GULBAZ KHAN (CHAIRMAN).---Hameed Akhtar Niazi appellant, joined Pakistan Military Lands and Cantonment Service on the basis of result of competitive examination held in June, 1960. He proceeded on study leave to USA in 1967 and obtained Master's Degree in Public Administration from Maxwell School of Public Affairs and Citizenship, Syracuse University. After his return from USA, he served Military Land and Cantonment Department for three months. He was transferred to Central Government in President's Secretariat and then to the Planning Division, on 14-1-1971. The Planning Division recommended him for promotion to the post of Deputy Secretary to the Government of Pakistan in the month of June/July, 1972. Pending approval by the Establishment Division, the Planning Division promoted the appellant as Deputy Secretary internally, on 8th August, 1972, and gave him the charge of Deputy Secretary (Administration) by designating him as O.S.D. He was regularly promoted as Deputy Secretary on 9th April, 1973 and posted to the Establishment Division. As a result of publication of S.R.O.1307(I)/73, dated 21st August. 1973, and S.R.O.1307(I)/73, dated 14th September; 1973, the appellant became Member of All-Pakistan Unified Grades (hereinafter to be referred as APUG). Secretariat Group was constituted in APUG under Office Memorandum No.2/2/75-ARC, dated 12th April, 1976. Options were sought for the Secretariat Group and the appellant opted for. Secretariat Group. Gradation List of Deputy Secretaries of the Secretariat Group was prepared under section 8(4) of the Civil Servants Act, 1973. This Gradation List was circulated in June, 1976. The name of appellant appeared at Serial No.69. The appellant came to know in August, 1979 that several persons belonging to erstwhile Civil Service of Pakistan
(CSP) whose names appeared below him (the appellant) in the Gradation List or whose names did not appear at all in the said List, were being promoted as Joint Secretary, and his (appellant's) name had not been put to the Central Selection Board for consideration. The appellant addressed a letter to the Secretary, Establishment Division on 6th August, 1979 making a request that he should, be provided with a copy of Gradation List prepared after 1976. Many persons were promoted whose names appeared below the appellant or whose names were not included in the Gradation List. The appellant sent a reminder to the Establishment Division in November, 1979, but did not receive am reply. The appellant further learnt in January, 1980 that a number of officers of defunct Civil Service of Pakistan, who were junior to him were being promoted as Joint Secretary (Grade-20) and his (appellant's) name was not being considered. The appellant submitted a representation to the Establishment Division, on 15-1-1980, for putting his name to the Central Selection` Board, and when promoted, he may be ordered to have been promoted prior to the person who had already been promoted. Some more junior officers of former CSP were approved for promotion in Grade-20 and the name of the appellant had not been put up for consideration by the Central Selection Board. The appellant submitted another representation, on 9-2-1980, to the Secretary, Establishment Division, with the same prayer but it remained unresponded. Some more junior former CSP Officer were promoted and notified at the end of February, 1980. The Establishment Division' vide Letter No.55/11/79-AV, dated 12-3-1980, informed the appellant that no officer junior to him had so far been promoted. The appellant mentioned the names of ten persons, out of whom six had been shown below him in the Gradation List of 1976, while names of four did not appear at all in the Gradation List. The appellant referred to a Gradation List which was placed before the Supreme Court by on 6th December, 1979 under the orders of the Supreme Court for the inspection of Israrul Haq, respondent in Appeal No.37 of 1979, and in the, aid Gradation List the name of the appellant appeared at Serial No.36 vis-a--vis the position of some of- the former CSP Officers who were promoted in the month of August, 1979, and in the months of February, March and May, 1980, in preference to the appellant. Feeling aggrieved of the action of the Establishment Division in promoting junior former CSP Officers, Hameed Akhtar Niazi preferred appeal under section 4 of the Service Tribunals Act, 1973, with a prayer that the Tribunal may direct respondent No. l (Government of Pakistan through Secretary, Establishment Division) to proceed in accordance with law and to declare the appellant to have been promoted prior to ineligible and junior officers promoted in August, 1979, February, March and May, 1980, with a prayer that full salary and other benefits may be allowed to the appellant from the date on which he would have been promoted if his name had been put up for the consideration of the Central Selection Board according to seniority. He further prayed that the cost of the case may also be allowed. Besides Government of Pakistan through Secretary, Establishment Division, the appellant had arrayed fourteen more officers as respondents in the appeal.
2. Objections were filed by respondent No. 1. Some Preliminary objection was raised which are of usual nature. It was started that the appeal was not maintainable; that it was frivolous; that it was hit by section 2(1)(b) of the Service Tribunals Act 1973 (wrongly mentioned as section 2(1)(b) instead of section 4(1)(b) of the Act); that it had become infructuous for the reason that the appellant was an officer in Grade-20 and he was seeking ante dation of his seniority in lower Grade-19 and the retrospective correction of seniority in the lower grade would not by itself be a ground for declaring him fit for the higher post; that ante-dating of promotion was not a terms and condition of service; that the claim of the appellant for promotion to the post of Joint Secretary/Grade-20, prior to the promotion of his juniors with effect from 28-8-1980 was outside the scope of the Service Tribunal.
3. As regards the facts, it was stated that Seniority List circulated in 1976 was provisional one and it could be rectified by the Government where wrong seniority to an officer; that no vested right to a particular seniority in a service, cadre or grade is created under section 8 of the Civil Servants Act, 1973, that no junior officer to the appellant was promoted; that officers mentioned in. para. 13 of the appeal were members of erstwhile Civil Service of Pakistan and prior to 15th August, 1973 all posts of Deputy Secretaries to, the Federal Government were borne on the cadre of former CSP- and those posts were in the then CSP scale and appointment as Deputy Secretary to the Federal Government did not involve any promotion of the senior CSP scale officers and on the promulgation of Civil Servants. Ordinance, 1973, many senior CSP scale officers were serving in the Provinces while their juniors in, the same scale were posted as Deputy Secretary to the Federal Government, and in the seniority list circulated in 1976, junior officers serving as Deputy Secretary to the Federal Government were placed senior to those who were posted in the Provincial Governments and since Civil Servants Ordinance, 1973, had no retrospective effect, inter se seniority of the officers of erstwhile Civil Service of Pakistan, as it stood on 15th August, 1973, could not be disturbed; that officers appointed as Deputy Secretary after 15th August, 1973, retained their inter se seniority vis-a-vis their juniors appointed -as Deputy Secretary before 15th August, 1973; that seniority of the officers mentioned in para. 13 of the appeal was assigned with effect from the date on which their immediate junior was appointed as Deputy Secretary before 15th August, 1973. It was, however, admitted in the comments that seniority list placed before the Supreme Court in December, 1979 was different from the one circulated in 1976. It was further admitted that in the seniority list circulated in 1976, the name of the appellant was shown a: Serial No.69 whereas in the list of 1979, his name appeared at Serial No.36.
4. Comments were also filed by Mr. Muzaffar Mahmood Qureshi, Hameed Ahmad Qureshi and Shahim Ahmad Khan, respondents 6, 7 and 9, respectively. They maintained that the appointment of the appellant as OSD/Deputy Secretary would not make him senior to the respondents who were members of CSP cadre since their entry in service; that the members of All-Pakistan cadre could be posted to the Provinces or, the Federal Government and the posting of any member of the cadre as Deputy Secretary in the Federal Government could not confer any right or ground to become senior 'to his colleagues serving in the Provinces; that qualification for selection/posting as Deputy Secretary in the Federal Government was to have put in service for a period of eight years and the post being large in number and the membership of the cadre being small, any CSP officer serving with the Federal Government became a Deputy Secretary on the completion of eight years' service and it was disturbing inter se seniority of the officers; that the appointment as Deputy Secretary was on ad hoe basis and the appointment/promotion on ad hoc basis could not confer any right of seniority to the appellant; that the constitution of the Secretariat Group in the APUG could not affect the rights of the members of the service retrospectively which had already accrued to the members of the service; that the names of the said respondents had been Omitted erroneously for the reason that they were serving in the Provinces; that the appointment of members of regular cadre CSP against the post of Deputy Secretary was not a promotion; and that no junior officer to the appellant had been promoted as Joint Secretary.
5. Mr. Muizuddin Ahmed, respondent No.4, also submitted the comments. He maintained that he was promoted to Grade-20 by a valid order of the competent Authority, dated 28-2-1980 whereas the appellant had not been promoted to that grade; that under the rules seniority was not the only criteria for promotion and promotion to the higher grade depended on seniority and fitness both, but it was the sole prerogative of the Government to judge about the fitness of an employee for further promotion, hence, the appellant could not claim promotion on the sole basis of seniority; that respondent No.4 entered CSP on 15-10-1963 and as per rule in force at that tin* he automatically acquired the status of Deputy Secretary to the Federal Government after eight years of continuous service, on 15-10-1971. He further maintained that the appeal was baseless, without foundation and not tenable under the law and the rules and was liable to be dismissed. .
