' CH. MUHAMMAD ARIF, J,---By this common judgment we intend to dispose of the above 32 appeals, arising from the judgments dated 31-3-1998 and 19-8-1998 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No,785(R) of 1998 and Appeals Nos.688(R) to 691(R) of 1997 respectively.
2. The appeals are comprised of two sets. The first set consists of 27 appeals filed by the direct recruits while the second of 5 appeals filed by the Ministry of Defence and others..
3. The facts in brief are that the promotees/UDCs were initially recruited as LDCs in the Naval Headquarters and the Assistants were appointed as UDCs on different dates and promoted as such in the year 1985. A Draft Seniority List was prepared and circulated on 18-11-1987 in respect of both the categories of employees and representations were also invited, but none was filed.
Another Draft Seniority List was published and circulated on 11-5-1994 but it was also not represented against by any one. Yet another Draft Seniority List was prepared on 12-4-1997. In the first two Draft Seniority Lists, the inter se seniority of the promotees as well as direct recruits remained unchanged. The last Draft Seniority List, however, was not squarely identical with the earlier lists on which departmental appeals were made by some employees to the Assistant Chief of Naval Staff (Admn.), which were dismissed by the competent authority and the same was the fate of the second departmental appeals/representations made to the Assistant Chief of Naval Staff (Admn).
4. The aggrieved employees filed as many as 13 appeals before the Tribunal which were allowed with the observation that the appellants would rank senior to the respondents and the seniority list would be maintained accordingly.
5. In the first set of 27 appeals, leave was granted to consider the contentions of the learned Deputy Attorney-General and the learned counsel for the respondents as below:-- "6 Mr. Mansoor Ahmad, learned Deputy Attorney-General appearing on behalf of the Federation of Pakistan in the above petitions and also on behalf of the petitioners in Civil Petition No,1152 of 1999, A argued that the Tribunal wrongly relied on Rule 6 of the Civil Servants (Seniority) Rules, 1993, as the disputed seniority pertaining to the year 1985, could not be governed thereunder retrospectively. He further argued that the Tribunal failed to appreciate that the departmental appeal of respondent No,6 was barred by nearly twelve years. Relying on the principle of locus poenitentiae, it was contended that the vested rights accrued to the promoted Assistant in service could not be denied after a lapse of twelve years."
"7 Mr. Fazal Elahi Siddiqui, learned counsel for the respondents/caveators in Civil Petitions Nos 1116, 1127, 1132 and 1152 of 1999, contended that the impugned order passed by the Tribunal was in accordance with law and did not suffer from any legal infirmity whatsoever to warrant interference."
"8 In the case of Federation of Pakistan and others v. Muhammad Sharif Sabir and others (1999 SCM R 185) it was held that the Civil Servants (Seniority) Rules, 1993 are prospective in nature and would supersede all practices, instructions and office memoranda in the sphere of fixing seniority of civil servants."
6. In the other set of 5 appeals, filed by the Ministry of Defence, leave was granted to consider the respective contentions of the parties detailed in paragraphs 3 and 4 of leave grant order, dated 24-9-1999 which reads thus:- "3. Mr. Tanvir Bashir Ansari, the learned Deputy Attorney-General, inter alia, submitted that the inter se seniority of the respondents remained the same in all the three seniority lists published in 1987, 1994 and 1997 and therefore, objection, if any, to the seniority assigned to the respective respondents in the list should have been raised at the very initial stage when the first list was published in 1987. This having not been done the question of seniority amongst the respondents attained finality and the matter became past and closed, accordingly, the representation of the respondent No,1, their departmental appeals and the service appeals before the Tribunal were all not maintainable and were barred by time."
' Mr. Fazal Elahi Siddiqui, the learned Advocate Supreme Court appearing for the respondent No,1 in each of these petitions, supported the impugned judgment. His contention was that the seniority assigned to the respondents under the three lists was not sustainable being in conflict with the applicable rules and further that, in any case, on publication of each seniority list fresh cause of action accrued to the said respondents to seek correction of the entries."
7. Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General appearing on behalf of the Ministry of Defence argued that the Tribunal erred in treating the Civil Servants (Seniority) Rules, 1993 (hereinafter referred to as 1993 Rules) to be retrospective in operation while resolving the question of the inter se seniority of the promotees and direct recruits in Draft Seniority List. According to him, 1993 Rules are only prospective in operation. Explaining his argument further he submitted that in 1987 General Principles of Seniority, issued vide Q.M. No,1/16/69-D.II dated 31st December, 1970 (Refer ESTACODE, 1989 Edition, p.225), were in operation and the same were recognized while preparing the Draft Seniority List of the year 1987, which continued in operation till 1994 when an identical Draft Seniority List was prepared on 11-4-1994 and the latter Draft Seniority List was prepared afresh on 12-4-1997 whereafter the present litigation ensued between the contestants. He next argued that, as per recruitment rules, ratio of 50:50 was required to be followed in promotion and direct recruitment but the same was not strictly adhered to by the department. The promotions were made in excess of 50 per cent, quota by utilizing the quota reserved for direct recruitment with the result that as against the sanctioned strength of 140 posts, instead of the ratio of 70:70 being maintained, the promotees far exceeded their quota whereas the direct recruit remained at the lower rung, inasmuch as, the strength of promotees shown in the Draft Seniority List is 83 and that of the direct recruits 39. As the promotions were in excess of the quota, it was pleaded, the promotees partook of the posts which were reserved for the direct recruits. Mr. Ansari referred to Muhammad Yousaf and 4 others v. Abdul Rashid and others (1996 SCM R 1297) to contend that the application of the General Principles of Seniority dated 31-12-1970 was in order, therefore, the Tribunal could not upset the Draft Seniority List of the year 1997 on the touchstone of 1993 Rules. He concluded his arguments by submitting that the matter in relation to the inter se seniority of the promotees and the direct recruits was a past and closed transaction and, looked at from that angle, the impugned judgment/s of the Tribunal cannot be sustained. Moreso for the additional reason that more than a decade had gone by before any one of the promotees woke up from his deep slumber.
8. Mr. Fazal Elahi Siddiqui, learned Advocate Supreme Court, appearing on behalf of the private respondents commenced his arguments by submitting that the learned Law Officer further confounded the already confused matter, in that, the only question on which his clients based their arguments before the Tribunal was that Ministry of Defence was not possessed of any jurisdiction to change the entire system by relying upon 1993 Rules after the year, 1990. However, he argued that the only question before the Tribunal was whether the decision of the departmental authorities that the benefit of seniority to promotees will be given only after 1990 not before, was justifiable in law. He was also of the view that the provisions of Rule 6 of 1993 Rules are akin to General Principles of. Seniority of 1970. The precise contention was that 1993 Rules are pari materia with the General Principles of Seniority. He referred to Memorandum dated 21st November, 1994, which reads as under:- "TO:ALL DATES/SECTIONS OF NHQ ISLAMABAD/KARACHI FROM: DY. D .C, A REF : A0/0708/A-1 DATED: 21 NOV. 94 TELE: EXT-334 Subject: SENIORITY ROLL OF ASSISTANT Reference: A. DDCA Memo. No,A0/0708 A, dated 11 May'94.
B. DCAMemo. No,AO/0708/A, dated 18 Nov '87.
(1) A draft Seniority Roster of Assistants was circulated to all dates/Sections of Naval Headquarters vide Memo. At reference 'A'. Serial Nos.1 to 81 of the Seniority Roster was a reproduction of Seniority Roster issued earlier vide Memo. At reference "B", while seniority of those Assistants was assigned for the first time who were promoted/appointed after Serial 81. A number of representations have been received with reference to draft Seniority Roster on the basis of following provisions of Rules:- "Officers promoted to the higher grade in a continuous arrangement and as a regular measure in particular year shall as a class be senior to those appointed by direct recruitment in the same year."
(2) After considering the rule position and other implications of the case, it has been decided to accept the representations made against the seniority positions assigned for first time in the above draft Seniority Roster. Subsequent Seniority Roster will therefore be issued keeping in view the above provisions of rules.
