MIAN MUHAMMAD AJMAL, J.---This appeal, by leave of the Court, is directed against the judgment of the Federal Service Tribunal, Islamabad (hereinafter to be called the Tribunal), dated 24-7-1995, whereby Appeal No,207(R) of 1995 of the appellant was dismissed.
2. Succinctly stated facts of the case are that Ahmed Nawaz Shah appellant was appointed as L.D.C.(B-5) on 9-4-1977 in Directorate General, Intelligence and Investigation (Customs and Excise) and in due course he was promoted as Office Superintendent (B-13) on 5-8-1985. He was recommended for promotion as Deputy Superintendent (B-14) by the Departmental Promotion Committee (D.P.C.) in its meeting held on 19/20th May, 1990 against 5% quota reserved for Office Superintendents, Steno typists and Head Clerks on seniority-cum-fitness basis alongwith other persons working in the office of Directorate General and was placed at serial No,5 on the list of selectees. The first four were promoted as Deputy Superintendents against vacancies that became available in 1990, but the appellant was not promoted in view of CBR Telex No,24/11/91-ACE-II, dated 6-6-1991 whereby Selection Grade Stenotypists were brought over Office Superintendents. By another Telex No, 15/16/90- ACE-II dated 6-6-1991, Statistical Assistant/Assistant were also included for promotion to the post of Deputy Superintendent against 5% quota alongwith other ministerial staff. It may be mentioned here that under SRO 845(1)/74 dated 26-6-1974, the posts of Deputy Superintendents were to be filled in by promotion from amongst the Inspectors of the Department.
This Notification was amended on 15-3-1979 vide S.R.O. 249(1)/79, according to which, 95% of the posts of Deputy Superintendents were to be filled in by promotion of the Inspectors while the remaining 5% by promotion from amongst the Stenographers, Stenotypists, Office Superintendents and Head Clerks. For the sake of convenience relevant portion of the aforesaid S.R.O. Is reproduced:-- "CONDITIONS FOR PROMOTION
(3) Promotion to posts in column 1 below shall be made by selection from amongst persons who hold the posts specified in column 2 and possess the qualifications and experience prescribed in Column 3.
Name of the post Persons eligible Condition of eligibility 1 2 3 Deputy Superintendent of Central Excise and Land Customi. Inspectors of Cental Excise and Land Customs 95% ii. Stenographers Stenotypists Office Superintend dents and Head Clerks 5%i. At least five year continuous service in the grade of Inspector Stenographer Stenotypist and Head Clerk. ii. Incumbents of eligible junior posts will be promoted only when incumbents of the eligible senior posts are not available The above S.R.O. Further provided in Column 3(ii) that "incumbents of eligible junior posts will be promoted only when incumbents of the eligible senior posts are not available." The aforesaid Notification was modified vide S.R.O., 409(1)/86 dated 23-4-1986 whereby Stenographers were excluded from consideration for promotion as Deputy Superintendents, whereafter only Stenotypists, Office Superintendents and Head Clerks were eligible for promotion to the posts of Deputy Superintendents. Appellant's plea is that he had preferential right for promotion to the post of Deputy Superintendent as the post of Office Superintendent was in B-13 while rest of the persons eligible under this category were in lower grades. However, during pendency of the appellant's case for promotion in accordance with the terms of above said S.R.O., the Central Board of Revenue on 6-6-1991; issued the following telex:-- "The promotion cases of Stenotypists who are enjoying selection Grade in BPS-14, may be reconsidered in the DPC on the basis of their seniority i.e, date of appointment(.) If the Stenotypists are senior according to the date of joining the Office Superintendent who are in BPS-13 shall be treated as juniors(.)"
The above telex was followed by another telex, which is as under:-- "Establishment Division has allowed Statistical Assistants/Assistants for promotion against 5% quota alongwith other ministerial staff(.) Necessary amendments are being made and S.R.O. Is under print. Please consider Statistical Assistant/Assistants in the DPC alongwith other ministerial staff(.)"
It may be mentioned that no SRO to amend the Rules in the above terms in consultation with the Establishment Division has been issued. On 2-11-1992, a letter containing following guidelines for utilization of 5% promotion quota from ministerial staff was issued by the CBR:-- "(i) 5% of the total strength of Deputy Superintendents of Central Excise and Customs shall be filled by promotion from amongst the following cadres in the Directorate General of Inspection and Training and Directorate General of Intelligence and Investigation:-
(a) Office Superintendents (B-13)
(b) Stenotypists (B-12) ant.