6. The appellant submitted rejoinder to the written objections filed by respondent No. 1. The appellant maintained that his appeal pertained to his right to be considered for promotion according to seniority which was guaranteed to him under section 9(1) of the Civil Servant's Act, 1973, and Serial No.168(2) of ESTACODE, 1979 Edition (page 131) and it was not a request for declaring his fitness to be appointed to or to hold a particular post or to be promoted to a higher grade; that the appellant had not sought the ante-dation of his seniority in lower Grade-19 and his ,plea was that he had a right to be considered for promotion to Grade-20 according to the Gradation List circulated by the Establishment Division in June, 1976; that the Gradation List circulated in June; 1976 was not a provisional list and it had been prepared after objections had been invited against the Gradation List circulated in October. 1975; that the appellant challenged the stand of respondent No. l that all posts of Deputy Secretaries to the Federal Government were borne on the cadre of the former CSP prior to 15th August, 1973. According to the appellants, under Rule 6 of the Civil Service of Pakistan (Composition and Cadre) Rules, 1954, not more than 1/3rd of the cadre posts of the Deputy Secretaries under the Federal Government wee to be filled to by officers not being members of the service. The appellant further alleged that it was incorrect to say that the post of Deputy Secretary was in the then senior scale CSP and appointment to those posts did not involve any promotion. He referred to para. 14 of the objections submitted by respondent No.l and pointed out that according to respondent No.l the post of Deputy Secretary was a selection post and appointment to it could be made only with the approval of the Chief . Executive after the Central Selection Board had recommended such appointment; that the old cadres having ceased to exist, the seniority in the newly formed Groups had to be determined afresh and fixed in accordance with the date of regular appointment to the post in the respective grades; that the Secretariat Group being a new cadre had its own principles 'of seniority which violate the principles enshrined in section 8(4) of the Civil Servants Act, 1973 and according to the Establishment Division office memorandum the seniority of the Deputy Secretaries in the Secretaries Group would be determined from the date of continuous regular officiation as Deputy Secretary or in a post in Grade-19, whichever is earlier and in this context the appellant referred to Serial No.16 of- ESTACODE, 1.979 Edition, page 595. The appellant relied on several authorities in support of his contentions. He made prayer that his appeal may be accepted.
7. Mr. Ramizul Haq, Deputy Secretary (Grade-19), Secretariat Group of APUG filed Appeal No. 116(R) of 1981 against Federation of Pakistan through Secretary, Establishment Division; Dr. Muhammad Arif and Shakeet Ahmed. He disclosed in the appeal that after qualifying Central Superior Service Examination held in 1963 by the Federal Public Service Commission, he joined Government service as Section Officer, on 21-12-1964; that he qualified the Lateral Entry Examination for the post of Deputy, Secretary held by the Establishment Division in 1975 and- was appointed to officiate as Deputy Secretary to the Government of Pakistan, with -effect from, 5-10-1975; that Gradation List of Grade-19 Officers of the Secretariat Group of APUG, corrected up to 15th May, 1976, was circulated by the Establishment Division, on 14-6-1976, and he was placed at Serial No.238; that officers junior to him, namely, Dr. Muhammad Arif and Shakeel Ahmed, respondents Nos.2 and 3, whose position in the Gradation List was 294 and 297, respectively, were promoted as Joint Secretary, with effect from 23-11-1980; that he (the appellant) being senior the said officers was eligible for promotion to Grade-20, but it appeared that his name had not been placed before the Central Selection Board by respondent No. 1. The appellant made a prayer that respondent No. l be directed to submit his case to the Central Selection Board for consideration for promotion to Grade-20 as Joint Secretary, with retrospective effect, vis-a-vis those who were junior to him as per Gradation List circulated in June, 1976.
8. Since the two Appeals bearing Nos. 116(R) of 1981 and 124(L) of 1980 were identical, the same had been disposed of by the Tribunal by a single judgment, dated 11-12-1986.
9. It was contended before the Tribunal by the appellants that after enforcement of Civil Servants Act, 1973, the seniority had to be determined in accordance with section 8 of the Civil Servants Act, 1973 and it was immaterial if a former CSP Officer had or had not been serving as Deputy Secretary when the Lateral Entry Examination was held and officers appointed as Deputy Secretary; that the cadre of Civil Service of Pakistan. (CSP) having become defunct since 1973, no one could claim seniority on the basis of his emplacement in the former CSP cadre; that according to para. 8 of Serial No. 18 (pages 766-868 of ESTACODE, 1983 Edition), the seniority of a Deputy Secretary had to be reckoned from the date of continuous regular officiation as Deputy Secretary or in a post in Grade-19, whichever is earlier; that according to para.3(ii) of Officer Memorandum No.2/2/75-ARC, dated 21-2-1975 (page 73), Part IV of the Booklet "Administrative Reforms", the post of Deputy Secretary could be filled in by a person who had rendered twelve years' service in Grade-17 and above, and in view of- the said Memorandum, it was to possible or legal for the Government to promote respondents 2 and 3 from the date when they had rendered only eight years of service.
10. It was submitted on behalf of the Government that prior to formation of Secretariat Group, officers of CSP cadre were appointed as Deputy Secretary, irrespective of seniority on the basis of suitability and availability and that all officers in senior scale (now Grade-18) were eligible for appointment as Deputy Secretary if they had eight Years' service; that the post of Deputy Secretary for CSF cadre was never a promotion post and all senior scale CSP Officers irrespective of their seniority could be appointed Deputy Secretary on completion of eight years' service in junior CSP and senior CSP scale; that the post of Deputy Secretary was a tenure post and the Deputy Secretary had to go back as Deputy Commissioner etc, if the exigency of service so required.
11. After hearing the arguments of the learned counsel for the parties, the Tribunal came to the conclusion that all rules made under the Civil Servants Act. 1973, or the Civil Servants Ordinance had to be construed with prospective operation and not with retrospective effect and all those rules which affect the former CSP Officers had to be applied for the situations existing after their enactment of the Civil Servants Ordinance and the Civil Servants Act, 1973, and the Rules made thereunder, and that the seniority of CSP Officers in APUG could not, therefore, be distorted. It was held that am seniority to which a member of the cadre was entitled before the constitution of Secretariat Group could not be affected by, the provisions of section8(4) of the Civil Servants Act, 1973. It was concluded by the Tribunal that if after coming into force the Civil Servants Act, r973, an officer of the former CSP who was senior to his colleagues working as Deputy Secretary in the Secretariat, but an officer who was working in the Province or elsewhere when brought to the Secretariat, would retain their seniority vis-a-vis his own colleagues, and if an officer of the former CSP is appointed as Deputy Secretary in the Secretariat Sub-Group, within APUG, he would count the seniority from the date he completes eight years of service if any of his colleagues junior to him had already been promoted. The Tribunal concluded that respondents Nos.2 and 3 were senior to the appellant in APUG, therefore, they could be considered for promotion prior to the consideration of the appellant. Both the appeals bearing Nos.124(L) of 1980 and 116(R) of 1981 were dismissed leaving the parties to bear their own costs.
12. The decision of the Tribunal, dated I1-12-1986 was challenged by Hameed Akbhtar Niazi before the Supreme Court. His. petition for leave to appeal was considered and granted. The Honourable Judges of the Supreme Court particularly referred Serial No. 17, at page 1014 of ESTACODE, 1989 Edition, and paras. 3 and 8 of Serial No.19, pertaining to the appointment to the post of Deputy Secretary and the seniority as given at pages 1096 and 1097 of ESTACODE, 1989 Edition. It was observed by Hon'ble Judges that the Tribunal had not taken into consideration the abovementioned provisions of ESTACODE while dilating upon the controversy in issue, which should have been decided whether the respondent had exercised option in terms of aforesaid para.4 of the ESTACODE at page 1014 by 31-10-1975, and whether the seniority list was prepared as per aforequoted para. 8 of the ESTACODE, i.e. from the date of continuous regular officiation as Deputy Secretary or in a post in Grade-19, whichever is earlier. The case was remanded by the Honourable Supreme Court with direction to the Tribunal to re-examine the above case after notice to the affected persons and decide the same afresh in the light of the observations made above.
