NOOR MUHAMMAD MAGSI (MEMBER).---Since both these Appeals bearing Nos.1145(R) and 1146(R) of 1998 involve similar and identical issue, we therefore, propose to dispose them of by this consolidated judgment.
2. The brief facts of the case are that appellant Mehtab Rasheed Rana was appointed as regular stenographer in the Ministry of Culture and Supports w,e,f, 9-10-1989 whereas the appellant S.H.
Qamar Rizi, was appointed as regular stenographer in the Ministry of Women Development w,e,f, 10-2-1990. Both of them were declared surplus as a result of economy cut from their respective departments and they joined the C.B.R. on 25-11-1993 and 5-10-1993 respectively. Both the appellants are aggrieved by a provisional seniority list dated 19-6-1998 whereby they were assigned seniority from the date of joining the C.B.R. and their previous service has not been counted towards their seniority. After exhausting departmental remedy, they came to this Tribunal by way of present service appeals under section 4 of the Service Tribunals Act, 1973 which have been filed separately by each of the appellants on 26-12-1998.
Learned counsel for the appellants has argued the case and stated that being declared surplus, the appellants were entitled to count their seniority from the date of their regular appointments as stenographers in their parent departments but on the contrary to the rules, they have wrongly been given seniority from the date of joining the C.B.R. instead of date of their regular appointment as Stenographer in their parent departments. Learned counsel has taken the ground that the appellants being declared surplus within the meaning of rule 3(3) of the Civil Servants (Appointment. Promotion and Transfer) Rules, 1973, and after absorption in the C.B.R., they are considered to be transferred entitling them to count their seniority from the date of their regular appointments as Stenographers i,e, 9-10-1989 and 10-2-1990 respectively. In support he also relied upon the judgment of this Tribunal already given in Appeals Nos. 876 and 877 (R) of 1997, copy of which is available at Annexure-A to the appeals and he prayed for the relief accordingly.
4. Objections have also been filed by the respondents' Department on behalf of respondents through their learned counsel Mr. Muhammad Aslam Uns, Advocate. They have resisted the grounds of appeal by written objections and their learned counsel argued that both the appellants were absorbed in the C.B.R. under rule 3(3) of Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973 which does not allow them seniority with effect from the date of appointment in previous departments and in support he has quoted the relevant extract of the said rule in written comments. Relying on the Establishment Division's O.M. dated 12-9-1994, it has been stated that this Q.M. provides principle under which inter se seniority of surplus employees viz-a-viz those already holding the post is to be reckoned from the date of absorption/appointment in the new post/cadre/service. As such the appellants have been assigned seniority; from the date of appointment/absorption in the C.B.R. in accordance with rule 4 of Civil Servants Seniority Rules, 1993 and as further clarified vide Establishment Division's 0.M. dated 12-9-1994 and 30-5-1998.
However, they ranked senior to all Stenographers promoted/appointed against direct quota during the year 1993 on the basis of criteria given in para. 2(ii) of the Establishment Division's U.O. dated 20-5-1998. The respondents have also produced copy of unreported judgment of the Supreme Court in C.Ps. Nos.57 and 58 of 1998 in support of their contentions.
5. We have heard the arguments and perused the relevant rules/law op the subject.
6. It is now settled for all that seniority counts from the date of regular appointment. The relevant rule 4 of the Civil Servants (Seniority) Rules, r1993 is reproduced for ready reference:- "4. Seniority on appointment by transfer.---Seniority in a service, cadre or post to which a civil servant is appointed by transfer shall take effect from the date of regular appointment to the service, cadre or post:--
(a) persons belonging to the same service, cadre or post selected for appointment by transfer to a service, cadre or post in one batch shall, on their appointment, take inter se seniority in the order of their date of regular appointment in their previous service, cadre or post; and (Underline is for emphasis)
(b) persons belong to different services, cadre or posts selected for appointment by transfer in one batch shall take their inter se seniority in the order of their date of regular appointment to the post which they were holding before such appointment and, where such date is the same, the person older in age shall rank senior."