Stenotypists, Selection Grade (B-14)
(c) Statistical Assistant (B-14
(d) Assistant (B-11)"
(ii) For equitable distribution of 5% quota in those four cadres, it is to be sub-divided in four parts in proportion to the total strength of the eligible officials in each cadre on all Pakistan basis;
(iii) If the promotions already made (upto the issue of those orders) to the post of Deputy Superintendent do not reflect allocation of 5% quota reserved for the four eligible cadres (combined) mentioned in sub-para (i) above, the deficiency should be brought forward and in the new promotions the balance (sic).
(iv) Promotion against the posts of 5% quota including the carry forward balance of posts should be filled from the eligible officials in the four cadres in accordance with the ratio as indicated in subpara (ii) above keeping in view the inter se seniority of officials in each cadres; (v)
The aforesaid letter was superseded by letter, dated 9-2-1993 in the following manner:-- "(i) 5% of the total strength of Deputy Superintendents of Central Excise and Customs shallbe filled by promotion from amongst the following cadres in the Collectorates of Central Excise and Customs, Directorate General of Inspection and Training and Directorate General of Inelligence and Investigation:-- (a)Office Superintendents (B-13)
(b)Stenotypists (B-12) and Stenotypists, Selection Grade (B-14)
(c) Statistical Assistants/Assistants (B-11)
(ii) For equitable distribution of 5% quota in these three cadres, it is to be sub-divided in three parts in proportion to the total strength of the eligible officials in each cadre on all Pakistan basis;
(iii) If the promotions already made (upto the issue of these orders) to the post of Deputy Superintendent do not reflect allocation of 5% quota reserved for the three eligible cadres (combined) mentioned in sub-pars 1 above, the deficiency should be brought forward and in the new promotions the balance should be restored;
(iv) Promotions against the posts of 5% quota including the carry forward balance of posts, should be filled from the eligible officials in the cadres in accordance with the ratio as indicated in sub- para (ii) above keeping in view the inter se seniority of the officials in each cadre; (v)
On 19-7-1993 another letter was issued by the Central Board of Revenue stating that the out sanctioned strength of 597 posts of Deputy Superintendents, 30 posts would fall to the share of ministerial staff for promotion according to 5% quota and break up thereof was given as under:-- Stenotypists: 16 Office Superintendents 12 Assistants/Statistical Assistants 2 The appellant challenged the aforesaid telex/letters to be without jurisdiction before the Tribunal through Appeal No,264 (R)/93 which was dismissed in limine with the observation that the appellant would get promotion on his turn as and when considered by the competent authority and that for the present he had no cause to agitate.
3. Respondents Nos.5 to 11 who were working as Stenotypists, Statistical Assistants and Assistants and were junior to the appellant, were promoted on 21-3-1994. The appellant after exhausting the departmental remedy, challenged their promotion before the Tribunal by filing Appeal No,367(R) of 1994. One Ehsanullah also filed Appeal No,355(R) of 1994. These appeals were heard by the Tribunal and were disposed of as under on 16-10-1994: "When these two appeals were taken up for regular hearing, the learned Standing counsel for the.
Government, alongwith Mr. Zulfiqar Ahmed, Second Secretary, CBR, states at the bar that the cases of the appellants are under consideration and will be finalised within a fortnight. On the other hand, according to the appellants their prayers is that the respondents department be directed to consider the appellants for promotion according to the rules and quota. In view of the statements of the learned Standing counsel for Government, and by consent of the learned counsel for the appellants, one month's time is allowed to the respondent department to finalise the matter and pass appropriate orders. In case the appellants are not satisfied with redressal of their grievance, they will be at liberty to come to the Tribunal in accordance with law by filing fresh appeals. With these observations both the appeals stand disposed of."
The appellant was promoted on 29-12-1994 as Deputy Superintendent. He, however, claimed that he was entitled to promotion from the date he became due for promotion, in accordance with the recommendations of DPC and the promotion rules as notified vide S.R.O., No, 249(I) of 1979, dated 15-3-1979. He filed departmental appeal claiming promotion since 1991 in accordance with the aforesaid S.R.O. And challenged the validity of subsequent telex and letters issued by the C.B.R. As the departmental appeals filed by him was not responded within the statutory period, therefore, he filed Appeal No,207(R) of 1995 before the Federal Service Tribunal, which has been dismissed vide its judgment dated 24-7-1995. This judgment was impugned by the appellant through CPSLA No,545 of 1995, wherein leave was granted to consider whether the appellant was entitled to ante dated promotion from the date he was recommended and became eligible for the appointment as Deputy Superintendent in the light of S.R.O. No,249(I) of 1979 dated 15-3-1979 and promotion of other persons in pursuance of subsequent instructions issued by the CBR were wholly without jurisdiction as the same could not amend SRO 249(1)/79 dated 15-3-1979.
