17) in the Bureau of Emigration and Overseas Employment which he accepted and joined on 27-12-1975 (Annexures C, D and E). Respondent No, 3, Mr. M. Sarwar Nasim, joined the Bureau of Emigration and Overseas Employment on 20-12-1975 on transfer from the Provincial Government of the Punjab where he was serving as a temporary Vocational Guidance Officer having been appointed as such on 21-3-1975. Appellant of late came to know that in an earlier Appeal No, 111(R) of 1980 filed by M. Anwar Butt, the then Deputy Director (BPS-18) wherein he had claimed seniority over respondent No, 3, this Tribunal had held that the seniority of M. Anwar Butt shall reckon with effect from 1-10-1975, the date on which he was recommended/nominated by FPSC for appointment against the post of Assistant Director (BPS-17) in the Bureau and it was further held that M. Anwar Butt shall rank senior to respondent No,3 both in grade of Assistant Director (BPS-17) as well as in the post of Deputy Director (BPS-18) (copy of the said judgment is Atmexure-F). The present appellant asserts that the appointment and induction of respondent No,3 into the Bureau was illegal and void ab initio as in view of section 2(1)(B)(i) of the Civil Servants Act, 1973, Provincial Government employees were excluded from the definition of civil servants and as such could not hold a civil post under the Federal Government in the first place, letting alone assigning them seniority over properly recruited civil servants of their Federal Government (i,e, FPSC nominees). This opinion was expressed in an Establishment Division's U.O.No,2/13/80-D-II, dated 22-1-1981 which was also referred to in the above judgment of this Tribunal (copy of the said U.O. being Annexure G). Appellant further, maintained that the facts of abovementioned case of M.
Anwar Butt were identical and similar to that of the appellant as he happened to be a batch mate of appellant and both were nominees of FPSC for appointment to the post of Assistant Director (BPS-17) on 1-10-1975. Appellant had made a representation in this regard against respondent No, 3 and others much prior to rendering judgment of this Tribunal in Appeal No, 111(R) of 1980 but to his bad luck his such representation was turned down on 8-8-1978 (Annexure H & I). Appellant claimed that as a. consequence of the above judgment rendered by this Tribunal in Appeal No, 111(R) of 1980, the present appellant should have also been benefited by declaring him senior to respondent No, 3 by the respondent Ministry as was so held in 1996 SCMR 185 but the respondent-Ministry never cared to extend the benefit of the ratio pf the above said judgment to the appellant by revising the seniority list. Subsequently respondent No,3 as well as the appellant were promoted to Deputy Director (BPS-18) but such promotion of Respondent No, 3 was prior in time to the appellant and respondent No,3 was later on promoted to the post of Director (BPS-19). It was only on 22-1-1998 that the appellant was promoted to the post of Director (BPS-19) with immediate effect against a deputation vacancy subject to reversion as Deputy Director on the return of original incumbent of the post (M. Sarwar Nasim, Director, present Respondent No,3) from foreign posting and a Notification dated 3-2-1998 was also issued in the same terms (copies of O.M. and Notification being Annexes J & K). Appellant made a representation (Annexure L) against the above said Notifications with a prayer for being entitled against a regular vacancy instead of a deputation vacancy but the same remained responded. Yet another Memorandum dated 17-7-1998 was issued whereby the appellant was transferred from Lahore to Islamabad for being adjusted against the post of Director (BPS-19) presently vacant as Mr. Rashid Mughal, Director was availing Ex-Pakistan leave till 31-8-1998 and it was further stated therein that the Bureau may be advised to take the case of the appellant with Establishment Division for adoption of the said officer in any Ministry/Division in BPS-19 before the joining of Mr. Rashid Mughal, Director and as a consequence, the Bureau posted the appellant at Islamabad Headquarters on 17-7-1998 (Annexures-M&N) and the appellant assumed the charge accordingly and the Notification dated 6-8-1998 is Annexure "0".
