' CH. MUHAMMAD ARIF, J.---The background in which this appeal, with leave of the Court as arisen, is that private-respodent herein namely Syed Masood Hussain Shah succeeded in his Appeal No,267(R) of 1995 before the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, through impugned judgment dated 16-10-1995 in relation to his claim of seniority in the service of the Pakistan Railways as Assistant Electrical Engineer in (8-17) in 1986, through selection by Federal Public Service Commission, vis a vis Appellant-Capt. Asif Ali. His grievance related to the issuance of a provisoinal seniority list in the year 1994 showing him at serial No,4 and appellant- Capt. Asif Ali at serial No,3, although the latter was also a selectee of Federal Public Service Commission but his such selection came about in the year 1988. His departmental representation dated 13-3-1995 against the Provisional Seniority remained pending and official respondents Nos.1 to 3 proceeded with issuing a final seniority list on 14-2-1995, also showing him junior to the appellant who was selected about two years after the appointment of respondent Syed Masood Hussain Shah as above.
2. In the Memo. Of Appeal before the Tribunal, the respondent had, after recounting the abovementioned facets of the service record of the appellant and himself, it was pleaded that the appellant was not entitled in law to count the period of his alleged ' compulsory Army Service' towards his seniority in terms of the requirements of section 9-A of the Compulsory Service in the Armed Forces Ordinance (No,IX of 1971), added through 'Compulsory Service in,the Armed Forces Ordinance (No,XXI of 1971), hereinafter referred to as Ordinance No,XXI of 1971, in that:
(i) Appellant-Capt. Asif Ali was not registered with the Employment Exchange as required by Essential Personnel (Registration) Ordinance, 1948;
(ii) He was not called up for enrollment by the Manpower Board under section 4 of the Compulsory Service (Armed Forces) Ordinance, 1971 but was selected by some other method;
(iii) His name was not a part of the Nominal Roll as required under rule 13 of the Compulsory Service -(Armed Forces) Rules, 1971; and
(iv) Even if section 9-A was attracted, he was not covered thereunder and he could not get seniority over Syed Masood Hussain Shah.
' It was also pleaded that both of them ".... Are governed by the Civil Servants Act, 1973, and Rules made thereunder. That Act being subsequent to Ordinance XXXI of 1971, the latter would prevail under which the appellant (Syed Masood Hussain Shah) has a right to be placed senior having been selected and appointed earlier than respondent No,5"-Capt. Asif Ali.
3. Prayer clause in Appeal No,267(R) of 1995 reads thus:-- "In view of the facts and circumstances stated above and legal position explained, it is respectfully submitted that this Hon'ble Tribunal may kindly accept this appeal and set aside the final seniority list and direct that the appellant be placed senior, to respondent No,5 in the seniority list. Any other relief which this Hon'ble Tribunal deems appropriate may also be granted in addition or in the alternative."
4. Paras. 6 to 16 of the impugned judgment of the Tribunal read thus:-- "6 The main issue relates to the interpretation of section 9-A of the Ordinance, 1971 (as amended by Act XXXVI of 1976, Ordinance No,IV of 1978 and Ordinance XLV of 1984). In the original Ordinance of 1971 there was no such clause granting seniority over the persons. However, In the amending Ordinance of 1977 section 9- A was inserted with the following words: "9-A. Notwithstanding anything contained in any other law for the time being in force, a medical practitioner, who, following, his release from service with the Armed Forces after having rendered satisfactory service under this Ordinance for a period of not less than two years, enters employment of the Federal Government or a Provincial Government shall be entitled to count towards his seniority in such employment the period of service rendered by him under this Ordinance and to is pay in such employment being fixed after giving him credit for the service so rendered."
'In the Ordinance of 1984 the words 'other essential personnel' were inserted after the words 'Practitioner' in the above quoted section 9-A.
"7 Thereafter, a Medical Practitioner or any other person, who satisfied the definition of 'essential personnel' as per section 2(c) of the Ordinance read with section 2(a) of the Essential Personnel (Registration) Ordinance, 1948, who has served the Armed Forces for more than two years becomes entitle to benefit of counting his service towards fixation of pay as well as fixation of seniority in any other service, however, this special favour will be available only to a person who has rendered compulsory service under the Ordinance, 1971. The word 'under this Ordinance' appearing in the later portion of section 9-A is of vital importance in this case.