13. In compliance of the judgment of the Supreme Court, notices were issued to the parties and the arguments were heard afresh. Learned counsel for the appellant argued the same points as given in the written arguments. The appellant as well as Dr. Sh. Aleem Mahmood also addressed us and expressed their view-point. The learned counsel for respondent-department contended that the respondent-department was justified in applying the rule of 'next below' and the seniority had been correctly determined. He sought adjournment for fifteen days on the ground that list of officers of defunct CSP was to be filed by respondent-department in the light of direction of Supreme Court.
Adjournment for seven days was granted as many opportunities had already been given to the respondent-department for filing such a list. It was further directed that the respondent- department could file written arguments as well. The list was not filed. However, written argument was filed on 1-10-1998.
14. The Prime Minister of Pakistan (late Mr. 7.ulfiqar Ali Bhutto) addressed the nation on 20th August, 1973 from Lahore, on the eve of his visit to flood-stricken areas in Punjab. He was deeply grieved beyond expression at the disaster. He expressed sympathies to those who suffered due to flood. He appealed to all inside the country and outside to help in the gigantic task of rehabilitation by donating whatever they could afford. He observed that the flood situation had poignantly underlined for him the immediate necessity of overhauling the administrative structure of the country. The idea that the existing structure had lingered on for over a century as one of the legacies inherited from colonial days had been constantly in his mind. Finding the situation in the country, the realization became sharper than ever that the country needed civil servants with zest and vitality, with enthusiasm for rendering service to the people. He quoted an example that during the discussion regarding economic problem, a Minister suggested to the officers present in the meeting that he would like to tour a certain rural area with them, whereupon one of them threw up his hands in exasperation and said "Sir, I have not been to a rural area for ages". It was observed that such officers could not be retained in civil service. No Barra Sahib' could be retained in Government service. The background for Administrative Reforms were explained at length. The bureaucracy inherited at the time of Partition was designed by the East India Company to serve as an agent of Imperialism in the Sub-Continent. No institution in the country had so lowered the quality of national life as what is called "Naukarshahi". It had gone so by imposing a caste system in the society. It had created a class of Brahmins or Mandarins, unrivalled in its snobbery and arrogance; insulated from the life of the people and incapable of identifying itself with them. The people in the country demanded a new system of administration. A strong, hottest and professionally competent administration that is clean, accountable to the people and whole- heartedly dedicated to the development of the country and the service of the people. The bureaucracy, itself is a powerful vested interest, concerned more with its own good. The present system of administration is a legacy of colonial rule. The bureaucracy nursed and brought up on the traditions and concepts of colonialism was not required. A bureaucracy with a liberal outlook, dynamic in it---s working and motivated with a desire to serve the nation was needed. A number of commissions and international experts were put on the task for leaving the out-dated system. It was also observed that corruption in the service was a major cause of tarnishing the image of administration and corruption had become a way of life in the country. Public opinion in Pakistan had been agitating for long against this scourage and such a state of affairs had to be straight. It was pointed out that scientific and technological revolution had taken place in the 20th century and the Government would rely upon an effective corps of technical experts working in conditions which would enable them to exercise their talents to the best advantage of the country. Various service cadres, groups and departmental hierarchies of posts stud capping them all is the so- called elite service specially created by the British to rule the country. The British had now evolved a new service structure for themselves, but Pakistan has blindly adhered to what even the British had discarded. By an individual and iniquitous system of reservations of key posts for a so-called elite cadre, the system had neglected the middle and lower echelons of the service and, thus, destroyed team-work and prevented the fullest utilisation of Pakistan's manpower potential and particularly the talent available within the services. The technical, professional and scientific groups had been specially affected. The Administrative Reforms Committee had recommended that the first step in the direction of administrative reforms in Pakistan must be the replacement of existing structure by a modern and scientific system based on professional competence and performance and attuned to the challenges of a fast-moving scientific and technological work. Kh. Zaheer Ahmed, Secretary- General of All-Pakistan CSP/DMG Association sent a ten pages note on the subject "Legal Status of the Civil Servants of Pakistan". This note indicates that officers of the defunct CSP have not accepted the Administrative Reforms of 1973. The proposal of the Administrative Reforms Committee had been accepted for immediate implementation as an essential pre-requisite for the introduction of the other wide-ranging reform measures. It had been decided that all the services be converted into a unified structure. New system would have the following features:
(a) All the services and cadres will be merged into a unified grading structure with equality of opportunity for all who enter the set.7ice at any stage based on the required professional and specialised competence necessary for each job.
(b) All "Classes" among Government servants will be abolished and similarly replaced by a unified grading structure, a peon or equivalent at the bottom, a Secretary or departmental head at the top. The existing classification of the services into Class I to Class IV, will no longer operate. The road to the top will be open to all on merit and required educational and professional qualifications.
(c) The use of "service" labels will be discontinued forthwith.
(d) The Unified Structure would be designed to provide for entitlement to promotions to the higher posts throughout the range of public service; for horizontal movements from one cadre to another including the movement of technical personnel to the cadre of general management carrying posts of an executive nature there will also be scope for out of turn promotion to the exceptionally meritorious officers.
(e) The correct grading of each post will be determined by job evaluation, job description, professionalism and specialization.
(f) With the merger of all classes and services into a single Unified Graded Structure, the various functional and professional services will become branches of a single service.
(g) There would be provision that Government may take talented officers from the private sector such as banking, insurance, industry and trade as well as from other professions for jobs at the appropriate levels in the Central and Provincial Secretariats and Departments as well as Government-sponsored corporations, autonomous and semi-autonomous bodies.
It was stressed that the new service structure would enable the Government to gain the full contribution of scientists, engineers, doctors, economists, accountants, statisticians and other professionals and specialists in policy--making, management and administration. It was disclosed that Administrative Tribunals had been set up in which citizen could seek redress of their grievance caused to them as a result of illegal, arbitrary or mala fide decision or action of a Government Department or a civil servant, and from the said forum Government officials would get their grievances redressed and the Tribunal would deal with complaints of Government officials on any service matter quickly and efficiently. In this well-reasoned address, the Prime Minister pointed out the grounds for taking upon himself the task of Administrative Reforms.
15. Before Independence, the premier administrative service in India was the India Civil Service. This was a single service divided into a number of cadres on a Provincial basis. Officers appointed to this service, were allotted to various Provinces and they remained members of the Indian Civil Service cadre of-those Provinces throughout their careers. The Central Government met their own needs by the deputation of officers from the Provinces. There was also in undivided India the Indian Political Service, the two main sources of recruitment to which were the Indian Civil Service and the Indian Army.
16. The Government of Pakistan decided to constitute Civil Service as a centralised Service on an All-Pakistan basis to be known as Civil Service. of Pakistan. This decision had been taken in order to create a well-knife Civil Service for the whole of Pakistan, constituted and operated on a centralised bask, thereby increasing association between the various, Provinces and developing homogeneity in administration. The Members of this Service were liable to be posted to any of the Province of the Dominion. They would be administratively more useful to the Central as well as the Provincial Government than if they belonged to Provincial cadres. The recruitment to the service was to be made by selection on the basis of open competitive examination to be held by the Federal Public Service Commission, except in the case of officers of Armed Forces who could be appointed to the service on the recommendation of the Commission arrived at through an interview and a scrutiny of service records. The Governor-General and the Governors of East Bengal, the Punjab, Sindh and the North-West Frontier- Provinces agreed that there shall be constituted service of the Federation to be known as the Civil Service of Pakistan and that certain posts in connection with the affairs of the Provinces shall be filled by members of that service and specified, as far need be, the-conditions of service of its members, whether serving in posts in connection with the affairs of Federation or of a Province. In pursuance of that agreement and in exercise of powers conferred under subsections (1) and (2) of section 241 of the Government of India Act, 1935 and of all other provisions empowering him in this behalf, the Governor --General was pleased to make rules known as Civil Service of Pakistan (Composition and Cadre) Rules, 1954.
Cadre posts-and service were defined under sub-rules (a) and (d) of Rule 2. 'Cadre post' meant any duty post included in the Schedule (Page 1001 of ESTACODE). Under Schedule, all posts of Deputy and all posts of Joint Secretary and above under Federal Government shall be deemed to be cadre posts. 'Service" meant, the Civil Service of Pakistan. It is provided in Rule 3(1) of the said Rules that appointments to the cadre posts shall be made by the President in accordance with rules to be made by him for the purpose. The President was pleased to make Rules as contained under Serial No. 10 of ESTACODE (1989 Edition page 1002). Cadre posts and Service shall have the same meaning as given in Civil Service of Pakistan (Composition and Cadre) Rules, 1954, Rule 2 (i), (ii), (iii), (iv) and (v) of the Civil Service of Pakistan (Composition and Cadre) Rules, 1954 deals with the appointments of. Assistant Commissioner or Sub-Divisional Officer, posts of the rank of Deputy Secretary, Joint Secretary, Additional Secretary and Secretary under the Federal Government and equivalent posts under that Government or a Provincial Government. It is laid down under Rule 3 (1), that appointments to the post of Assistant Commissioner or Sub-Divisional Officer or an equivalent post shall .be made through competitive examination except that a certain percentage of posts determined by the President shall be filled by promotion from lower ranks or through induction of persons from outside Government service. It is provided under sub-rule (2) of Rule 3 that persons serving under the Federal Government or Provincial Government, on completion of service as specified in the second column of the table below, shall be eligible for appointment to the posts in the first column of the table. For the purpose of this appeal, the posts of Deputy Secretary and Joint Secretary are relevant and, thus, the tables concerning only these two posts, is being given below.
