' MUHAMMAD AYUB KHAN (MEMBER).---Before discussion of the facts of the instant appeal in hand it is considered advisable to make a reference to the Law prior to the enactment and promulgation of the National Highway Authority Act, 1991 (hereinafter referred to as the Act) and such law was known as National Highway Board Employees Service Rules, 1974, framed under the powers delegated to the National Highways Board by the Federal Government under Resolution No,4(I) SO- Indus/74, dated 4th December, 1974, which took immediate effect and per rule 2:1 these were made applicable to: "(i) all the employees in full or part time employment of the board, including those who
(a) were on contract basis; or
(b) were re-employed; or
(c) were on deputation ' and were working either in the Board's Office or its subordinate Offices except those categories where statutory provisions for sch categories existed."
2. It appears, if we are not wrong, that the Board's Rules of 1974 do not stand superseded either by the Act or the rules known as National Highway Authority Employees Service Rules, 1995, (hereinafter called as the Rules). This has created an anomalous situation. Ordinarily, the succeeding law supersedes the earlier enactment whether original (Act/Ordinance) or subordinate i,e, Rules. Regulations. Anyhow we are not concerned with this aspect of the matter.
However, it is made clear that almost all the definitions as per definition clause (rule 2 of the Rules), the same have been copied from the Board's Rules with few exceptions here and there. However, by implication the Board's Rules stand superseded by the Rules.
3. Now coming to the facts of the instant appeal it is alleged by the appellant that the Organization of the National Highway Authority (hereinafter referred to as the NHA) prior to its establishment had two categories of employees:-
(a) Regular employees appointed against 146 regular sanctioned posts, and
(b) Work charge employees appointed against affiliated projects on PC-I posts, which posts were for specific duration till completion of project which was its sole purpose (para.2 of the appeal).
It is further contended by the appellant that he was appointed in the NHA as Assistant Director Engineer (B-17) on regular basis with effect from 25-3-1993 whereas Respondents Nos,2 to 24 were already working on work charged basis and inducted under rule 20(2) of the Rules with effect from 9th March, 1995, which appointment, it is argued, at the most, can be considered as initial/regular appointment and in this respect the appellant claims seniority under rule 17(I) and (2) of the Rules which provide:-- "(i) inter se seniority as in the lower cadre or post shall be retained,
(ii) persons promoted shall rank senior to the persons recruited the same calender year."
' The question for consideration is as to whether the appellant can be considered/treated as promoted officer and the said respondents as direct recruits under rule 20(2) of the Rules.
4. Reliance is placed on subsection (4) of section 8 of the Civil Servants Act, 1973 and rules 4 and 6 of the Civil Servants (Seniority) Rules, 1993 which read:-- ' Section 8(4): "Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: ' Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post retain their inter se seniority as in the lower post."
' Rule 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:" and ' Rule 6: "Inter se seniority of civil servants appointed in the same calender year.--and person promoted to higher posts in a particular calender year shall as a class, be senior to those appointed by initial appointment to such posts in that year."
In this respect we have got the privilege to go through the opinion, dated 26th August, 1997, rendered by the Ministry of Law and Justice (Law section), Islamabad, as well as the one given by the Establishment Division and do not find ay material difference with regard to its overall import which in effect is crystal clear in the sense that seniority reckons from the date of regular appointment to the grade post despite the fact that many objections were raised to the rendering of these two opinions specially the one given by the Ministry of Law and Justice. The overall import is considered and not the apparent tenor. The overall import is unambiguous and calls for no doubt in any manner. These two opinions are based on the established principle that "seniority reckons from the date of regular appointment". This is the general discussion relating to the principle of law.
5. The appellant felt aggrieved by the impugned order, dated 10-9-1997 vide which his seniority was disturbed but wrongly, according to him, allegedly on the basis of ruling of the Law and Justice Division, he preferred a departmental appeal on 9-10-1997 which, though well within time yet was rejected on 6-1-1998 and thereafter, he filed the present service appeal in this Tribunal on 6-2-1998 which when measured from the date of the impugned order and rejection of the departmental appeal, is within limitation.
6. Perusal of the record indicates filing of para-wise comments by respondent No,1, represented by Sh. Iftikhar Hussain, Advocate, respondents Nos, 2 and 4, represented by Mr. Abdul Rahim Bhatti, Advocate, and respondent No,5, represented by Mr. Fazal Elahi Siddiqui, Advocate, whereas rest of the respondents did not bother to file the same. The comments filed by Mr. Abdul Rahim Bhatti, Advocate, are elaborate and self explanatory whereas the comments filed on behalf of respondent No,1 consisting of one and a quarter page are of formal nature and at the end of which it has been recorded that:-- "The seniority list, dated 10-9-1997 has been issued on the instruction of the Ministry of Communications and advice from Law and Justice Division. It is, therefore, submitted that the appeal may kindly be judged on its merit."
' The Power of Attorney of Mr. Fazal Elahi Siddiqui indicates that respondent No,5, Mukesh Kumar, is his client and is duly signed by him. The comments filed by him are neither legible nor properly filed. The appellant has also filed replication to the parawise comments.