8. The scheme of recruitment for compulsory service in the Armed Forces whereby one is entitled to special concessions can be gathered by reading the Ordinance as a whole. Section 3 provides that the essential persons falling within the age group 18 to 60 years are liable to be called up for service under this Ordinance. The call up notice has to be issued through the Manpower Board under section 4. The Manpower Board shall issue a call up notice after the receipt of a requisition from the Service Headquarters. Section 5 makes it obligatory on a person not whom the call up notice has been issued to report to the Authority within the fixed period and a ' proper procedure has been laid down for claiming exemption from compulsory service if so required. The persons called up for, compulsory service may be granted commission in the Armed Forces under section
7. Section 9 provides for the reinstatement of persons released after satisfactory completion service. Section 9-A provides for the counting of period of such compulsory service under this Ordinance for the purposes of fixation of pay and seniority.
"9. Thus a brief survey of the Ordinance shows that services rendered under this Ordinance are altogether different from the services rendered under any other type of commission. The basic differences being the mode of selection, obligation to serve and benefit of compensation for compulsory service. In the other types of commission in Army the selection is not based on requisition of service but initial step is based on the declaration of interest by the applicant of his desire to serve the Armed Forces voluntarily. The services rendered under this Ordinance is obligatory in nature and that is why compulsory benefits are granted which are not otherwise admissible.
"10 Under the general principles of service the persons joining a department earlier rank senior to those who join the same service later. This principle has been codified in the ESTACODE. The period of service in one institution is never counted for seniority in another institution because those who had joined the other institution earlier cannot be placed junior for no fault on their part. However, the service rendered for national cause under compulsion justifies the demand of sacrifice from others to reciprocate the sacrifice by their colleagues in an emergency.
"11 The learned counsel for the respondent No,5 referred to various documents where the service of respondent No,5 has been treated as compulsory service by the Military Authorities. We do not consider the word 'compulsory' mentioned in the said certificate to mean that the service was rendered under Compulsory Service Ordinance. It simply means that the officer has completed minimum of two years compulsory service which is necessary for getting release from Army.
"12 The learned counsel for the respondent No,5 also stated that the respondents have taken steps to find out whether the services rendered by the respondent. No,5 in the Armed Forces could be counted towards seniority. The matter was referred to the Establishment Division. They have confirmed vide letter, dated 2-12-1989 that his service is to be counted towards seniority and as such he was placed senior to the appellant. The opinion of the Establishment Division is as follows:- - 'The undersigned is directed to refer to the Ministry of Railways (Railway Board)'s U.M.
No,Admn.1/84-SRi1, dated the 26th September, 1989 on the above subject and to say that Mr. Asif Ali, Assistant Electrical Engineer (Prob), who served the Armed Forces from 19-6-1982 to 28-2-1985 under the Compulsory Service Ordinance, 1971 is entitled to the benefit of the period of that service towards seniority and pay on the present post in terms of section 9-A of the Ordinance (ibid.) as amended vide extraordinary Gazette of Pakistan dated 7-10-1984.
"13. The learned counsel for the appellant replied in this context that the release certificate issued to respondent No,5 and the release certificate issued to another officer namely Capt. Ansar Billah Khan are similar. However, the Establishment Division i,e, 'respondent No,1 has, on the one hand given opinion that the services of respondent No,5 be counted towards seniority whereas the same respondent No,1 has refused to count the service of Capt. Ansar Billah Khan towards seniority as per their letter dated 28-9-1993 quoted hereinbelow. Rather the Establishment Division had raised appropriate queries as required under section 4 of the Ordinance and the Rules made thereunder.
Since the conditions were not sufficiently fulfilled, therefore, the Establishment Division has refused to grant ante-dation in the seniority of Capt. Ansar Billah Khan vide their letter, dated 28th September, 1993 as follows:-- 'The undersigned is directed to refer to the Ministry of Railway (Railways Board) ' s . O. M . No . Admn.
1 /84-SR/1 , dated the 16th September, 1993 on the above subject and to say that the case has been examined in the Establishment Division on the basis of papers made available by the referring Ministry. Government of the Punjab's Letter No,DMTHP/EE/REG/92/P/1/EE/2317, dated 9-5-1993 reveals that the officer had not rendered compulsory service in the Pakistan Army. Therefore, he is not entitled to have benefits admissible under section 9-A of the Compulsory Service' (Armed Forces) Ordinance, 1971 as amended in 1978 and 1984.'