(i)Cadre posts of the rank8 years' service as Assistant of Deputy Secretary.Commissioner or SDO or in equivalent post.
(ii) Cadre post of the rank years' service as of Joint SecretaryAstant Commissioner or or in an equivalent or higher post or 5 years' service as Deputy Secretary or an equivalent post.
16. The Civil Service of Pakistan (Composition and Cadre) Rules, 1954 remained in force. Change, however, took place after the Administrative Reforms were announced by the Prime Minister, on 20- 8-1973, from Lahore during the inspection of flood-stricken area of Punjab.
17. The Cbnstitution of Islamic Republic of Pakistan was authenticated by the President, on 12-4- 1973, and it commenced with effect from 14th day of August, 1973 giving some enabling powers under sub-clause 3(1) of the Constitution. Part XII, Chapter 1 of Article 240 of the Constitution deals with the appointments to service of Pakistan and conditions of service. It is provided under Article 240 that subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be 'determined--
(a) in the case of the service of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and
(b) in the case of the services of the Province and posts in connection with the affairs. of a Province, by or under Act of the Provincial Assembly.
Under "Explanation', it is laid down that All-Pakistan Service means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament)-. As regards the existing rules, it is laid down in Article 241 of the Constitution, that until the appropriate. Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government. Federal Public Service Commission and Provincial Public Service Commissions were constituted under Article 242 of the Constitution. In pursuance of Article 212 of the Constitution, the Civil Servants Ordinance, 1973 (Ordinance No.XIV of 1973) and Service Tribunals Ordinance, 1973 (Ordinance NO~XV of 1973) came into force, on 15-8-1973. Subsequently, these two Ordinances were repealed, on 29-9-1973, and the Civil Servants Act, 1973 (Act LXXI of 1973) and Service Tribunals Act, 1973 (Act LXX of 1973) came into force.
Seniority and promotion of civil servants are covered under sections 8 and 9, respectively, of the Civil Servants Act, 1973. It is provided in section 8(l) of the Civil Servants Act, 1973, that for proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of .the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be. It is laid down under subsection (4) of section 8 of the Civil Servants Act, 1973 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: provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion, to the higher grade, retain their inter se seniority as in the lower grade. It is laid down in section 9(1) of Civil Servants Act, 1973 that a civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs.
Subsection (2) of section 9 of the Civil Servants Act, 1973 provides that a post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made, as may be --prescribed--
(a) in the case of a selection post, on the basis of selection on merit;and
(b) in the case of a non-selection post, on the basis of seniority-cum--fitness.
The services/cadres were merged into Unified Graded structure. The Government took decision which had already been indicated in the pre pages (a) to (g), which could be read with at page 989 of ESTACODE, 1989 Edition. It was further directed that as there would be one Unified Cadre for the posts included in All-Pakistan Services, the Civil Service of Pakistan (Composition and Cadre)
Rules, 1954 had been suitably amended and the amended rule was attached at Serial No.8 of ESTACODE, 1989 Edition. In exercise of the powers conferred by Rule 3 of the former Civil Service of Pakistan (Composition and Cadre) Rules, 1954, the President was pleased to make the rules. Under sub-rule (1) of Rule 5, it is provided that every Government servant, not being a member of the Service, who is holding a cadre post, at the commencement of these rules, shall, subject to the approval of the President, become a member of the Service. In exercise of this Provision, the President was pleased to approve the appointment of all Government servants who were holding a cadre post on the 21st of August, 1973 to All-Pakistan Unified Grades. This notification was issued, on 14th September, 1973. By virtue of S.R.O.No.1237(1)/73, dated 21-8-1973 and S.R.O:1307(1)/73, dated 14- 9-1973, the appellant, who was posted as Deputy Secretary became a member of All-Pakistan Unified Grades (APUG), on the constitution of Secretariat Group of APUG under Office Memorandum No.212/75-ARC, dated 12-4-1976. The appellant opted for the Secretariat, Group.
18. A meeting of the Chief Secretaries and Federal Finance Secretary was held, on 28-2-1974, in the Establishment Secretary's Office on the subject. of adaptation, of National Scales of Pay.
Recommendations of the meeting together with the Finance Secretary's views were submitted to the Prime Minister for approval who was pleased to accord approval. The following decisions received the approval of the Prince Minister: .
(i) All Secretaries to the Provincial Governments may be in Grade-20.
(ii) Additional Secretaries to the Provincial Governments may be in Grade-19; in addition, they may get a special pay of Rs.250, subject to the maximum not exceeding Rs.2,300.
(iii) Joint Secretaries to the Provincial Government may be in Grade-19.
(iv) Deputy Secretaries to the Provincial Governments may continue to .be in Grade-18 and, in addition, get the Special pay, at the present rates. However, a Deputy Secretary serving at the Centre or a Government servant approved for appointment as Deputy Secretary at the Centre, on appointment as Deputy Secretary in the Province; should carry his emoluments.
(v) Deputy Commissioners will continue to be in Grade-18 and in receipt of the present rate of special pay and free residential accommodation. Their samputary allowance may, however, be raised to Rs.150 per month. Where officers are specially selected as Deputy Commissioners under the lateral entry scheme and they are getting higher emoluments, they should f be protected in their emoluments. .
(vi)Assistant Commissioners in All-Pakistan Unified Trades may be Grade-17.
(vii)Deputy Inspector-General of Police may be in Grade-19.
(viii)The emoluments of Senior Superintendents of Police, Assistant Inspectors-General and Superintendents of Police, Crime and Special Branches should be equalised with those of Deputy Commissioners.
(ix) Superintendents of Police may continue in Grade-18 and to get their present special pay.
(x) Consultations will be made with the Law Secretary, in light of recommendations made by the Jurists' Conference, as regards the National Pay Scale that should be allowed to District and Sessions Judges, Additional District and Sessions Judges, and Administrative Civil Judges etc., and further communication will follow.
(xi) The minimum length of service for eligible for promotion to various grades should be as follows: Grade-185 years.
Grade- 1912 years.
Grade-20 15 years.
(xii) No Government servant of Grade-18 and above belonging to All Pakistan Unified Grades will remain posted in the same Province for more than 5 years. (This is in partial modification of the direction conveyed vide para. 12(ii) of Establishment Division Memorandum No.2/2/74-ARC, dated the 23rd February, 1974).
19. In pursuance of mandatory provision as contained under section 8(1) of Civil Servants Act, 1973, for preparing a seniority list of the members of service, cadre or post, for the proper administration of service, cadre or post, Gradation Lists were prepared. Gradation List of CSP Officers, (Marked by us as C1 with red ink), was prepared on 1-3-1973 prior to the announcement of Administration Reforms. After the enactment of Civil Servants Act, 1973, a Gradation List of All-Pakistan Unified Grades in Grade-19 (marked as C2) had been prepared on 20th November, 1973. It contained a direction that in case of any omission or discrepancy, the same may be communicated to Establishment Division by 30th December; 1973, for rectification. This list was marked as provisional.
20. After some time, All-Pakistan Unified Grades had been reorganised into four Occupational Groups known as Tribal Areas Group, District Management Group, Secretariat Group and Police Group, which were created, on 20-10-1973,23-2-1974, 21-2-1975 and 31-5-1975, respectively.