4. Learned counsel for the appellant submitted that the appellant after promotion from the post of Head Clerk (B-10) was serving as Office Superintendent (B-13) since 5-8-1985. A combined seniority list of ministerial staff eligible for promotion against 5% quota was prepared in 1990 which was considered by DPC, who approved several Office Superintendents for promotion including the appellant. In 1990 four Office Superintendents were promoted as Deputy Superintendents and the appellant's "case for promotion was pending when two telexes dated 6-6-1991 were issued by the CBR whereby Stenotypists enjoying selection grade were made senior to the office Superintendents and Statistical Assistants/Assistants, were included for promotion against 5% quota alongwith other ministerial staff. It may be mentioned here that no Notification in terms of the telexes/letters has been issued in consultation with the Establishment Division as required under Rules 11(d)(e) and (i) of the Rules of Business, 1973. Learned counsel contended that under clauses (d), (e) and (i) of Rule 11 of the Rules of Business, 1973, and Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 the CBR could not change the terms and conditions of service of the Federal Civil Servants applicable to a post nor could it change the statutory rights and the privileges of the Federal Government Servants nor the Rules for recruitment to any post or service could be amended, hence the telexes and letters dated 6-6-1991, 22-11.1992, 9-2-1993 and 19-7- 1993 were illegally issued and having no lawful authority have no legal effect in absence of the consultation of the Establishment Division. He submitted that the said telexes and letters were not only without jurisdiction under the Rules of Business and Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 but were also defective as they had been given retrospective effect. He urged that admittedly the appellant alongwith other persons was recommended for promotion by the Promotion Committee, out of which 4 were promoted but on his turn of promotion the terms and conditions of promotion as contained in SRO 249(1)/79 were unlawfully changed by the aforesaid talexes and letters which were without lawful authority, as such the appellant on the availability of the first vacancy was entitled to be promoted as Deputy Superintendent. He submitted that 20% posts of Stenotypists in Ministeries/Divisions and Departments of the Federal Government were given Selection Grade (B-14) w.e.f, 1-4-1988 but inter se seniority of the staff was to be determined on the basis of appointment to a post in cadre and not on the basis of grade which was granted later on. The appellant being senior and recommended for promotion earlier was, therefore, entitled to promotion to the post of Deputy Superintendent when the same became available.
5. On the other hand, learned counsel for the respondents Nos.1 to 4 submitted that in the past Inspector of Central Excise and Land Customs used to be promoted as Deputy Superintendents while other cadres were deprived from promotion. In this view of the matter, vide SRO 249(1) of 1979 dated 15-3-1979, Rules 2 and 3 of the Promotion Rules for the post of Deputy Superintendents were amended by allocating 5% quota to the Stenographers, Stenotypists, Office Superintendents and Head Clerks for promotion to the post of Deputy Superintendent. He further submitted that the word 'Stenographerswa s deleted from the aforesaid SRO vide SRO No,409(1) of 1986, dated 23-4-1986, thereafter telexes and letters containing guidelines were issued by the CBR which did not amount to the amendment of the Rules, therefore, no consultation of Establishment Division was required.
He submitted that grant of Selection Grade (B-14) to 20% Stenotypists was promotion, therefore, they became senior to other staff placed in lower grades.