'The Establishment Division had in their letter :dated 30-1-1992 made the following queries based on which the above decision was communicated: "(i) Whether he was registered with the Employment Exchange as required by the Essential Personnel (Registration) Ordinance, 1948, if so a copy of the registration certificate issued to him may be supplied.
"(ii)Whether he was called up for enrollment by the Manpower Board under section 4 of the Compulsory Service (Armed Forces) Ordinance, 1971 or he was commissioned in the Army by some other method.
"(iii) Whether the name of Capt. Ansar Billah Khan appeared in the Nominal Roll as required under rule 13 of the Compulsory Service (Armed Forces) Rules, 1971."
"Therefore, it is clear that the respondent No,1 has taken two different views in similar situations. Mr. Zakaullah Jan, Section Officer, Establishment Division stated at the bar that prior to 1992 the Establishment Division used to consider the services rendered in the Armed Forces towards seniority in other services but in 1992 policy was amended and the officers were required to prove that their services were requisitioned-for compulsory service to entitle them to the ante-dation of seniority. Thus we have to hold that antedating the seniority of respondent No,5 over the appellant was not the correct interpretation of the Ordinance, other Statutes and the Rules.
"14 The contention of limitation raised by the respondent No,5 is based on the ground that the seniority was granted to the respondent No,5 in 1989 and it was not challenged at that time and now it is too late to agitate the matter. We do not agree because the simple granting of seniority to the officer does not create the cause of action unless the seniority list is properly circulated. Since the provisional seniority list was circulated in 1994 and final in 1995, therefore, the case was within time.
"15 The argument, that the provisions of the Armed Forces Ordinance, 1971 had the overriding effect and any action or proceedings thereunder cannot be challenged in any Court, cannot support the case of the respondents, because the service rendered by the respondent No,5 do not fall "under the Ordinance" and therefore, section 9-A and section 12 are not applicable.
"16 The result is that we accept this appeal and direct that the seniority list issued on i4-2-1995 be- amended and the appellant be placed senior to the respondent No,5. In the circumstances of the case there shall he no order as to costs. Parties be informed."
5. Paras. 2 to 4 of the leave granting order, dated 20-5-1996 make the following readings:--
2. Briefly stated the relevant facts in the background are that respondent No,5 after clearance by the Federal Public .Service Commission joined as Assistant Electrical Engineer (B-17) in 1986 and in the like manner the petitioner was appointed in 1988 but in the provisional seniority list the petitioner was shown senior to respondent No,5, against which representation was filed but the same position was repeated in the final seniority list dated 14-2-1995. Respondent No,5 feeling aggrieved approached the Federal Service Tribunal with appeal, which 'was allowed in the terms stated above.
"3 Capt. Asif Ali, petitioner before us and respondent No,5 before the Tribunal, took up the plea before the Tribunal that by order, dated 26-12-1989 he was granted seniority by the competent Authority on account of his army service as envisaged under section 9(A) of the Compulsory Service in the Armed Forces Ordinance, 1978, which order was not challenged by respondent No,5.
The plea taken by the petitioner was fully supported by the official respondents impleaded before the Tribunal. It is submitted that inifially section 9(A) of the Ordinance mentioned above covered only the medical practitioners but later by way of amendment made in 1984 its scope is extended to other categories including engineers.
"4 The learned counsel for the petitioners has submitted before us the interpretation of section 9(A) of the compulsory Service in the Armed Forces (Amendment) Ordinance after amendment is case of first impression as on this point there is no decision with regard to the interpretation of this provision rendered by this Court. To this extent the learned counsel for respondent No,5 present in the Court on caveat has also agreed. We, therefore, grant leave to examine the contention in order to render an authoritative decision on the question of interpretation of the provision mentioned above."
6. Hence this appeal.
7. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court appearing in support of this appeal has referred to pp 55, 56, 59, 67 to 68 and 139 respectively dealing with: (i) issuance of tentative seniority list, (ii) objections to tentative seniority list by his client on 8-3-1994, (iii) issuance of Final Seniority List on 1-1-1994. (iv) decision of Establishment Division about Capt. Ansar Billah Khan and
(v) 'Compulsory Army Service" of his client as also to a letter signed by Lt. Col (R), for Adjutant General (Najmi Taj) addressed to Appellant-Capt. Asif Ali, which makes the following reading: REGISTERED General Headquarters AG's Branch (PA Dte)
Rawalpindi Tel: GHQ: 33538 No,:431612133/PA-3(b)
10th June, 1996.
