' MUHAMMAD AYUB KHAN (MEMBER).---As per facts of the case duly incorporated in the appeal are that the appellant, Naism-urRehman, an Assistant promoted as such on 6-2-1986 was declared surplus by the Ministry of Women Development vide order, dated 21-10-1993 (Annex-F) whereby his services were placed at the disposal of Prime Minister's Secretariat, Islamabad for further posting in the Office of Pakistan Investment Board, Islamabad having been rendered surplus as a result of recommendations of the Economy Commission under Rule 3(3) of the Government Servants (Appointment, Promotion and Transfer) Rules, 1973. It appears that he was absorbed in the Board of Investment and sometime the latter had prepared and issued final seniority list, dated 15-1-1998 (Annex-D) consisting of two pages (D-1 and D-2), the perusal of which indicates that the appellant was placed at the bottom of this list vide Sl.No,16. Feeling aggrieved from this, he preferred a departmental appeal, dated 12-2-1998 (Annex-B) wherein he stated that he may be allowed seniority from 6-2-1986 when he was promoted as such but his request was not acceded to and hence rejected by the competent authority vide rejection order, dated 18-2-1998 (Annex-A) and thereafter he filed a service appeal on 18-3-1998 in this Tribunal which is well within time.
2. We have heard the arguments and also perused the record. Examination of the appeal indicates that Secretary, Establishment Division, Government of Pakistan, Islamabad and Secretary, Board of Investment, Government of Pakistan Islamabad (official respondents 1 and 2) and besides private respondents Nos.3 to 17 have also been impleaded as respondents but except Respondent No,2 none else filed parawise comments/objections to the appeal. However, at the time of hearing, the counsel and representatives of Respondents Nos.1 and 2 participated. All it means that except these two respondents, the remaining respondents have either no interest adversely effected or they are negligent to take care of their interest and in either case they had done so at their own risk.
3. Perusal of the file indicates that in a similar situation, three appellants adversely affected by re- organization of the Investment Promotion Bureau merged into Board of Investment had filed their Appeals Nos.57, 58 and 59(R) of 1997 which were dismissed by judgment, dated 1-4-1997. The reasoning contained therein is not convincing. In an identical situation a subsequent Bench of this Tribunal also rendered a judgment, dated 18-5-1998 in Appeal Nos.876 and 877(R) of 1997 wherein the incumbents of the Surplus Pool allowed seniority viz-a-viz their counterparts already working in the department to which the appellants were subsequently transferred and absorbed on the basis of well-known judgment contained in PLD 1991 SC 514 rendered by Hon'ble Judge, Mr. Justice Shafiur Rehman - then adorning the Supreme Court of Pakistan, wherein a detailed history of the incumbents of the Surplus Pool as and when occurred has been given with adequate remedy sought for and in all such situations and all such adversely affected incumbents were given the desired remedies inclusive of seniority, pay, pension as well as TA/DA as and when necessitated.
Apart from the rules and the regulations and the aforesaid judgment, on compassionate grounds, it would appear a sort of cruel treatment if such like affectees, due to act of the A State and policy of the Government in which they have got no say whatsoever, are palced in a disadvantageous position without any fault on their part.
4. History of the Surplus Pool.----As per the aforesaid judgment of the Hon'ble Supreme Court of Pakistan it can be traced back to the budget year 1979-80 when due to austerity measure adopted pursuant to the directive of the President of Pakistan regarding reduction of Posts in various Governmental departments and divisions. As a result of this policy posts were reduced in certain departments and the second time, resulting in adoption certain measures necessitating reduction of staff in various departments was enforcement of Metric System of Weights and Measures to protect interest of Surplus Pool staff and in this respect the following measures were adopted:-- "(g) The absorption/appointment of such Surplus Pool persons who were holding regular posts shall not be treated ad hoc."
"(h) The previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post, if absorbed in an equivalent post and their pay shall be fixed under ,normal rules in consultation with Audit/FD."