(3) Cases already settled shall not be re-opened as the same are time-barred.
' RANK: G-1(CIV) NAME: INAM-UL-HAQ SIG; SD/- ' APPOINTMENT: DY. DIRECTOR CIVILIAN ADMINISTRATION"
' According to him, the Tribunal was not in error in granting relief to his client through the impugned judgments.
9. M/s. Muhammad Rashid, Attiq Ahmed Siddiqui and Iftikhar Saleem, three appellants in Civil Appeals Nos.251 to 277 of 2000 have appeared in person and contended that the delay of more than 12 years have been condoned by the Tribunal without any justification and that they could not be made to suffer as has been done by the Tribunal. .
10. We have considered the arguments advanced at Bar and have also perused the available material with the help of the learned counsel for the parties. All sides are one on the question that no exercise whatsoever was made in the past by the Ministry of Defence to determine the seniority of direct recruits and promotees on the strength of the fixed quota and/or to attend to any situation which might arise for resolving the inter se seniority of the direct recruits and the promotees within one calendar year. Same is the position with regard to the fact that none of the parties, including the Ministry of Defence, based their respective arguments for the maintenance or otherwise of any one of the Draft Seniority Lists of the years, 1987, 1994 and 1997 on account of any shortcoming therein on the basis of the failure on the part of the Ministry to give effect to the quota of 50:50 for the direct recruits and the promotees. This situation was noticed in the leave granting orders and the learned counsel for the parties have addressed themselves to that aspect of the case before us as well. In Muhammad Yousaf (supra) this Court, dealing with a situation almost akin to that of the parties herein, observed: "16. From the preceding discussion, it emerges that the seniority of a civil servant promoted to a post, service or cadre takes effect from the date of his regular appointment to that post. The expression 'regular appointment' as interpreted in General Principles of Seniority, issued by the Government on 31-12-1970, in relation to a civil servant promoted to a higher post means, not the date of his actual appointment to that post but the date on which he could have been promoted, if the quota had been properly followed. The above interpretation of word 'regular appointment' in paragraph B (iii) (c) of O.M. No,1/16/69-D.II, dated 31-12-1970 was found to be in harmony with the language of sections 8 and 9 of the Act in Azam Ali's case as follows:-- 'If section 9 of the Act is not kept in view there may be scope for arguing that the expression 'regular appointment' has been given an extended meaning. However, if the provisions of section 9 of the Act are kept in view then the meaning given to the expression 'regular appointment' will appear to be in accord not only with section 9 but also with the other provisions i,e, subsection (2) of section 2 of Civil Servants Act; section 8, subsection (4) of the Act and section 2, subsection (1), clause (f) of the Act. There is no inconsistency or repugnancy. On the contrary, it would appear to be in harmony' "
' As already observed in the immediately preceding paragraphs that the Ministry of Defence did not make any effort in the past to resolve the controversy between the direct recruits and the promotees, therefore, there inaction can neither furnish a ground for any one of the sides here 'nor cause prejudice to either of them. The seniority amongst the direct recruits, namely, appellants and the promotees i,e, the respondents is to be re-fixed in view of the observations made in Muhammad Yousuf (supra). The seniority of departmental promotees is to be reckoned from the date of their regular appointment in the post as required by section 8(4) of the Civil Servants Act, 1973. The Draft Seniority List of 1997 is defective as it has closed the doors of bringing everything on the right rails for the purposes of resolving the dispute between the direct recruits and the departmental promotees on the. Ground that the cases already settled could not be re-opened as the same were time-barred.
11. As the question regarding the determination of seniority amongst private litigants cannot be attempted at this stage and as even the Tribunal did not bring any one of the relevant factors to bear upon its impugned judgments dated 31-3-1998 and 19-8-1998, we are inclined to dispose of these appeals by setting aside the impugned judgments and remanding the case to 'the departmental authorities to decide the dispute of seniority in the light of the observations made above and without treating the representations made by the affectees as time-barred within 6 months of the receipt of the copy of this judgment under intimation to the Registrar of this Court.
Order accordingly. No costs.