' To: PSS- 20929 Capt Asif Ali (Retd)
House No,195, Street No,32, Sector No,1-8/2, Islamabad ' Subject: Compulsory Service in the Corps of EME ' Your application, dated 26th May, 1996 refers.
"It is clarfied that you were conscripted in Pakistan Army in June, 1982 under . Compulsory Service Ordinance, 1971, under the arrangements of Manpower Board.", ' to contend that the Tribunal was in error in recalling the concession granted to his client by the competent authority i,e, allowing presumptive seniority by counting 2-1/2 years compulsory service in the Army towards the said goal. He relied upon Dr. Rafique Ahmad Kolachi v. Government of Sindh and 3 others (1995 PLC (C.S.) 454) to substantiate his client's cause and argued that the precedent-case does support the claim of his client. According to him, the decision made by the Establishment Division in declining to grant presumption seniority' to Capt. Ansar Billah Khan proceeded on the assertion that "...The case has been examined in the Establisinnent Division on the basis of papers made available by the referring Ministry. Government of the Punjab's Letter No,DMT/HP/EE/REG/92/P/1/EE/2317, dated 9-5-1993 reveals that the officer had not rendered compulsory service in the Pakistan Army. Therefore, he is not entitled to have benefits admissible under section 9-A of the Compulsory Service (Armed Forces) Ordinance, 1971 as amended in 1978 and 1984"., and argued that as the decision of the Establishment Division in favour of his client had been proceeded by appropriate sanction of the competent Authority, the Tribunal was in error in applying decision of Establishment Division in the case. Capt. Ansar Billah Khan to the present case in that "Government of Punjab's Letter No,DMT/HP/EE/REG/92/P/1/ EE/ 2317, dated 9-5-1993' was not at all applicable to the case of his client. The precise plea was that nobody had reported to the Establishment Division that appellant-Capt. Asif Ali had not rendered compulsory service in Pakistan Army.
8. Mr. Muhammad Nawaz Bhatti, learned Deputy Attorney-General for Pakistan, appearing on behalf of the Establishment Division, has supported the impugned judgment of the Tribunal with the assertion that the appellant was rightly held to be disentitled to the grant of presumptive seniority on account of his alleged 2-1/2 years 'Compulsory Army Service'.
9. Mr. Shah Abdur Rashid, learned Advocate Supreme Court appearing on behalf of respondent No,5 has specifically pressed into service the admitted position that the appellant and respondent No,5 had appeared before the Federal Public Service Commission for their appointment and as the appellant was not accepted and his client was, therefore, even the second limb of the 'accepted position' that appellant again appeared before the Federal Public Service Commission and was selected only in the year 1988, is of little help to the appellant in the matter of dislodging his client from the existing position of seniority in the discipline concerned. He also made a reference to the admitted position that: (i) Section 9-A was not a part of the Ordinance promulgated on 3-12-1971 and (ii) section 9-A was made applicable to 'doctors' through its addition on 28-1-1978 with effect from 3-12-1971 and contended that the case of persons similarly placed as appellant-Capt. Asif Ali cannot be advanced a wee bit for the purposes of presumptive seniority. According to him, in any case section 9-A would not apply to appellant Capt. Asif All as the period of his alleged 'Compulsory Army Service' does not exceed 1 year, months and 3 days from one calculation and in only 5 months and 27 days, according to another calculation. He concluded his arguments by asserting that as the appellant has succeeded in obtaining the communication dated 10-1-1996 (page 139 of the Paper Book refers) in response to his own application dated 26-5-1996 i,e, 5 days after the grant of leave to him in this cause, the Tribunal was quite right in non-suiting basis for the simple reason that no such material was available to the Tribunal then.
10. We have considered the arguments addressed at the Bar and have also gone through the available material with the help of the learned counsel for the private-parties as also the learned Law Officer.