Seniority list of each Group had been prepared separately. Each Group had to be managed under their respective Rules. A member of a particular Group was to be governed by prospects of promotion and advancement available within the Group. While entry into other Groups by horizontal movement was possible with the approval of the Central Selection Board, but there was no automatic mobility from one Group to the other. Officers shown in any particular Group would henceforth belonged to that Group once for all, unless specifically selected and approved for movement to another Group. The officers were informed that officers shown in the Secretariat Group who originally belonged to some other Group, should inform the Establishment Division finally as to whether they would like to remain in the Secretariat Group or to go back to their parent Group. It was made clear that option once exercised would be final and such option should reach not later than 31st October, 1975. It was further indicated that failure to exercise option by that date would be presumed to be an option for the Group where the name appeared previously. It was also directed that in the meantime those lists would be treated as provisional and in case there were any omissions or discrepancies, those-may be communicated immediately for rectification. As a result of these directions, provisional Gradation List of the Deputy Secretaries of the Secretariat Group (Marked C3), was issued, on 1 October, 1975. Under item 3 of the Foreword, it was recorded that according to rules, seniority of each grade had reckoned from the date of appointment to the grade. In this list, the name of Hameed Akhtar Niazi, appellant, is shown at Serial No.91. The date of entry in Grade-17 under Column No.4 is recorded as 1-4-1963. The date of entry as Deputy Secretary is given as 19-4-1973 and the date of seniority is also recorded as 19-4-1973. The name of Mr. Walayat Ahmed, respondent No.2, who is senior to other respondents, is indicated at Serial No. 99.
His date of e9try into Government service is recorded as 25-1-1955 and his date entry as Deputy Secretary is recorded as I-6-1973. Same date is recorded in column meant for date for seniority. A revised Gradation List of Officers in the Secretariat Group (Grade 23-18) (Marked C4), was published on 14-6-1976. It was mentioned in the Preface that in compiling these lists, the option,st exercised by officers in response to Establishment Division Letter No.2/4/75-AV, dated 2nd October, 1975 had been taken into consideration. The name of Hameed Akhtar Niazi, appellant, appears at Serial No.69 containing the same date of entry in service, entry as Deputy Secretary and date of promotion. The name of Mr. Walayat Ahmed, respondent No.2, is indicted at Serial No.74. His date of entry into Government service, date as Deputy Secretary and promotion were given the same as in the earlier Gradation List of 1975. The name of Syed Sarfraz Ali Shah, respondent No.3, is indicated at Serial No. 156 of the said list. His date of entry in Government service is recorded as 20-12-1958, date of entry as Deputy Secretary 14-9-1974 and date of seniority is also 14-9-1974. The name of Rafiq Hussain Agha, respondent No.4, appears at Serial No.276. His date of entry in the Government service is recorded as 10-12-1961 but the other Columns Nos.6 and 7 have been left blank. The name of Adnan Ahmed Ali, respondent No.5, Muzaffar Mahmood Qureshi, respondent No.6, Hameed Ahmed Qureshi, respondent No.7, Shamim Ahmad Khan, respondent No.9, Saghir Asad Hassan, respondent No. 10, Muhammad Azhar, respondent No. 11, Muizuddin Ahmed, respondent No. 12, Syed Abbas Hussain Shah, respondent No. 13 and Sajjad Hussain respondent No. 14 have been indicated at Serial Nos.277, 278, 279, 283, 287, 288, 290, 291 and 292 respectively. All of them have been shown far junior to Hameed Akhtar Niazi, appellant, in this seniority list. The seniority list published on 14-6- 1976 could not be considered as a provisional list. As mentioned earlier, the provisional Gradation List of the Deputy Secretaries of the Secretariat Group was published, on Ist October, 1975, and objections were invited and considered. The seniority list of 14-6-1976 (C4) had been published and in compiling this list, option, exercised by the officers, in response to Establishment, Division's Letter No.2/4/75-AV, dated 2nd October, 1975, had been taken into consideration. This matter has already been decided by the Tribunal in the case of Syed Ali Muqtada Wahidi v. Secretary, Establishment Division and others, as reported in 1984 PLC (C.S.) 546 and it has been held that the list issued in June, 1976, by no stretch of imagination could be considered as provisional. This decision was confirmed in appeal by the Honourable Supreme Court. It had been admitted by the representative of the estabilshment Division during the hearing of the above-quoted case that the said list was in vogue and was being acted upon for the purposes of promotions.
21. We have on record material to show that during the hearing of Appeal No.37 of 1979, titled Secretary, Establishment Division v. Israrul Haq, the latter submitted four applications for the production of Gradation List and in spite of the orders of Honourable Supreme Court, passed on three applications, the Gradation List was not produced between the period May to October, 1 979.
It was on the fourth application that Mr. Justice Dorab Patel directed the production of Gradation List within fifteen days and in compliance of that order, the Establishment Division produced the Gradation List on 6th December, 1979, and in that Gradation List, the name of Hameed Akhtar Niazi, appellant, appeared at Serial No.36 while those of Walayat Ahmed, Syed Sarfraz Ali Shah, Rafiq .Hussain, Agha, Adnan Ahmad Ali, Muzaffar Mahmood Qureshi, Hameed Ahmed Qureshi, Shamim Ahmad Khan, Saghir Asad Hssan, Muhammad Azhar, Muizuddin Ahmed, Syed Abbas Hussain Shah, Sajjad Hussain and Asad Parvez Shah appeared at Serial Nos.41, 104, 182, 183, 184, 185, 187, 191, 192, 193; 194, 195 and 333 respectively. The appellant has mentioned these serial numbers of paragraph 13 of the memo. of appeal. The production of this list before the Supreme Court is not denied and it is an admitted fact that this list had been produced before the Supreme Court during the hearing of Appeal No.37 of 1979, on 6-12-1979.
22. We find another Gradation List of the year 1979 on the record (now marked as C5). ,It is totally different (from the Gradation List which was produced before the Supreme Court, on 6-12-1979. We have on record Gradation List of 1981 (APUG) Secretariat Group (Grade 22-18) (Marked .by us as C6), published on 22-7-1981. In this list, respondents Nos.2, 3, 5, G, 7, 8, 15, 9, 10, 11, 12, 13 and 14 have been shown at Serial Nos. 162, 166, 170, 171, 172, 181, 182, 183, 185, 189, 194, 195 and 196 respectively. The name of the appellant has been indicated against Serial No.203 much below all the above respondents who were much junior to the appellant in the Gradation Lists issued earlier. For the sake of convenience and proper appreciation, we have prepared and append Chart of all the Gradation Lists showing 'the position of the appellant and the respondents.
GRADATION LIST GRADE-19 ALL-PAKISTAN UNIFIED GRADES (PROVISIONAL)
DATED 20-11-1973 FORWARD Consequent on the merger of all Services and Cadres into a Unified Grades structure, a gradation list of officers of All-Pakistan Unified Grades in Grades-20 and above has already been circulated to all concerned. A gradation list of officers of All-Pakistan Unified Grades in Grade-19 has now been prepared and is circulated.
(2) Grades-19 is the equivalent of what was previously known as Junior Administrative Grade. The minimum length of service prescribed for drawal of full pay in Grade-19 is 13 years' service in Grade-17 and above. In this list, therefore, all officers who are holding posts in Grade-19 of All- Pakistan Unified Grades, and who will have completed 13 years' service in Grade-17 and above as on 31-12-1973 have been included. Seniority has been allowed from the date of completion of 13 years' service or appointment to Grade-19, whichever is later.
(3) In the case of former CSP, no posts in Junior Administrative Grade were included in its cadre.
The officers of this defunct service were promoted directly from Senior Class I posts (Grade-18) to the posts in Commissioner/Joint Secretary's Grade (Grade-20). In their case, therefore, all officers who have completed 13 years' service in Grade-17 and above have been deemed to be in Grade-19 and have been allowed seniority from the date of completion of 13 years' service.
(4) The inter se seniority of the former PCS (Listed Post Holders) vis-a---vis former CSP Officers in the case of those who have not so far been promoted to the Grade of Joint Secretary has been maintained and they have been allowed seniority from the dates their juniors in CSP have been given seniority in Grade-19.
(5) Officers who are holding the posts of Deputy Secretary/Deputy Inspector-General of Police but have not so far completed 13 years' service in Grade-17 and above have been shown separately in the Annexure to this Gradation List. They will be included in the Gradation List for Grade-19 after they have completed 13 years' service. ,
(6) Any omission, mistakes or discrepancies may be notified to the Establishment Division (AVI) by the 31st December, 1973.
RawalpindiWAQAR AHMED, The 20th November 1973. Secretary, Cabinet Secretariat.
GRADUATION LIST OF ALL PAKISTAN UNIFIED GRADES GRADE-19 Sl.
No.Name Gradation List 1-10-1975 (Provisional)Date of BirthDate of Entry in Grade-17Date of Entry in Grade-19 J.A.G.|D.S.Date of completion of 13 years service in Grade-17 and above.Date of seniority in Grade-19 1 2 3 4 5 6 7 8 15.Mr. Walayat Ahmed (respondent No. 2)28-11- 193025-1-1955 1-6-1973 22-1-19671-6- 1973 94.Mr. Syed sarfraz Ali (respondent No. 3)10-12- 193520-12-195819-12-1970 19-12-197120- 12- 1971 As stated in the foreword, seniority in Grade-19 has been allowed from the date of completion of 13 years' service in Grade-17 and above. Officers who are holding posts of Deputy Secretary/Deputy Inspector-General of Police, but have not completed 13 years, service have been shown in this Annexure. Their names have been arranged according to dates of appointment as Deputy Secretary/Deputy Inspector-General of Police. They will be included in Grade-19 after they have completed 13 years, service.
