' ROSHAN ALI MANGI (MEMBER).---The appellant has challenged the Seniority List circulated vide order, dated 24-2-1997, whereby his name has been excluded. He submitted departmental appeal through proper channel on 12-3-1997 which was rejected vide letter, dated 24-5-1997, received by the appellant on 28-5-1997. Hence this appeal.
2. The appellant was initially appointed as L.D.C. In the Ministry of Communication on 18-10-1965 and promoted as U.D.C. On 19-4-1968. He joined the Bureau of Emigration and Overseas Employment as. Assistant in 1979.
3. He got appointment of Orientation and Briefing Officer (B-16) on 9-1-1984 on ad hoc basis. Later on he was regularised w,e,f, 19-8-1986 through Federal Public Service Commission. He was appointed against the Punjab quota.
4. The appellant according to him being entitled to B-17 as Assistant Director against the promotion quota, applied for promotion through proper channel on 9-2-1988. He was informed by respondent No,3 (D.G. Bureau of Emigration and Overseas Employment), that promotion to the post of B-17 and above are being dealt with by respondent No,1 (Secretary, Ministry of Labour, Manpower and Overseas Pakistanis).
5. Therefore, he made two applications one on 6-4-1988 and the other on 11-4-1988. He was informed vide letter, dated 9-6-1988 that after finalisation of Seniority List of B-16 Officers, who are eligible for promotion, his case would be considered for promotion to the post of Assistant Director on the basis of seniority-cum-fitness.
6. Initially a Provisional Seniority List was circulated on 4-5-1989.
This list was based upon different categories of staff working in the Bureau of Emigration and Overseas Employment. The appellant was shown in the category or Orientation and Briefing Officer and assigned seniority at Serial No,4. This position according to him was incorrect, thetefore, he submitted his objections on 18-5-1989. According to the appellant no response was made to his objections.
7. Another Seniority List on cadrewise basis was circulated on 23-5-1992, his position was shown to the same number i,e, Serial No,4. This time, again, the appellant raised objections on 18-10-1992.
8. A 3rd time again the respondent-departemnt issued a combined seniority list. According to the appellant it was a provisional and circulated on 29-9-1992. In this list his name was exhibited at Serial No,8. This time a deviation was made from the earlier provisional seniority list wherein the name of appellant was shown at Serial No,4. Being aggrieved the appellant made again a representation to respondent No,1 on 24-1-1994. That representation remained unresponded to for considerable time However, respondent No,1 called for the comments from respondent No,3 in aforesaid appeal. Respondent No,3 constituted a Committee for preparation of comments, on the representation of the appellant. That committee examined the appellant's representation and recommended that the case of the appellant be accepted as it contained legal justification for the claim. Although the recommendations were submitted to the respondent No,1 yet the needful was not done. In the meantime a final combined seniority list of Grade-16 officers was issued on 24-2- 1997 wherein the name of the appellant was missing.
9. The appellant has taken the following grounds:- I. That the impugned order is against the law and facts. II. That there were 5 regular posts existing in the office of respondent No,3 i,e, Bureau of Emigration, which were referred to Federal Public Service Commission for selecting suitable officers, the appellant was one of the selectees. Since he was already working against the existing regular vacancy he should, therefore, have been regularised from the date of his ad hoc appointment. However, he was regularised one and half year afterwards. As such he was deprived of the benefit of his ad hoc service. III. That while submitting his application for his promotion, he was informed that seniority list of B-16 officers, who were eligible for promotion was under process and that after finalisation the case for promotion to B-17 would be taken up on seniority-cum-fitness basis. However, this was not done. During this period the illegalities of the highest order based upon mala fides, nepotism and favouritism were committed by the respondent department for adjusting the persons of their own choice. The persons who were not at all eligible to be brought in B-16, were inducted erroneously in violation of the rules. For example respondent No,5 (S. Masood Ali) was illegally promoted as Welfare Officer (B-16) vide order dated 4-7-1992 but was given presumptive seniority w,e,f, 25-11-1985. According to him under the existing rules, Welfare Officer (B-16) and Superintendent (B-16) were two different cadres. The respondents could not be given presumptive seniority as Superintendent w,e,f, 15-11- 1985, as he was not eligible to be adjusted to the post of Welfare Officer. As such his promotion was irregular. IV. That Similarly respondent No,6 who was working as Stenographer in the office of respondent No,3, was illegally promoted as Superintendent (B-16) on 10-4-1984 against 10% quota, allocated to the Stenographers. The said quota was not available due to the reasons that another Stenographer Mr. Abdul Bari had already availed the same. Yet another person, namely Mr. Shafqat Sultan respondent No,7 was illegally absorbed from Superintendent (B-16) to the post of Admn.
Officer (B-16) in contravention of SRO dated 20-4-1988.
V. That- Respondent No,8 was working as Assistant who was approved for promotion as Superintendent in B-16 on 28-12-1986 when there was no vacant post of Superintendent, the same was made available on 1-9-1988 therefore, the said respondent could not be held to be holding any regular posts of B-16, as such could not be promoted as Assistant Director (B-16).