7. Respondents Nos,2 and 4 have filed documents (R/1 to R/4) with their parawise comments which are briefly discussed with reference to the masterial facts of the appellant's case. Document R/1 is a notification, dated 23-12-1993 vide which the appellant inter alia was absorbed as Junior Engineer (BPS-17) in the Sarhad Hydel Development Organization with effect from 1-1-1991 and vide Annexure R/2 the appellant on approval by the Competent Authority, was appointed on deputation in B-17 in the NHA for a period of two years on the usual terms and conditions with effect from 12-6- 1995 and under Annexure R/3 the Government of N.-W.F.P., Planning, Environment and Development Department (Power Section) by letter, dated 25-10-1995 intimated the Deputy Director (Personnel), National Highway Authority, Islamabad, that the Government of N.-W.F.P. Had no objection to the regular absorption of the appellant in NHA. No doubt Annexure R/4 is a copy of recommendations by Departmental Selection Committee for promotion from B-17 to B-18 of the incumbents of the Engineering/Technical Cadre which includes name of the appellant at Serial No,32 as well as names of respondents Nos,2 to 24 but we could not follow the relevancy of this document with respect to the controversy relating to inter se seniority of the appellant and the respondents. Mere recommendations by the Departmental Selection Committee carry no legal substance, while the order/notification, if any, was required to be placed on the record. It is to observe that following special remarks have been recorded against the appellant at Serial No,32 in the minutes of the Departmental Selection Committee:-- "Recommended for promotion on acting charge basis. He may be promoted to BS-18 on regular basis w.e.f 1-1-1996." ' which remarks have not been recorded in respect of rest of the incumbents. These remarks at the most can be considered as discriminatory.
8. At para.3 of the replication directed against the parawise comments of respondents Nos,2 and 4 it has been indicated that:- "By opting for becoming employees of the National Highway Authority, the replying respondents retained the same 'Work Charge Status' after becoming employees of the National Highway Authority. The mere exercise of option never altered their status nor automatically conferred the status of a 'regular employee' on them. If it were so then this entire exercise of regularisation would be reduced to force."
' The fact of the matter is that the entire process of the so-called regularization of the replying respondents is to be examined in the light of the 'National Highway Authority Employees Service Rules, 1995'. These Rules prescribe a yardstick for seniority under Chapter-III in rule 15, which for convenience sake is reproduced:-- 'An employee shall take seniority in his cadre from the date of his regular initial appointment.'
' Rule 20(2) is in direct conflict with the above rule 15, and, on the face of it, there is no cohesion between the two. Obviously rule 20(2) has the effect of rendering rule 15 as redundant. Rule 20(2), as framed, does not have the curative effect with retrospect, as alleged, as it has the effect of setting at naught rule 15." ' and at the end of this lengthy Para.3 the following observations are available:-- "In this view of the matter this is a very big anomaly which needs to be adverted to by the Honourable Tribunal by striking down rule 20(2), as having been framed incompetently and in brazen disregard of the widely reconcised and oft-proclaimed principle and dogmatic scruples for determining seniority of employees."
SENIORITY
9. According to rule 15 of the Rules, seniority of an incumbent is taken in his cadre from the date of his regular initial appointment whereas rule 20(1) provides that:- "(a) The seniority of all employees who opt for transfer from the National Highway Board's permanent establishment to the Authority shall be reckoned from the date of their initial appointment/promotion in National Highway Board in that post." ' and as per rule 20(2)
"(b) the seniority of the erstwhile Workcharge employees of the Authority serving in the projects shall take effect, on induction by the competent authority, from the date. Of the notification of these Rules. However, their service as Workcharge Employees will count towards qualifying service for consideration for promotion and for pay and pension."
' Rule 20(2), specially the last few lines, is not properly styled but its import is evident/clear. It is not proved that the respondents were included in the regular employees, reportedly numbering 146 and admittedly their services as work charge employees under the Board were to be regularized from the date of notification of the Rules which is .9th March, 1995 and while reverting to the case of the appellant it appears that he was appointed on deputation in B/17 in the National Highway Authority for a period of two years with effect from 12-6-1995 which was confirmed by the Government of N.-W.F.P. Planning, Environment and Development Department, that it had no objection to the permanent/regular absorption of the appellant in the National Highway Authority vide its letter, dated 25-10-1995. All it means that the appellant stood permanently absorbed with effect from 12-6-1995 and prior to that he was a deputations. Strictly speaking and as a matter of rule his seniority can better be reckoned from the date of the letter, dated 25-10-1995 (Annexure- R/III), and thus, even if reckoned from either, date 12-6-1995 or 25-10-1995 he stands junior to the private respondents. As per the facts of the impugned Seniority List annexed to the impugned order, dated 10-9-1997, available at Page 64 of the file, he appears to be junior with respect of B.17 incumbents vis-a-vis the respondents who all were promoted/appointed prior to the date of the induction under the National Highway Authority as well as his induction in B-18 on 1-1-1996 vis-a-vis the respondents who all are required to be shown with effect from the date of notification of the Rules i,e, 9th March, 1995 instead of 31-10-1995. The latter date is unwarranted and not justified under Rule 20(2) of the Rules which takes effect from the date of notification of the Rules i,e, 9-3- 1995.
10. According to rule 19 of the said Rules "Deputationists, Contract employees and Workcharge/Casual Employees shall not be shown on the Seniority Lists of various cadres" and as such prior to regular induction of the appellant with effect from 25-10-1995 when the Government of N.-W.F.P. Agreed to his permanent/regular absorption in the National Highway Authority, he cannot claim seniority.
11. Pursuant to the aforesaid discussion this appeal fails and is hereby dismissed leaving the parties to bear their own costs. All concerned may be informed accordingly.