While he was serving as Director (BPS-19) as aforesaid, the Ministry of Labour, Manpower and Overseas Pakistanis, issued the impugned Notification dated 8-8-1998, whereby appellant was reverted to the rank of Deputy Director (BPS-18) with immediate effect as the original incumbent of the post (Respondent No, 3) had joined the said post in the Bureau after being relieved from his foreign posting in C.W.A., Office London (Annexure-P). Appellant made representation against the said Notification on 1-9-1998 (Amnexure-Q) and in that representation appellant once again raised the issue of seniority in the light of decision of this Tribunal pronounced in aforementioned Appeal No, 111(R) of 1980 and he also sought many other reliefs as detailed in para. 17 of the memo. of appeal but his such representation was turned down on 23-10-1998 (Annexure-R) hence the appellant preferred the present appeal before this forum, making following prayers therein: "(i) Set aside the impugned orders issued by the Respondent Ministry captioned in the heading of this appeal; (ii)order the restoration of the seniority of the appellant over respondent No, 3 pursuant to the ratio laid down in this Hon'ble Tribunal's judgment dated 22-3-1982 given in Appeal No, 111 (R) of 1980; (iii)order the appointment/promotion of the appellant to the post of Director (BPS-19) against a regular vacancy in the Bureau against, if necessary, the post of respondent No, 3 by accommodating him against a leave vacancy; (iv)pass any other order/direction deemed just and fit in the circumstances of the case in the best interest of justice.
(v)Costs may also be awarded in favour of the appellant and against the respondents."
3. Respondents hotly contested the appeal by controverting the above assertions by filing paradise comments. The objection of appeal being barred by time was also raised. Precisely the stand taken by the respondents was that no doubt appellant was recommended by FPSC for direct appointment as Assistant Director in BPS-17 (he was appointed by direct recruitment in 1975) on 22-8-1975 (Annexure-A of the appeal) and respondent No, 3 was appointed against transfer quota of 1975 but according to rules (copies of which are annexed as R/2, R/3, R/3-1 and R/4 available with parawise comments) respondent No,3 was legally ranking senior to the appellant as Assistant Director (BPS-17) and for that reason he was assigned seniority in the seniority list of Assistant Directors circulated on 10-7-1976 (Annexure-R/7) and final seniority list of Assistant Directors circulated on 29-4-1978 (Annexure R/3). It was also the stance of the respondents that respondent No,3 having been shown senior to the appellant in the said two seniority lists of 1976 and 1978, it was incumbent upon the appellant to have assailed the same by bringing representations within the period of 14 days if he so felt aggrieved thereof but the appellant, on the contrary made representation for the first time in July, 1978 (Annexure H) which was certainly time-barred and it was rejected on 8-8-1978. In this context the objection of present appeal being barred by limitation was also raised as the appeal before the Tribunal could be preferred within 30 days of rejection of his representation on 8-8-1978 but the present appeal having been made on 14-12-1998 (after 20 years) was hopelessly time-barred. The respondents fully supported the impugned Notification and orders being lawful.
4. Arguments heard, record perused.
5. The thrust of arguments of the learned counsel for the appellant was mainly on the judgment rendered by this Tribunal in Appeal No, 111(R) of 1980 referred to above, decided on 21-3-1982 whereby M. Anwar Butt, a batchmate of the appellant, was held and declared to be senior to respondent No,3 and such seniority of M. Anwar Butt was to reckon with effect from 1-10-1975 so in view of the ratio of decision propcsinded in 1996 SCM R 1185, according to the learned counsel, the appellant was justified to claim the benefit of being senior to respondent No, 3 since 1-10-1975 on the score of such judgment of this Tribunal as so far as their inter se seniority of appellant and Respondent No,3 was concerned, the criteria for reckoning the same stood settled once for all by the judgment of this Tribunal, given in Appeal No, 111(R) of 1980. We have given thoughtful consideration to this aspect of the matter but do not feel inclined to be impressed by such submissions as the case of the appellant seems to be dissimilar to that of M. Anwar Butt as admittedly M. Anwar Butt had already been appointed as Assistant Director on ad hoc basis since 1-3-1975 and it was for this reason that this Tribunal ordered his seniority to be reckoned with effect from 1-10-1975, the date on which he was recommended by FPSC in consonance with rule given in para. A (iii) (a) of the "General Principles of Seniority (ESTACODE) which is reproduced as under: "If a person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation by the Central Public Service Commission."