GRADATION LIST OF ALL PAKISTAN UNIFIED GRADES GRADE-19 Sl.
No.Name Gradation List 1-10-1975 (Provisional)Date of BirthDate of Entry in Grade-17Date of Entry in Grade-19 J.A.G.|D.S.Date of completion of 13 years service in Grade-17 and above.Date of seniority in Grade-19 1 2 3 4 5 6 7 8 24.Mr. Hamid Akhtar Niazi (appellant)19-2- 19351-4-1963 9-4-1973 ( Name of none of other respondent has been mentioned in this list)
CABNET SECRETARIAT ESTABLISHMENT DIVISION GRADATION LIST OF 1975 ISSUED ON 1-10-1975 DEPUTY SECRETARIES (SECTT. GROUP)
Froward as contained in the Gradation List of District Management Group (Provisional)
The Gradation List of Officers of All Pakistan Unified Grades in Grades 20 to 23 was circulated in September, 1973, and Gradation Lists of Officers of Grades 19 and 18 were circulated in November, 1973, and May, 1974, respectively. The APUG has since been recognised into four Occupational Group---namely the Secretariat Group, the District Management Group, the Police Group and the Tribal Areas Group. Consequently the Gradation Lists have now been drawn up separately in respect of each Group.
2. This Gradation List is in respect of District Management Group which was constituted vide Establishment Division Office Memorandum No. 2/2/74-ARC, dated the 23 February, 1974.
3. According to the rules seniority in each Grade has been reckoned from the date of appointment to the Grade.
4. This is a provisional list. Omissions, mistakes or discrepancies, if any, may be notified to the Establishment Division immediately for rectification.
Rawalpindi, the 1st October, 1975.(VAQAR AHMED), SECRETARY.
Sl.
No.Name)Date of BirthDate of Entry in Grade-17Date of Entry J.A.G.|D.S.Date of Seniority 1 2 3 4 5 6 7 91.Mr. Hamid Akhtar Niazi (appellant)19-2-19351-4-1963 9-4-19739-4- 1973 99.Mr. Walayat Ahmed (respondent No. 2)28-11-193025-1-1955 1-6-19738-6- 1973 (Name of no other respondent has been shown in this, list.)
ESTABLISHMENT DIVISION (PREFACE)rd Revised Gradation Lists of Officers in the Secretariat Group (Grade-23 to Grade 18) are published. In compiling these lists, the options exercised by Officers in response to Establishment Division Letter No.2/4/75-1-IV, dated the 2nd October, 1975, have been taken into consideration.
2. Errors and omissions, if any, may be notified to the Establishment Division.
Rawalpindi, the 14th June, 1976(VAQAR AHMED) SECRETARY 14-6-1976 GRADATION LIST OF ALL PAKISTAN UNIFIED GRADES SECRETARIAT GROUP DEPUTY SECRETARIES TO THE FEDERAL GOVERNMENT EQUIVALENT. (Corrected a to 15-5-1976).
Sl.
No.NameDate of BirthDate of Entry in Grade-17Date of Entry J.A.G.|D.S.Date of Seniority 1 2 3 4 5 6 7 69.Mr. Hamid Akhtar Niazi (appellant)19-2- 19351-4-1963 9-4-19739-4- 1973 74.Mr. Walayat Ahmed (R.2)28-11- 193025-1-1955 1-6-19731-6- 1973 156.Syed Sarfraz Ali Shah (R.3)10-12- 193520-12-1958 14-9-197414-9- 1974 276.Mr. Rafiq Hussain Agha (R.4)12-7- 193710-12-1961 277.Mr. Adnan Ahmed Ali( R.5)9-10- 193820-10-1961 278.Mr.MuzaffarMahmood Qureshi( R.6)25-3- 193912-12-1962 279.Mr. Hamid Ahmed Qureshi2-12- 19364-12-1962 283.Mr. Shamim Ahmed Khan (R.9)1-4-19374-12-1962 287.Mr. Saghir Asad Hassan ( R.10)11-5- 193915-10-1963 288.Mr. Muhammad Azhar( R.11)26-3- 193815-10-1963 290.Mr. Muizuddin Ahmed (R.12)21-3- 194015-10-1963 291.Mr. Abbas Hussain Shah (R.13)30-9- 193815-10-1963 292.Mr. Sajjad Hussain( R.14) 1-2-193815-10-1963 SENIORITY ACCORDING TO GRADATION LIST OF 1979 PRODUCED BEFORE THE SUPREME COURT ON 6- 12-1979 UNDER THE ORDERS OF THE HON'BLE JUDGE OF THE SUPREME COURT Serial No. 1.Mr. Hamid Akhtar Niazi (appellant)36 2.Mr. Walayat Ahmed (R.2)41 3.Syed Sarfraz Ali Shah (R.3) 104 4.Mr. Rafiq Hussain Agha (R.4) 182 5.Mr. Adnan Ahmed Ali( R.5) 183 6.Mr.MuzaffarMahmood Qureshi( R.6)184 7.Mr. Hamid Ahmed Qureshi (R.7) 187 8.Mr. Shamim Ahmed Khan (R.9)187 9.Mr. Saghir Asad Hassan ( R.10) 191 10.Mr. Muhammad Azhar( R.11) 192 11.Mr. Muizuddin Ahmed (R.12) 193 12.Mr. Abbas Hussain Shah (R.13) 194 13.Mr. Sajjad Hussain( R.14) 195 14.Mr. Asad Pervaiz Shah (R.15) 333 GRADATION LIST OF 1979 PREPARED SURREPTITIOUSLYACCORDING TO THE APPELLANT Sl.
No.NameDate of BirthDate of Entry in Grade-17Date of Entry inGrade-19|D.S.Date of Seniority 1 2 3 4 5 6 7 3.Mr. Walayat Ahmed (R.2)28-11- 193025-1-1955 26-6-196926-5- 1969 7.Syed Sarfraz Ali Shah (R.3)10-12- 193520-12-1958 29-5-196929-5- 1969 20.Mr. Rafiq Hussain Agha (R.4)12-7- 193710-12-1961 14-9-197414-9- 1974 21.Mr. Adnan Ahmed Ali (R.5)9-10- 193820-10-1961 17-7-19711-7- 1971 22.Mr.MuzaffarMahmood Qureshi( R.6)25-3- 193912-12-1962 17-7-197117-7- 1971 23.Mr. Hamid Ahmed Qureshi(R.7)2-12- 19364-12-1962 17-7-197117-7- 1971 36.Mr. Ahmed Maqsood Hameedi (R.8)16-6- 19381962 30-9-197230-9- 1972 38.Mr. Asad Parvez Shah 1-1-194015-1-1962 30-9-197230-9- 1972 39.Mr. Shamim Ahmed Khan(R.9)1-4-19374-12-1962 30-9-197230-9- 1972 43.Mr. Saghir Asad Hassan (R.10)11-5- 193915-10-1963 30-9-197230-9- 1972 47.Mr. Muhammad Azhar (R.11)26-3- 193815-10-1963 19-2-197319-2- 1973 53.Mr. Muizuiddin Ahmed (R.12)21-3- 194115-10-1963 8-3-19738-3- 1973 54.Syed Abbas Hussain Shah ( R.13)30-9- 193815-10-1963 8-3-19738-3- 1973 55.Mr. Sajjad Hussain( R. 14) 1-2-193815-10-1963 8-3-19738-3- 1973 64.Mr. Hameed Akhtar Niazi (appellant)19-2- 19351-4-1963 9-4-19739-4- 1973 RADATION LIST (A.P.U.G.)
SECTARIAT GROUP (GRADE 22-18)
22-7-1981 Sl.