7. The appellants were declared surplus and they were disturbed due to the state and policy of the Government in which they have no say whatsoever. Placement of a civil servant in a pool confronts him with many inconveniences such as financial, physical and social etc. It also adversely affects his kith and kins. A situation can be imagined wherein a civil servant if aspiring for transfer from one post, grade or cadre to another such post, grade or cadre, he looses his seniority and legally is required to be placed at bottom of the new post, grade or cadre, as the case may be, but it is not like that in the instant appeals. The history of the Surplus Pool, can be traced back as per the Supreme Court's judgment in PLD 1991 SC 514 and according to it an austerity measure was adopted in the budget year 1979-80, pursuant to the directive of the President of Pakistan which thereby resulted in reduction of posts in the Departments and Division. The second such measure necessitated reduction in staff in various departments etc. was enforecment of the Metric System of weights and measures and to protect interest of the surplus pool staff, the following 'measures were adopted: "g The absorption/appointment of such Suplus Pool persons who were holding regular posts shall not be treated ad hoc." "h The previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post, if absorbed in an equivalent post and their pay shall be fixed under normal rules in consultation with Audit Finance Division."
It was also decided that "the previous service" of the surplus staff in question should also count towards seniority in the grade concerned, in office to which they had been transferred.
8. Another occasion for the same exercise arose when following the Constitution of 1962, reorganization of the Central Governments took place. The detailed instructions appear at Serial No,31 at page 267 of 0 & M Establishment Manual Vol. III and with regrad to seniority, the following provisions was made in sub-clause (iii) of clause. (3).
"Their seniority in a grade vis-a-vis, the Provincial Government servant in that grade shall be determined with reference to their respective dates of continuous appointments to that grade."
Yet another occasion for such exercise arose in 1971 with regard to the employees coming from East Pakistan and autonomous bodies who were on deputation to the Federal Government from 16-12-1971, and the question of the Federal Government Employees recruited to Zonal/regional basis in the department of Federal Government located in East Pakistan, has been under consideration of the Government for some time past.
9. It has now been decided that: "Such employees may be allowed to count their services rendered in former East Pakistan towards seniority in equivalent grades held by them under the Federal Government. (Serial No,162 ESTACODE Page 158, 1993 Edition, 0. M. No,2/28/72-RC (Estt), dated 16-4-1978."
10.An incumbent cannot be legally deprived of his right or for that matter continuous past service rendered in an earlier department/office which stood abolished or down-sized, without any fault of such incumbent. This Tribunal has already given two judgments and discussed in detail the principles governing the question of determination of seniority of a surplus Civil servant on his adjustment/absorption. Decision of this Tribunal in Appeal No,175-T of 1998 was upheld by the Hon'ble Supreme Court in C.P.L.A. No, 1212 of 1998 wherein it was held: "The judgment impugned in this petition in our view is based on correct application of principles governing the question of determination of seniority of a surplus civil servant on his adjustment/absorption, therefore, the same does not suffer from any illegality."
The other judgment of this Tribunal was passed in Appeals Nos.876 and (R) of 1997 wherein this question for determination of seniority has been discussed in detail.
11.The appellants in the instant appeals were admittedly declared surplus and absorbed in the C.B.R. under rule 3(3) of the Government Servants (Appointment, Promotion and Transfer) Rules, 1973. In their parent departments i,e, Ministry of Culture and Supports and Ministry of Women Development, respectively the appellants Mehtab Rasheed Rana and S.H. Qamar Rizvi, were working as regular Stenographer w,e,f, 9-10-1989 and 10-2-1990, it would be unjust to deprive them of the benefit of their previous service rendered in the same cadre on regular basis. We have also noticed that none of the individual respondents who are likely to be adversely affected has approached this Tribunal, neither they have filed any objection nor attended the proceedings.
Besides it was also not disputed that there was no break in the service of surplus civil servants up to the date of their absorption in the C.B.R.
12. Pursuant to the above discussion and findings of this Tribunal as well the Humble Supreme Court, we accept these appeals and direct that the appellants may be given a suitable place in the seniority list from the date of their regular appointment as Stenographers in their previous departments.
13. No order as to costs. Parties be informed.