6. After hearing the learned counsel for the parties and perusal of the record, we find force in the arguments of the learned counsel for the appellant. It may be noted that the SRO 845(1)/74 dated 26-6-1974, SRO 249(1)/79 dated 15-3-1979 SRO 409(1)/86 dated 23-4-1986 contained an expression that the same have been issued with the concurrence/approval of the Establishment Division but in so far the questioned documents are concerned, there is no mention of any such expression which indicates that they have been issued without consulting the Establishment Division. Learned counsel appearing on behalf of respondents Nos.1 to 4 could not produce any documents to show that the questioned letters/telexes were issued with the prior approval or consultation of the Establishment Division. Rule 11 of the Rules of Business provides that no Division shall without previous consultation with the Establishment Division issue or authorise to issue any order other than the orders in pursuance of any general or special delegation made by the Establishment Division. Since the mandatory provision of consultation with the Establishment Division has not been complied with for the issuance of telexes/letters whereby amendment in the Rules has been made, therefore, we hold the said documents, having been issued without consultation of the Establishment Division, to be of no legal effect. Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 also envisages similar concurrence and in absence of such consultation with the Establishment Division no amendment in the Rules could be made. The questioned documents are also defective as they have been given retrospective effect whereas no retrospective effect could be given to such documents. SRO No,249(I)/79 dated 15-3-1979 as amended by SRO 409(1)86 dated 23-4-1986 provides that against 5% quota for ministerial staff, Stenotypists, Office Superintendents and Head Clerks with 5 years continuous service, were eligible for promotion and it further states that the incumbents of eligible junior posts be promoted only when the incumbents of eligible senior posts were not available but this provision was not adhered to when incumbents of junior posts were promoted in preference to the incumbents of the senior posts. Although 20% posts of Stenotypists were granted Selection Grade in 1988 but the determining factor for inter se D seniority of the ministerial staff was their regular appointment to a respective post. The word 'post and gradecame under consideration before this Court in case of Prof. Dr.Badshah Gul and others v. Prof. Dr. Shafiq Ahmad and others (1995 SCM R 1859), wherein it was observed as under:-- "It clearly laid down the principle for determining the inter se seniority 'of the holders of posts which was on the basis of their continuous regular appointment to the respective posts. The holding of post and continuous regular appointment to that post was the determining factor for inter se seniority. Such inter se seniority was between the holders of posts but there is no mention of grades nor does it say that the grade granted to a particular officer shall be taken into consideration for determining inter se. Seniority. The word "post and grade" convey definite meaning and concept which are attached to them. Post and grade are two different terms relating to service of an officer.
'Postmeans place and position in service held by an employee. The word "grade" has been defined in Civil Servants (Change of Nomenclature and Abolition of Classes) Rules, 1973 in the following words::- "Grade means a National Scale of Pay in which a post or group of posts is placed".
"After the change of nomenclature and abolition of classes the posts were placed in grades by which the pay scale was determined. It is, therefore, clear that post and grade are two different terms applicable to the civil servants. In a Finance Division's O.M. No,1(1)-I&P/83, dated 18-8-1983, it was laid down that "basic scale shall not be regarded as grade and shall not be referred to as grades in official communication and that the officials shall henceforth be appointed/promoted to post and not in grade." Therefore, from the financial point of view as well it was the post and not the grade on which appointments and promotions were made. The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 refer to appointment to a post and not to grade. Post may fall into different grades or National scale of pay. The holder of a post is that person who occupies a particular post in service at a particular time and regular appointment to a post is other than an appointment on ad hoc basis and on contract or temporary basis for a specified period. In the background of this discussion reverting back to merger order quoted above, it is clear that the inter se seniority of the holder of posts was to be determined on the basis of their continuous regular appointment to the respective posts."
"Nothing has been brought on record to show that by granting grade to them they were made responsible for higher duties which may entitle them to claim to have a promotion in post as well.
We are, therefore, of the view that persons holding civil post may be granted higher grade irrespective of the change of the post and in such a situation the inter se seniority shall be determined on the basis of the post held by them as provided by the rules. In the present case Grade-21 was granted to respondent No,.1 when he was in a different cadre of service. It was after merger that the inter se seniority was to be determined amongst the Professors. Therefore, it is the post which is the determining factor for deciding the inter se seniority between the civil servants holding the same post. The rules do provide that seniority list amongst the officers of a particular grade or post may also be prepared. But where inter se seniority is to be taken on the basis of the post higher grade for financial purposes will not affect the person holding seniority in post."....
The post of Office Superintendent (B-13) was senior to that of the Stenotypist (B-12) and Head Clerk (B-10), therefore, the appellant had a prior right to be promoted first in preference to the incumbents holding junior posts.
7. In view of the above, we allow this appeal, set aside the impugned order of the Service Tribunal, declare the telex and letters dated 6-6-1991, 22-11-1992, 9-2-1993 and 19-7-1993 amending the rules for promotion to be without any lawful authority and of no legal effect and anything done on the basis thereof would also be without lawful authority and further declare that the appellant being senior and recommended earlier be promoted against the first acancy which became available after promotion of first four recommendees. No orders as to costs.