But the present appellant was never appointed as Assistant Director on ad hoc basis and as such he was not eititled to be given seniority under para. A (iii)(a) (ibid) with effect from 1-10-1975 i,e, the date on which he was recommended by the FPSC rather the seniority of the appellant was required to be reckoned in accordance with the seniority rules notified in Establishment Division's Notifications dated 19-3-1977, 29-4-1978, 1-10-1980 and 28-2-1993 (Annexures R/2, R/3, R/3-1 and R/4) i,e, the appellant who was appointed through direct recruitment on 27-12-1975 as Assistant Director to rank junior to respondent No, 3 who was appointed against transfer quota on 20-12-1975 in the same year. Even according to rule A (iii) (b) of the 'General Principle of seniority" (ESTACODE) the appellant who was not already holding the post on ad hoc basis was entitled to seniority in BPS-17 from the date of joining of the post on 27-12-1975 if having been recommended by the FPSC whereas respondent No, 3 rank senior to him as he had joined earlier on 20-12-1975. At the cost of repetition it may be stated that appellant was appointed on direct recruitment and respondent No, 3 on transfer quota basis hence seniority referred to in para. 3 of Annexure-G of appeal was not to be made applicable rather a seniority was to be determined as provided in para. 8(2) of the Civil Servants Act, 1973, seniority should be determined as prescribed and in this case seniority list has been prescribed in Establishment Division's Notifications as Annexed R/2, R/3, R3-1 and R/4 and according to them persons appointed by transfer shall as a class stand senior to those appointed in that year by promotion or by direct appointment, thus, on the score of these legal provisions, respondent No, 3 stood senior to appellant.
6. Another objection was also raised With regard to the very appointment of respondent No, 3, being illegal as, according to the learned counsel for the appellant, in view of provision of section '2(1)(B)(i) of the Civil Servants Act, 1973, Provincial Government employees were excluded from the definition of "civil servant" and as such could not hold a civil post in the Federal Government in the first place, not to speak of assigning them seniority over nominees of FPSC in the Federal Government as so expressed in Establishment Division's U.O. No,2/13/80-D-II, dated 22-1-1981 (Annexure-G). This contention seems to be devoid of force. We are, however, of the view that the definition of "civil servant" given in section 2(1)(B)(i) of Civil Servants Act, 1973, relates to an employee on deputation with the Federal Government whereas respondent No, 3 was not on deputation to Federal Government. It was nowhere provided that a Provincial Government employee could not hold a civil post in the Federal Government, rather it has been clearly shown in para 4 of the Bureau Rules, 1974 (Annexure-R/1) and at para. (c) of Labour Ministry's letter dated 23-10-1998 (Annexure-R/5) that exployees of Provincial Government (holding of post in the same grade in which post exists) could be appointed in the Federal Government. Respondent No,3 was holding a civil post in connection with the affairs of Punjab Province, thus, he was a civil servant as per definition available in section 2(1)(b) of the Punjab Civil Servants Act, 1974, which reads as under: "Civil servant means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province."
7. We may also add here that it seems too late in the day for the appellant to assail the very appointment and induction into the Bureau of Respondent No, 3, (which was effected in 1975) by means of the, present appeal, preferred as late as 14-12-1998. We may also point out that the appellant designedly suppressed the exact time/period when the judgment in Appeal No, 111(R) of 1980 came into his knowledge as at the beginning of first line of para. 5 of memo. of appeal he used the words "appellant of late came to know", but even if this alleged late knowledge of the appellant is taken to be gospel truth, his case not being at par with that of M. Anwar Butt, he could not be allowed to reap the benefit of the said decision of this Tribunal as an elaborate discussion has already been made by us in supra paras.
8. As the representations of the appellant were turned down by the respondents on 8-8-1978 against the seniority list in question where after appellant did not assail those seniority lists and rejection orders before this Tribunal promptly and within stipulated period rather he chose to challenge the same 20 years thereafter without any reason or rhyme, thus, the said seniority lists had attained finality and could not be made subject-matter of a service appeal with an inordinate and unexplained delay of 20 years.
9. The upshot of above discussion is that the appeal being sans merit is hereby dismissed by leaving the parties to bear their own costs.
10.Copies of this judgment be sent to all concerned through registered post.