MUHAMMAD RAZA KHAN (MEMBER).---The appellant is presently employed as Survey Officer in B- 16 with effect from 22-3-1985 on regular basis. He appears at serial No, 5 of the seniority list of Survey Officers as on 1-1-1995. The respondent No, 1 issued order on 8-2-1995 whereby the respondent No, 3 was transferred from the cadre of Assistant Manager to the cadre of Survey Officer by change of designation. There was a stipulation in the said order that the respondent No, 3 will reckon his seniority with effect from 10-4-1985 i,e, the date of his promotion to B-16. This phrase of reckoning seniority in the new cadre with effect from the promotion in the previous cadre aggrieved the appellant who filed a departmental representation and thereafter, he has moved the present service appeal.
2. The respondents contested the appeal by written objections wherein, beside the question of limitation, the appeal was resisted on the main ground that the conduct of the appellant was unsatisfactory and the respondent No, 3 being foreign trained officer in aerial photography was the only appropriate choice to replace another retiring officer and, therefore, the respondent No, 3 was transferred to the cadre of Survey Officer by change of designation and since the transfer order was passed in public interest, without any benefit to the respondent No, 3, therefore, he was allowed to reckon his seniority from the date he was promoted to B-16 as Assistant Manager.
3. So far as unsatisfactory performance of the appellant is concerned that is not a point in issue in this case. He was shown at serial No, 5 of the seniority list and he has been holding the post of Survey Officer for almost 10 years. It appears that various warnings were issued to him and certain remarks were recorded in his A.C.R. but the seniority of a civil servant A could not be disturbed merely on the observations in the A.C.R. and issue of warning letters.
4. On the point of limitation it can be observed that the impugned order was issued on 8-2-1995 which was implemented on 2-4-1995 and the appellant filed an application on 13-4-1995 with the prayer that his seniority position may not be disturbed and the fresh entrant to the cadre may be placed at the bottom of the list as per practice in the department. Although the application dated 13-4-1995 was not decided directly but a letter was addressed on 14-6-1995 to the officer in charge of the appellant who had earlier forwarded his application. This letter does not speak about the rejection of the application; however, the change of designation of the respondent No, 3 in public interest was clarified. Thereupon, the appellant filed a detailed departmental appeal/representation on 26-6-1995 and on failure to receive response within the statutory period, the appellant has moved the present appeal. Thus, the appellant has vigilantly pursued his remedy and he has never been silent over what was happening in the cadre which might adversely affect his future career, therefore, there is no delay in filing the appeal.
5. The main issue in this case concerns the fixation of seniority of civil servant on transfer from one cadre to another cadre. The general principles of seniority, as contained in the ESTACODE, has classified two types of transfers, the one based on the option and desire of the civil servant and the other in public interest. It was provided that:- "Seniority on transfer from one office to another The instructions in the foregoing paragraphs regulate the position of a deputations in his parent office. As regards his seniority in the office to which he is transferred, it should be determined in the following manner:-
(a) When it is open to the person concerned to accept or refuse an offer of appointment in another office, he should count his seniority in the new office from the date of his transfer to that office.
(b) When a person is compulsorily transferred to another office as a result of conscription, or along with the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office."
6. It appears that the order dated 8-2-1995 providing for reckoning of seniority with effect from 10- 4-1985 i,e, the date of his promotion to B-16 was based on the above quoted principle of ESTACODE.
Keeping in view the said provision a number of transfers were ordered in public interest allowing the retrospective reckoning of seniority in the new cadre and several matters were agitated before the Tribunals and the Courts where the effect of transfer with or without the application/option/choice of the employee concerned was examined minutely. However, by the introduction of Seniority Rules, 1993, the said provision contained in General Principles of Seniority stood repealed as per rule 7 read with Rule 4 thereof, Rule 4 lays down:-- "Seniority in 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/post."
7. Therefore, the above said provision of choice or public interest stood repealed by Rule 4 quoted hereinabove. The philosophy of the said rule was that a person already serving in a particular service or post for certain period of time matures his seniority position with the expectation for further promotion. In case of the principle of reckoning seniority from the retrospective date in the parent department, the employee of the new department will suffer irreparably and such provision might be applied with malice and to the detriment of the people already serving in a particular cadre. Thus, with the enforcement of the Seniority Rules, 1993, the distinction and categorization was removed and it was provided that the seniority will be fixed from the date of regular appointment in a particular service/cadre or post. Moreover, under section 8 of the Civil Servants Act, it was provided that the seniority of the civil servant shall be determined or reckoned as may be "prescribed" and by clause (f) of section 2(1) of the Act the term "prescribed" was defined to be the rules under rule-making authority as vested in the President or any person authorised in this behalf in accordance with section 25 of the Act. Therefore, Seniority Rules, 1993 were enforced under the powers vested under section 25 read with section 8 of the Act, and therefore, these rules override the Administrative Instructions as contained in the ESTACODE under the general principle of seniority.
8. The learned counsel for the respondents relied on PLD 1974 SC 899 and 1995 PLC (C.S.) 273 and argued that although the rules provided for filling of post by promotion, direct appointment or by transfer but when a person is transferred from another cadre it should not be to the detriment to the civil servant already working for a long period in the said cadre. The competent Authority can certainly grant such person any benefits as it wishes in the interest of public service but while granting benefit to one employee, the vested rights of others cannot be infringed. We agree with these arguments and have to do hold that the position of seniority of the appellant cannot be affected by the change of designation of the respondent No,
3. The respondent-department can give extra financial benefits to the respondent No,3, if so desired, and he can be treated to have retained then in his parent cadre, however, the seniority of person already in the cadre cannot be disturbed.
9. As a result of the above discussion, the appeal is accepted and the impugned order is set aside.
No order as to costs. Parties be informed.