' Besides, they were also allowed all facilities of TA/DA, joining time, leave and pension etc. It was also decided that, "the previous service of the surplus staff in question should also count towards seniority in the grade concerned, in office to which they had been transferred. However, doubtful cases relating to their seniority should be referred to the Establishment Division direct (Ministry of Finance OM No,2(13)-R.II/49, dated 13-7-1949). The third occasion in which such exercise was made when following the Constitution of 1962, re-organization of the Central Governments took place and in this respect detailed instructions are available at Sl.No,31 at page 267 of 0 & M E, Manual Vol. III and with regard to seniority the following provision was made in sub-clause (iii) of clause (3):-- "Their seniority in a grade viz-a-viz the Provincial Government servant in that grade shall be determined with reference to their respective dates of continuous appointment to that grade."
' Yet another occasion for such exercise arose in 1971 with regard to the employees coming over from East Pakistan (now Bangladesh) and of autonomous bodies who were on deputation to the Federal Government from 16-12-1971 and the question of the Federal Government employees recruited on Zonal/Regional basis in the department of Federal Government located in East Pakistan, the matter remained under active consideration of the Government for some time and ultimately it was decided that:- "Such employees may be allowed to count their services rendered in former East Pakistan towards seniority in equivalent grades held by them under the Federal Government (Sl.No,162 ESTACODE page 158, 1993 Edition, OM No,2/28/72RC(Estt), dated 16-4-1978)."
5. Pursuant to the above, it has become crystal clear that policy of the Government is coming consistently uniform wherein employees dislocated due to re-organization of Government departments, the Government did not neglect the employees so adversely affected and placed in the Surplus Pools or whenever their rights jeopardized or otherwise appeared clouded due to policy of the Government necessitated in the exigency of services and larger public interest such as down sizing etc. The Government readily adopted protective measure in respect of statutory rights of its employees and in suchlike Surplus Pools, rights of the civil servants cannot be construed to be adversely affected being Act of state and policy of the Government. The civil servants if rendered Surplus have got no right for absorption ipso facto unless he prove mala fide on part of the competent authority but in such-like matters mala fide is rarely proved firstly that senior officers/administrators ordinarily works impartially not only in interest of the State/Government but also citizens of the sacred land inclusive of civil servants.
6. The Hon'ble Supreme Court of Pakistan was pleased to accept appeal of Muhammad Yusuf Chauhan and another who originally belonged to the Government of Punjab. Mr. Muhammad Yusuf Chauhan, employed in the Education Department and confirmed as such. He received as direct appointment through the Public Service Commission in NPS-18 in the Department of Weights and Measures under the Ministry of Industries on 23-11-1973. He, after the abolition or transfer of functions of Weights and Measures Department to the Province, absorbed in the Ministry of Education on 1-4-1980 as Senior Research Officer in the same pay scale in which he was earlier employed. The Establishment Division on 7-6-1980 enunciated its policy of absorption with the following two questions arising out of which (as earlier referred at para.4 page-4):-- "(g) The absorption/appointment of such surplus persons who were holding regular posts before their being declared surplus, shall not be treated as ad hoc.
(h) The previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post, if absorbed against an equivalent post and their pay shall be fixed under normal rules in consultation with the Audit/Finance Division."
7. Persuant to the directions of Ministry of Education, in compliance with such policy decisons/directions, a seniority list was prepared vide which Mr. Yusuf Chauhan was allowed seniority from the date of his appointment in NPS-18 which happened to be 23-11-1973 as against this Mr. Sarfraz Khan Jadoon, Respondent No,1 having joined Ministry of Education as Technical Assistant on 31-8-1963 and having been selected by the Public Service Commission later on was promoted as Senior Research Officer in NPS-18 with effect from 16-4-1977, the latter feeling aggrieved took his grievance to the Service Tribunal and it appears that he got the requisite relief from the Tribunal and hence Mr. Yusuf Chauhan an affectee of the Surplus Pool alongwith another went to the Hon'ble Supreme Court of Pakistan' which was pleased to allow him the desired relief by accepting their appeals. Keeping in view the salient features of the aforesaid judgment of the Hon'ble Supreme Court of Pakistan, a Bench of this Tribunal had in identical situation accepted Appeals Nos.876 and 877(R) of 1997, dated 18-5-1998 who both were employees of Ministry of Women Development and simultaneously affectees of the Government policy regarding down- sizing of Ministries/Divisions who were wrongly accommodated in the seniority list in total disregard of their dates of regular appointments in the Ministry of Women Development. At the relevant time they were both absorbed in the Chief Ehtesab Commission's Secretariat, Islamabad.