11. A perusal of the written statements/objections on behalf of respondents (copies available at pp 73 to 74 and 75 to 82) clearly brings it to the fore that appellant-Capt.Asif Ali was granted seniority under section 9-A of Ordinance No,XXXI of 1971 "with the approval 'of the competent Authority". On behalf of the official-respondents it was specifically pleaded that "...Capt. Asif Ali was allowed ante date seniority with the approval of the competent Authority for the period of compulsory service rendered with the Pakistan Armed Forces in 'accordance with the provisions of Armed Forces Amendment Ordinance No,XXX1 of 1971. As such, Syed Masood Hussain Shah has no claim for seniority over Capt. Asif Ali and his departmental appeal has been filed." (Underlining is for emphasis). Similarly, both parties' claims relate to the applicability or otherwise of section 9-A of Ordinance No,XXXI of 1971. The Tribunal observed that the Establishment Division had taken different views in 'similar situation' regarding: (i) appellant-Capt. Asif Ali (favouring him) and (ii) Capt. Ansar Billah Khan not a party in this cause (against him). As regards the statement made by Mr. Zak.a Ullah Jan, Section Officer, Establishment Division to the effect that the Establishment Division used to consider the services rendered in the Armed Forces towards seniority in other services up to 1992 but thereafter such policy was amended and " ... The officers were required to prove that their services were re uisitioned for com ulsoryservice to entitle them, to the ante-dation of seniority...", and the Tribunal coming to the conclusion that th'e treatment meted out to "appellant (Capt. Asif Ali) was not the correct interpretation of the Ordinance, other Statutes and the Rules" we find that this observation has been made without noticing that these orders of the Establishing Division in the case of (i) appellant-Capt. Asif Ali and (ii) afore-referred Capt. Ansar Billah Khan had proceeded in accord with the respective situations/facts/circumstances thereof. We have looked in vain for any plea having been taken by respondent Syed Masood Hussain Shah in his appeal before Tribunal to the effect that anything will turn upon the refusal by the Establishment Division to meet out the same treatment to appellant-Capt. Asif Ali as was meted out to Capt. Ansar Billah Khan. The pleadings of respondent Syed Masood Hussain Khan before the Tribunal did make a reference to:
(i) letter of Establishment Division dated 30-1-1992; to appellant-Capt. Asif Ali's failure to comply with the requirements:
(a) regarding registration with the Employment Exchange:
(b) alleged lack of 'Call Up Notice' for enrollment by the Manpower Board; and
(c) non-appearance of his name in the Nominal Roll as required under Rule 13 of the Compulsory Service (Armed Forces) Rules, 1971. ' but, with the overall plea, that "...In consequence even if section 9-A was attracted, respondent No,5 was not covered by that section and he could not get seniority over the appellant by taking shelter behind section 9-A (ibid)."(underlining is for emphasis).
12. We further find that beyond making a reference to the plea taken on behalf of the Establishment Division by Zakaullah Jan, Section Officer that they used to consider the services rendered in the Armed Forces towards seniority in other services up to the year 1992 but, thereafter, the said policy was amended in that regard and the officers were required to prove that their such services were requisitioned for ante-dation of their seniority, no effort whatsoever was made by the Tribunal to obtain the details of such policy and/or amends thereto to be brought to bear upon the facts and circumstances of the present cause.
13. Moreover, the above observations are clearly out of proportion to the admitted position that persons similarly placed as appellant-Capt. Asif Ali can be granted the benefit of compulsory service in the Pakistan Army to count towards seniority within the four corners of section 9-A of the Ordinance No,XXXI 'of 1971. We have already held that the Tribunal had failed to obtain the details of any alleged policy before the year 1992 as also the alleged subsequently amendment/s therein by requiring the officials concerned to prove that their such services were requesitioned for making out a case for ante-dation of their seniority. The question whether sections 9-A and 12 (ibid) are applicable "in the case of appellant-Capt. Asif Ali" will, of necessity, fall for decision only after other preliminaries are sorted out by the Tribunal and that too after providing appropriate opportunity to all concerned to place on record whatever documentary evidence they want to, including the communication addressed to appellant-Capt. Asif Ali. By Lt. Cot. (R) on 10-6-1996.
14. Looked at in the above perspective, the case of the parties in relation to the entitlement or otherwise of appellant-Capt. Asif Ali to the benefit of his 'Compulsory Army Service' of 2-1/2 years towards seniority vis a vis respondent-Syed Masood Hussain Shah does require redoing by the Tribunal.
15. The above are the reasons for our short order of even date which reads thus:-- "For the reasons to be recorded, we accept the appeal, set aside the impugned order passed by the learned Federal Service Tribunal and remand the case to it to decide it afresh after allowing the parties to place on record the documentary evidence which had been brought on record in this Court and also hear the appeal anew and decide the case afresh in accordance with the law and the rules, governing the case. Costs to follow the event. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.