VI. That Respondents Nos. 9 to 11 are pro forma respondents, they have been made party because the appellant appeared alongwith them before the Federal Public Service Commission.
VII. That when the appellant moved an application for promoting him to the post of Assistant Director (B-17), the respondents Nos. 5 to 8 were not in Grade-16. They were not included in the provisional seniority list issued on 4-5-1989. Their posts were not feeding posts for the promotion to the post of Assistant Director. This position thus, remained unaltered while another seniority list was issued. VIII. That Respondents Nos.5 to 8 were not at all eligible to be promoted as Assistant Directors (B-17). However, they were erroneously promoted alongwith appellant vide Notification dated 7-12-1993. Since the abovementioned respondents were not eligible to be promoted, therefore, they cannot be equated with the appellant for promotion. IX. That in the combined seniority list, which was provisional and was issued on 29-9-1992, the names of respondents Nos.5 to 8 for the first time, appeared at Serial Nos.5; 6 and 7, and the appellant was shown junior to them at Serial No,9. Since the above named respondents could not be equated with the appellant, their names were wrongly invalided over and above the appellant. X. That although Committee had made recommendations in favour of the appellant but to these recommendations, no heed was paid. XI. That since the appellant was inducted on the basis of open advertisement and test interview in the batch of 1985, he is therefore, entitled to count his seniority with the batch of 1985.
This legal proposition had come to the scrutiny before the Hon'ble Supreme Court in the similar circumstances, in Civil Petition No,348-R of 1984 (M. Anwer Butt) v. Secretary, Ministry of Labour and others and Civil Petition No, 201/R of 1985 (S. Meher Badshah v. Secretary Ministry of Labour) wherein the Hon'ble Supreme Court had ruled that the direct recruit to the post as the appellant is, shall rank senior to the promotee as in the case of respondents Nos. 5 to 8.
XII. That the final order dated 24-5-1997 is fanciful and arbitrary and the same is also violative of Civil Servants (Appeals), Rules, 1977 and also the dictum of law laid down by this Hon'ble Tribunal as well as by the Hon'ble Supreme Court.
XIII. That respondent No,1 has acted illegally and with material irregularity while disposing of the appeal hastily without giving personal hearing to the appellant.
XIV. That since the appellant was not given correct seniority position in the seniority list, therefore, respondent No,3 vide Office Order No,52-A/97 dated 27-2-1997 had placed the appellant in the surplus pool with immediate effect and in derogation of Rule 3 of Civil Servants (Appointment, Promotion & Transfer) Rules, 1973. In this connection the appellant has invoked the Constitutional jurisdiction of Hon'ble Lahore High Court Rawalpindi Bench vide Writ Petition No,364 of 1997, which is sub judice before the High Court.
10. With these submissions it has been prayed to set aside the final order dated 24-5-1997 whereby the appellant's appeals filed by him on 24-1-1994 and 12-3-1997 respectively, were disposed of by a single order and direct the respondents to promote the appellant by antedating his promotion on the basis of merit assigned to him by the FPSC in the batch for the year 1985 i,e, w,e,f, 9-2-1988 instead of 2-12-1993. And he be declared senior to respondents Nos. 5 to 11 with consequential benefits. Any other relief to which the appellant is considered to be entitled in the circumstances of the case, may also be granted.
11. The comments have been filed on behalf of the Bureau of Emigration and Overseas Employthent and the Federal Public Service Commission. Comments have also been filed by respondents Nos. 9, 10 and 11. However, Private Respondents Nos.6, 7 and 8 have not filed their comments.
12. In their comments filed by respondent No,3 i,e, Bureau of Emigration, it has been stated that the appellant joined the Organization as Assistant on 1-3-1979. He was appointed as Orientation and Briefing Officer on ad hoc basis on 9-1-1984. Subsequently he was recommended by FPSC for appointment as 0 & B Officer vide letter dated 19-8-1986. The Bureau of Emigration and Overseas Employment initially sent requisition of 3 posts of 0 & B Officers i,e, Sindh (R)-1, N.-W.F.P.-I and Punjab-1 to the FSPC on 1-11-1984. In consequence of which the Commission recommended the following 3 candidates vide their letter dated 11-11-1985:--
(i) Mr. Ghulam Hussain Talpur Sindh (R)
(ii) Mr. Habibur Rehman N.-W.F.P.
(He did not join and he was replaced by alternate Mr. Muddassar Ali Shah).
(iii) Mr. Muhammad Ilyas. Punjab
13. The appellant appeared for interview alongwith the above named officers, but he was not selected due to low merit assigned by the Commission. Subsequently two posts of 0 & B Officers were fallen vacant due to the promotion of M/s Muhammad Qasim Bhutta and Rizwan Ahmed to the post of Assistant Director in the year 1986. Therefore, fresh reference was sent to FPSC on 24-7- 1986 for recruitment of said two 0 & B Officers, one against merit and the other against Punjab quota. In response to second requisition, the FPSC recommended the name of the appellant against Punjab quota as fresh selectee vide their memo. Dated 19-8-1986. It is quite clear from the nomination letter of FPSC referred to above, that the appellant was selected against fresh vacancy from the panel of 1985 in order to avoid lengthy procedure of fresh advertisement.