8. It is further to observe that placing of civil servant in a Surplus Pool confronts him With various inconveniences such as financial, physical,--social and mental anxiety. It also adversely affects his kith and kins and simultaneously lowers his social position in society. It is true that a civil servant when opts for transfers from one post or cadre he would definitely be placed at the bottom of the new post, grade or cadres and he thereby legally loses his seniority but such-like option is rarely exercised. Nobody likes to have insecurity and foreign cadre is always insecure as compared to one's own cadre/department. Civil servants in the event of rendering surplus due to policy of the Government, they get no say whatsoever in it and as a matter of principle they shall not be put at a loss with respect to their statutory rights which were duly secured prior to their rendering surplus.
This view is natural, legal as well as meets the ends of justice which further lies not only in the best interest of all the civil servants but also the administration. A disturbed individual/society is not a good sign of peaceful atmosphere of a country. Such like adoption of policies bring hatred amongst its citizens as well as Government servants. It is said that "loves begets love" whereas hatred results in further friction which is detrimental for peace and tranquillity of a country specially when such frictions frequently occur.
9. Before parting with the file, it is further to observe that in our considered view, unless the existing rule of the Civil Servants (Seniority) Rules, 1993 is suitably amended the present state of affairs will still continue wherein the service regular or otherwise rendered by incumbents of the Surplus Pool is not protected and given benefits to them in light of the extant rule 4 (ibid), their seniority is reckoned from the date of their regular appointment to the new service, cadre or post which appear to be extremely callous, in no way justified by any law, rules or moral code.
10. An incumbent cannot be legally deprived of his right or for that matter continuous past service rendered in an earlier department/office which stood abolished or down-sized, without any fault of such incumbent and as such it is proposed that the following words shall be added in rule 4 after the last word "post" and before the words "provided that":-- "and that he shall count his earlier regular appointment, if any, to such service, cadre or post." ' and the readjusted rule 4 will be as under:- "(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 that he shall count his earlier regular appointment, if any, to such service, cadre or post."
' If the rule is amended as proposed, it would become an ideal one:--
(i) for the administration and the ends of justice;
(ii) will cause utmost convenience to the litigants (civil servants and Government departments);
(iii) will save thousands hours time of the Government, Courts of Law and the litigants; and
(iv) enormous economy of expenditure to the state exchequer.
11. Down-sizing of Government departments/institutions is a direct result of financial manipulation, favouritism and nepotism (politically motivated) has become order of the day which later on results in creation of Surplus Pools for no fault of the affectee civil servants.
12. Flexibility and convenience are the attributes of a law. Rigidity is not desireable and is always coupled with friction, differences and injustice.
13. In view of this legal situation, and the nature of utmost public importance involved therein, the said proposal may be examined and approved sheerly in the exigency of public service for nipping the recurring evil in the bud once for all.
14. Attentions of the worthy Secretary, Establishment Division is invited to the above proposition with a request that the same may be examined and the amendment proposed to be incorporated in the rule 4 (ibid) sheerly in exigency of public service for avoiding the state exchequer from unnecessary expenditure and further saving precious time of the Administration, Courts and the civil servants involved in litigation.
15. Pursuant to what has been stated above specially after detailed analysis and history of the various Surplus Pools, which emerged from time to time and when all the times the Government was kind and gracious to protect rights of the members of the Surplus Pools, we are constrained to accept this appeal and direct that the appellant may be given a suitable place in the seniority list from the date of his regular appointment in BPS-11 in his previous department(s).
16. There shall be no order as to costs. Parties to be informed accordingly.