No.NameDate of BirthDate of Entry in Government serviceDate of Entry inGrade-20|J.S.Date of Seniority 1 2 3 4 5 6 7 162.Mr. Walayat Ahmed (R.2)28-11- 193025-1-1955 4-8-19794-8- 1979 166.Syed Sarfraz Ali Shah (R.3)10-12- 193528-12-1958 21-8-19794-8- 1979 170.Mr. Adnan Ahmed Ali (R.5)9-10- 193820-10-1961 21-8-19794-8- 1979 171.Mr.MuzaffarMahmood Qureshi( R.6)25-3- 193912-12-1962 4-8-19794-8- 1979 172.Mr. Hamid Ahmed Qureshi(R.7)2-12- 19364-12-1962 4-8-19794-8- 1979 181.Mr. Ahmed Maqsood Hameedi (R.8)16-6- 19384-12-1962 27-2-198027-2- 1980 182.Mr. Asad Parvez Shah (R.15)1-1- 194015-1-1962 2-3-19802-3- 1980 183.Mr. Shamim Ahmed Khan(R.9)1-4- 19374-12-1962 27-2-198026-2- 1980 185.Mr. Saghir Asad Hassan (R.10)11-5- 193915-10-1963 27-2-198026-2- 1980 189.Mr. Muhammad Azhar (R.11)26-3- 193815-10-1963 4-5-198026-2- 1980 194.Mr. Muizuiddin Ahmed (R.12)21-3- 194015-10-1963 26-2-198026-2- 1980 195.Syed Abbas Hussain Shah ( R.13)30-9- 193815-10-1963 14-4-198014-4- 1980 196.Mr. Sajjad Hussain( R. 14)1-2- 193815-10-1963 30-5-198030-5- 1980 203.Mr. Hameed Akhtar Niazi (appellant)19-2- 19351-4-1963 17-8-198017-8- 1980
23. Before discussing the seniority of the appellant with the respondents, it is necessary to explain "next below rule", which has been applied very frequently in this appeal as well as in other appeals.
"Next below rule" was a temporary expediency designed to protect Government servants from monetary loss and in fact meant the temporary upgrading of posts. It was originally intended that the expediency should not last more than six months in individual cases. Whatever may have been the advantage in the past to leave a man undisturbed in the post held by him, if the exigencies of the public service required it, the need for such considerations does not exist at the present. It is the considered opinion of this Ministry that the concession of the "next below rule" should not be permitted, except in very exceptional circumstances and that too for very short periods. It has been decided, therefore, that the cases wherein the benefit of the "next below rule" has been conceded should be reviewed forthwith. The Ministries/Divisions etc. should take steps either to obtain the approval of the Ministry of Finance for the continuance of that benefit or to revert the Government servant concerned to his parent office. It is so provided in FR-30(15). The Fundamental Rules/Supplementary Rules are applicable to Federal Civil Servants throughout Pakistan.
Application of "next below rule" has been explained at page 181, Chapter V of the Civil Service of Pakistan in Section A, O & M Establishment Manual, Volume I, where it is laid down:-- It has been decided that 'next below rule' should not be applied normally in connection with appointments to selection posts above time-scale but cases of hardships. will be considered on their merits, if and when they arise."
Admittedly, the post in Grade-19 is a selection post. It is recorded at page 247 of ESTACODE, Edition 1989, under heading "Promotion to Selection Posts" that: "Posts in BPS-19 are selection posts. Promotions to these posts are to be. processed through the Central Selection Boards."
Looking at the charts, referred to above, one would feel no difficulty in finding out as to how the seniority of the appellant and the respondents had been changed by applying "next below rule".
Name of Mubashar Lal Khan appears at Serial No.155 in the Gradation List of the Civil Service of Pakistan, dated 1-3-1973. His date of entry into Government service is recorded as 1960: He was appointed as Deputy Secretary on 26-5-1969. Names of Walayat Ahmed, respondent No.2, and Syed Sarfraz Ali Shah, respondent No.3, appear at Serial Nos.91 and 134 of the Gradation List of CSP of 1-3-1973. Walayat Ahmed, respondent No.2, entered into Government service in 1955 and Syed Sarfraz Ali Shah, respondent NQ.3, in 1958. Both were senior to Mubashar Lal Khan but both had not been promoted as Deputy Secretaries. Walayat Ahmed, respondent No.2, was promoted as Deputy Secretary on 1-6-1973 while Syed Sartaz Ali Shah, respondent No.3, on 14-9-1974. Applying "next below rule" they were given seniority with effect from 26-5-1969. It was recorded underneath Serial No.7 against seniority allowed to former CSP Officer from the date his junior colleague was appointed as Deputy Secretary. Name of Farooq AYub appears at Serial No-190 of the Gradation List of CSP of March, 1973. He entered into in 1962 and was appointed as Deputy Secretary on 17 7- 1971. Names of Rafiq Hussain Agha, Adrian Ahmed Ali, Muzaffar Mahmool Qureshi and Hams Ahmed Qureshi. appear at serial Nos.171, 172, 178 and 179 respectively of the Gradation List of 1973. None of them had been promoted as Deputy Secretary. Applying "next below rule" the abovementioned respondents were given seniority as Deputy secretary with effect from 177 -1971-. Same words appear against*. Name of Farid Ahmed appears a Serial 971197 in the Gradation List of CSP of March, 1973. He entered into Government service in 1962 and was appointed as Deputy Secretary on 30-9-1972. Names of Asad Pervaiz Shah, Shamim Ahmed Khan and Saghir Asad Hassan, respondents, appear at Serial Nos.182, 185 and 196, respectively of the said list. Applying the same rule, they were given seniority as Deputy Secretary with effect from 30-9-1972. Ahmed Marlsood Hameedi, who entered into Government service in 1962, was also given seniority as Deputy Secretary with effect from 30-9-1972. Name of Razzaq Muhammad Ishaq appears at Serial No.200 in the Gradation List of CSP of 1973 while that of Muhammad Azhar, respondent, at Serial No. 198.
Razzaq Muhammad Ishaq joined service in 1963 and was appoint as dun` Secretary on '19-2-1973.
By applying the same rule, Muhamm;Ad tea' was given seniority from 19-2-1973. Name of Mian Tayyub Hassan appears at Serial No.216 of the Gradation List of CSP of March, 1973. He entered into Government service in 1964 and was appointed as Deputy Secretary on 8-3-1973. Names of Muizuddin Ahmed, Syed Abbas Hussain Shah and Sajjad Hussain, respondents, appear at Serial Nos .202, 204 and 205 respectively. All officers had not been promoted but applying the "next below rule" they were given seniority as Deputy secretary with effect from 8-3-1973. Hameed Akhtar Niazi, appellant, entered into Government service on 1-4-1963 but the "next below rule" had not been applied in his case. He was regularly appointed as Deputy Secretary on 9-4-1973. It would clearly prove that the respondents-Officers, who were far junior to the appellant, had been made senior by applying the "next below rule". The seniority of Walayat. Ahmed, respondent No. 2, was changed from 1-6-1973 to 26-5-1969 and that of Sarfraz Ali Shah, respondent No-3, from 14-9-1974 to 26-5- 1969. Rafiq Hussain Agha, Adrian Ahmed Ali, Muzaffar Mid Qureshi and Hameed Ahmed Qureshi were given seniority with effect from 17-7-1971, Ahmed Maqsood Hameedi, Asad Pervaiz Shah, Shamim Ahmed y,han and saghir Asad Hassan respondents, with effect from 30-9-1972. Mead pzhar was given seniority with effect from 19-2-1973 while Muizuddin Ahmed, Syed Abbas Hussain Shah and Sajjad Hussan, respondents, with effect from 8-3-1973. It would be worth while to mention that Adrian Ahmed Ali was appointed to officiate as Deputy Secretary vide Notification No.7/l/78- AV(II), dated 8-6-1978, Muzaffar Mahmood Qureshi and Hameed Ahmed Qureshi were promoted to Grade-19 vide Notification No.16/76-A(III), dated 26-6-1976, Shamim Ahmed Khan, respondent was appointed as Deputy Secretary on 14-3-1977, Saghir Asad Hassan promoted to Grade-19 vide Notification No.7/16/76-A-3-(III), dated 26-6-1976, Mead Azhar promoted as Deputy Secretary on 29-5-1976 or from the date he assumed the charge of Grade-19 post vide Notification Nos. 1 /3/76- CA and 1 / 1 /89-CA, dated 13-5-1979, Muizuddin Ahmed promoted to Grade-19 vide Notification No. 7/16/76-A-(III), dated 17-12-1976, Sajjad Hussain promoted to Grade-19 vide Notification No.7/16/76- A(III), dated 17-12-1976. On account of seniority given to the respondents on the basis of "next below rule", respondents Nos.2 to 15 were promoted as Joint Secretaries (BPS 20) between period from 4- 8-1979 to 30th May, 1980 as shown in the Gradation List (C6), which gave cause of action to the appellant, who was promoted as Joint Secretary (BPS-20) on 17-8-1980. The "next below rule" had opened the door to favouritism andnepotism.