14. No doubt the appellant was holding the said post on ad hoc basis from 19-5-1986 to 18-8-1986 prior to fresh selection by FPSC. However, he cannot be given the seniority of his ad hoc period as laid down in subpara.(a) of para. A (iii) of ESTACODE which is reproduced below:-- "(a) If the person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation by the FPSC."
15. Accordingly the appellant was assigned seniority from the date of his regular appointment by the FPSC, i,e, 20-8-1986.
16. The appellant agitated against his seniority. A committee was constituted to examine the case.
It recommended his seniority with the batch of 1985. The case was re-examined in the Bureau and referred to the Manpower Division for soliciting advice from the Establishment Division for reckoning his seniority with the batch of 1985 or 1986. The Establishment Division Vide their O.M. Dated 28-4- 1997, opined as under:-- "The undersigned is directed to refer to the correspondence resting with the Manpower and Overseas Pakistanis Division's O.M. No,8(2)/ 94-Estt/Emig. I, dated the 24th March, 1997 on the above subject and to state that Mr. Rabbani will reckon seniority from the date he joined the post after approval of the competent Authority on the recommendations of FPSC. Promotees of the respective calendar year (1986) would rank senior to him."
17. The appellant was accordingly informed of the above decision vide letter dated 24-5-1997, against which the appellant has come in appeal before this Honouable Tribunal.
18. It has been clarified by the respondents department that the above advice of the Establishment Division is quite lawful as laid down under general principle of seniority at page 277 of the ESTACODE 1989, which is reproduced below:-- ' Departmental promotee vis-a-vis direct recrutee Officers promoted to the higher grade in a continuous arrangements and as a regular measure in a particular year shall as a class to be senior to those appointed by direct recruitment in the same year' ."
19. It has been rebutted if there were 5 posts of 0 & B Officers in the year 1984. It has been clarified that initially there were 3 posts, which were sent to the FPSC for recruitment, as already explained above. Later on, two posts fell vacant due to the promotion of two 0 & B Officers to the posts of Assistant Director (B-17).
20. The appellant was not selected with the group recommended by FPSC in 1985. Therefore, the stand of the appellant is not correct.
21. It has further been clarified that the appellant was given benefit of his ad hoc service except seniority which was reckoned from the date of joining the post after nomination by FPSC i,e, 20-8- 1986.
22. With regard to objection of the appellant against promotions appointment, of respondents Nos.5, 6, 7 and 8 it has been clarified that Mr. Masood Ali, respondent No,5, was previously approved in absentia during his posting abroad in the office of Community Welfare attached Office, Riyadh by the DPC held on 25-11-1985 and 28-12-1986 respectively. On joining his duty from abroad, it was decided that respondent No,5 who stood promoted could enjoy pro forma seniority as Superintendent (B-16) w,e,f, 25-11-1985 while temporarily working as Welfare Officer (B-16) as stop gap arrangement.
23. Respondents No,6 and 7 while holding the post of Superintendent were approved for appointment as Admn. Officers by the DPC held on 28-12-1986. Their appointments were made in accordance with the Bureau's recruitment rules of 1984 which remained operative till 19-4-1988.
Under the said Rules, 100% vacancies of Admn. Officers (B-16) could be filled by promotion from amongst the Superintendent Assistant Stenographer and Hostel Superintendent.
31. After examination of the above points, we come to the following conclusions:--
(i) We have examined the rule position. We find that the period of ad hoc appointment cannot be counted towards seniority. In this regard, we reproduce below sub-para. (a) of para. A (iii) of General Principles of Seniority.
"(a) If the person was already holding the same post on ad hoc basis, he would count his seniority from the date of recommendation by the FPSC."
' In the light of this, we repel the argument of the appellant that his ad hoc period be counted towards seniority.
(ii) In this regard, we quote para.0 of General Principles of Seniority, which reads as under:
(iii) "Departmental promotee vis-a-vis direct recruits: Officers promoted to the higher grads in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year."
Since the appellant was nominee of 1986 batch, because he was nominated appointed by the FPSC on 19-8-1986, he cannot claim seniority over the respondents who were promoted departmentally in 1986. The private respondents were promotees. The appellant being a fresh appointee, would stand junior to them, as per rules, quoted above.
(iv) If there was any irregularity, the appellant should have challenged at that time by way of an appeal before this Tribunal. Now, since too much water have flown down the river, irregularity if at all committed in the past cannot be redressed now at this belated stage. Although in our opinion, there was no irregularity committed.
32. For the foregoing reasons, the appeal having no merit is dismissed.
33. No order as to costs. Parties be informed.