24. The above facts would amply prove that the promotion of the defunct CSP officers, referred to above, with effect from the earlier dates was a clear case of "class favouritism and nepotism". The Establishment Division is the custodian of the rights of all civil servants. A duty is cast upon it to treat the officers of all Groups fairly, justly and equitably. The interests of all the civil servants are to be watched equally by the Establishment Division. Seniority is to be given strictly in accordance with law and the rules. The "class" or "group" favouritism has to be discouraged. The Establishment Division is under a legal obligation to act in an impartial manner. "Next below rule" has been misinterpreted and misapplied in this case to the advantage of many officers of defunct CSP and at the same time to the disadvantage of the appellant and number of officers of Lateral Entry.
Establishment
25. It is evident from the various lists issued by the Division that the appellant was appointed as Deputy Secretary on regular basis with effect from 9-4-1973. This fact is not disputed by the respondent-- Department. Walayat Ahmed, respondent No.2, was the senior most amongst the respondents. Provisional Gradation List, dated 20-11-1973 shows that he was appointed as Deputy Secretary on 1-6-1973. His date of seniority in Grade-19 has been mentioned as 1-6-1973. Gradation List of Deputy Secretaries of the Secretariat Group issued on 1-10-1975 indicates that the date of appointment of the appellant as Deputy secretary and date of seniority has been recorded as 9-4- 1973 while that of respondent-No.2 as1-6-1973 (mentioned at Serial Nos:91 and 99 respectively).
Same was the position of 'the appellant and respondent No.2 in the final Gradation List issued on 14-6-1976 where the names of the appellant and respondent -No.2 appear at Serial Nos.69 and 74 respectively, leaving no room of doubt that the appellant was senior to respondent No.2. This final Gradation List, dated 14-6-1976 was acted upon by the respondent-Department. The position did not change even up to 6-12-1979, when Gradation List was produced before the Supreme Court under the orders of the Honourable Judges in another Appeal No.37 of 1979. In that list, the names of the appellant and respondent No.2 appear at Serial Nos.36 and 41 respectively. The position, however, changed when another Gradation List of Secretariat Group (Grade-19) was issued but not circulated, which, according to the appellant, was issued surreptitously. This list did not see the light of the day as seniority of officers of defunct CSP was changed on the basis of "next below rule" and all the respondents alongwith some others were shown as senior to the appellant. This aspect has already been discussed in the earlier paras and we need not to repeat it.
26. Civil Services of Pakistan had become defunct after the Administrative Reforms announced by the Prime Minister in the year 1973. Civil Servants Ordinance, 1973 (Ordinance XIV. of 1973) was made by the President on 15-8-1973 and published in the Gazette of Pakistan, Extraordinary, on 15- 8-1973. Civil Servants Act, 1973, received the assent of the President on 26-9-1973 and published in the Gazette of Pakistan, Extraordinary, on 29-9-1973 repealing the Civil Servants Ordinance, 1973.
The Act came into force at once. All the terms and conditions of service were to be regulated according to the Act and the Rules framed thereunder. Article 241 of the Constitution provides that until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government. Seniority has to be determined according to section 8 of the Civil Servants Act, 1973. It is laid down in section 8(4) of the said Act that seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to the post. It is stated under proviso to section 8(4) that civil servants who were selected for promotion to a higher post in one batch shall, on their appointment to the higher post, retain their inter se seniority as in the lower post. "Next below rule" applied in this case is in direct conflict with the provisions of section 8 of the Act. The previous rule, which is in conflict with the provisions of the Act, must yield to the latter. Respondents Nos.2 to 15 were given seniority on the basis of "next below rule" as they were senior to Mubashar Lal Khan, Farooq Ayub, Ferozeduddin Ahmed, Razzaq Muhammad Ishaq and Mian Tayyub Hussain. It is pointed out that the case of the said respondents was not covered under proviso to subsection (4) of section 8 of the Act as they were not selected for promotion to the higher post in one -batch. Provisional Gradation List prepared on 20-11-1973 shows that both posts of Junior Administrative Grade and Deputy Secretary were in Grade-19. The contention of the respondent-Department that the post of Deputy Secretary was not a promotion post is refuted by the said entry. Rule 3(2) of the Civil Services of Pakistan (Composition and Cadre) Rules, 1954, provides that Assistant Commissioner or SDO or a person in an equivalent post could only be appointed to the post' of Deputy Secretary after he completes eight years of service. This rule has been amended and minimum length of service for eligibility for promotion to Grade-19 has been raised from eight years to twelve years. This amendment was made with the approval of the Prime Minister in 1974. Since respondents Nos.4 to 15 had not completed twelve years of service, the amendment was applicable to them and they could not be appointed in Grade-19 until they completed twelve years of service. The argument of the respondents that the amendment did not apply to their case is not tenable under the law. It is laid down in rule 8 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, that the Departmental Promotion Committee or the Central Selection Board as possess the qualifications and meet the conditions laid down for the purpose of promotion shall consider only such persons, as the case may be. Rule 8-A lays down that no promotion on regular basis shall be made to the post in BPS'18 to BPS 21 and equivalent unless the officer concerned has completed such minimum length of service as may be specified from time to time. A glance at the Gradation List (CS) would show that the date of entry 'as Deputy Secretaries of respondents Nos,3 to 15.was against the rules as they had not completed twelve years of service in Grade-17.
27. After the order of the remand passed by- the Honourable Supreme Court, the appeal came up for hearing on 3-9-1997. The representative of the Establishment Division, respondent No.l, was asked, whether respondents Nos. 2 to 15 had exercised option to remain in the Secretariat Group.
According to the direction as contained in para.4 of Serial No. 17, page 1014 of ESTACODE, 1989 Edition, but the representative replied that he had no such record. We, however, find following words under heading "Preface" to Gradation List (C4), dated 14-6-1976:-- ---Revised Gradation Lists of Officers in the Secretariat Group (Grade-23 to Grade-18) are published. In compiling these lists the option exercised by the Officers in response to Establishment Division Letter No. 2/4/75-I-IV, dated 2 October, 1975, have been taken into consideration.--- Names of respondent Nos. 2 to 15 find place in this list. These officers continued to remain in Secretariat Group. They shall be deemed to have opted for Secretariat Group.
28. On 3-9-1997, the representative of the Establishment Division was directed to prepare a Seniority List as per Para.8 of ESTACODE i.e. from the date of continuous regular officiation as Deputy Secretary or in' a post in Grade-19, whichever is earlier. He was also directed to submit the list by 4-10-1997. The appeal was adjourned several times due to the request of the counsel for the parties and deficiency in the Members of the Tribunal. The appeal came up for hearing on 12-9- 1998. The list required to be produced by 4-10-1997 was not produced. A request was made on behalf of the Secretary, Establishment Division, for giving fifteen days' time for producing the required list. Although sufficient time had already been given for this purpose yet for ends of justice, seven days' time was allowed for the production of the list. Written arguments were filed on behalf of respondent No.l by the representative of the Establishment Division on 1-10-1998 but for obvious reasons, the list was not submitted. Since the respondents were given promotion and assigned seniority against the rules, the Seniority List was not submitted.
29. After having considered all the material on record and the contentions of the learned counsel for the parties we accept the appeal filed by Hameed Akhtar Niazi with costs. He was senior to Walayat Ahmed, respondent No.2, who was promoted and given seniority in BPS 20 with effect from 4-8-1979. The appellant was eligible for promotion as he entered into Government service in Grade-17 on 1-4-1963 and promoted as Deputy Secretary on 9-4-1973. His name was required to be placed before the Central Selection Board which was not done. He was subsequently promoted in BPS-20 on 17-8-1980. The appellant stated before us that he retired from service in BPS 21. His promotions in BPS-20 and BPS-21 indicate that there was nothing adverse against him which could prevent him from promotion to higher grades. It is directed that the appellant shall be given ex post facto pro forma promotion in various grades from the dates Walayat Ahmed, respondent No.2, and other junior respondents were promoted. Due to revision of seniority, the pay and pension of the appellant shall be re-fixed and he would be entitled to pecuniary benefits. Necessary notification shall be issued within a reasonable time. Law has been laid down in cases of the Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCM R 304), Syed Sultan Shah v. Government of Baluchistan and another (1985 SCM R 1394), Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118), Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others (1996 SCM R 850) and Iftikharullah Malhi v. Chief Secretary and another (1998 SCM R 736) that a civil servant who is entitled to be promoted from a particular date was, for no fault of his own, wrongly prevented from rendering service to the Federation in the higher post, such civil servant shall be paid the arrears of the pay and allowance of such higher post through pro forma promotion or up-gradation arising from the ante-dated fixation of his seniority. Following the aforesaid decisions of the Honourable Supreme Court, we have given the abovementioned direction for re-fixation of pay, pension etc. of the appellant and his entitlement to pecuniary benefits.nd