1980 PLC(CS) 670

AMIR AHMAD Versus SECRETARY, MINISTRY OF FINANCE ETC

Citation1980 PLC(CS) 670

CourtFederal Service Tribunal

Case No.Appeal No. 76(R) of 1974

Date1977-11-05

ResultOrders accordingly

ORDER

1. On the basis of a competitive examination, the appellant was selected for appointment as S. A. S. apprentice in the Pakistan Audit Department on the terms and conditions specified in the Directorate of Commercial Audit Letter No. 1999/Admn./1‑196/60, dated 24‑5‑1961. The period fixed for apprenticeship was 3 years but was to end before the expiry of 3 years, as soon as the apprentice passed the S. A. S. Examination and was appointed to the S. A. S. cadre.

2. Item (7) of the terms and conditions of appointment as set out in the aforesaid letter reads :‑

3. "On passing both the parts of S. A. S. Examination, you will be allocated finally to an office of the Pakistan Audit Department. For the purpose of seniority, you will be placed below all the S. A. S. qualified men available in that office on the date of your passing the examination.

4. The seniority thus determined (under para. 143 of the Manual of Standing Orders, as amended from time to time) will be without prejudice to the seniority of the Departmental men. Any departmental person who passes the S. A. S. Examination held after the examination passed by you will be Junior to you except in a case. where by virtue of para. 143 of the Comptroller and Auditor General's Manual of Standing Orders, he became senior to any other Departmental man already senior to you in the seniority list. The inter se seniority of S. A. S. Apprentices, who qualify in the same batch will be determined in the order of total marks obtained by him in the S. A. S. Examination (Part I and Part II both)."

5. Having been finally allocated to the Commercial Audit Department, under para. 1 (7) of the letter of appointment the seniority as S: A. S ‑Accountant in the department, was to be fixed on the basis of the "date of passing the S. A. S. Examination" which expression has not been defined in the letter of appointment.

6. According to the petitioner, the meaning assigned to this phrase in the Comptroller and Auditor‑General's Letter No. 1270/NGE‑177‑58, dated 18‑10‑1960 would apply, implying thereby that the S. A. S. qualified service starts from the date following the last day of the S. A. S. Examination passed by each person.

7. As a result, the date of passing the S. A. S. Examination is 19‑1‑1963 the last day of the examination being 18‑1‑1963.

8. The petitioner was informed by respondent No. 3 vide his Memo. dated 25‑3‑1972 that the Auditor‑General had decided that the appellant was entitled to seniority from the date of declaration of the result viz. 4‑4‑1963 of the S. A. S. Examination. While defending the civil suit, the Director of Commercial Audit took a similar position and contended that the appellant, not having passed the S. A. S. Examination as a member of the Clerical Cadre, was ineligible for the benefit of seniority claimed.

9. It is contended that ;

(a) The Audit General's letter dated 18‑10‑1960 does not distinguish between candidates whether S. A. S. Apprentice or Departmental Clerk for the purpose of Departmental examination, irrespective of whether a person already holds charge of the post of S. A. S. Accountant or not. Such distinction holds good for the purpose of drawal of pay as S. A. S. Accountant from a. retrospective date.

(b) All the S. A. S. Accountants in various Account Offices have been accorded seniority from the last day of the examination and it would be a case of invidious distinction, if the appellant is singled out. In fact, the Director has accepted the seniority from 19‑1‑1963 in various seniority lists.

(c) Since the increase in pay was allowed from the date following the last date of the examination, it is incomprehensible that the Department assigns two different meanings to the phrase `date of passing the Examination.

(d) The Accountants, whose services were borrowed from other offices and were absorbed with effect from 1‑5‑1964 became the Accountants of the Commercial Audit Department from the date of assignment, when they ceased to draw the deputation pay.

(e) Twelve permanent posts were available from 29‑10‑1961. The appellant being available from 19‑1‑1963, he was entitled to be confirmed against an available permanent post."

10. It is further contended that the fact that the seniority of the respon dents (4‑20) was fixed in disregard of the Establishment Division's letter dated 31‑3‑1951, is clear from the Ministry of Finance Memo. No. F. 4(97)/67 Admn. III/513, dated 12‑2‑1969, which was issued to regularize the irregularity committed by the Department. The aforesaid letter directs that future cases are to be dealt with according to the instructions contained in the Establishment Division letter dated 31‑3‑1951.

11. It has therefore been prayed that the date of passing S. A S. Examina tion and consequently the date from which the seniority would count, be accepted as front 19‑1‑1963 and that the appellant be declared senior to respondents 4‑20 after confirmation with effect from 19‑1‑1963.

12. On behalf of the respondents, it is argued that the seniority of the regular S. A. S. Accountants was determined under the provisions of para. 143 of the Auditor General's Manual of Standing Orders and that of the S. A. S. qualified Apprentices under the orders of the Auditor‑General, issued from time to time vide Note 2 below para. 143 of the Manual. Accordingly, respondent No. 2 fixed the seniority of the appellant (vide his Memo. dated 3‑9‑1971) from the date of passing the examination via. 4‑4‑1963. As a result, respondents 4‑20, who joined the Commercial Audit Depart ment before the aforesaid date would rank senior to the appellant. It is further contended that the respondents (4‑20) have been treated as having been" transferred in public interest to the Commercial Audit Department and have as such been allowed the benefit of previous continuous service in the S. A. S. cadre in accordance with para. b (b) of the Establishment Division Memorandum dated 31‑3‑1951 and that all the S. A. S. Accountants confirmed with effect from 1‑5‑1964, were available in the Department on the date of confirmation. Although the Department was placed on permanent footing with effect from 79‑10‑1961, confirmations were effected from 1‑5‑1964 as a `policy measure' to safeguard the interests of other S. A. S. Accountants, `who are likely to be transferred to the newly established Department in public interest.

13. The learned counsel for respondents (1‑‑3) contends that confirmation from a particular date cannot be claimed as of right and that the appellant had no vested right for confirmation against the post he was holding.

14. Having heard the arguments in detail, we consider that the following points arise for determination :‑

15. "(a) The date of passing the S. A. S. Examination in the case of an apprentice/appellant.

(b) Application of Establishment Division's Memo. dated 31‑3‑1951, in the case of respondents 4‑20.

(d) Effect of confirmation with effect from 1‑5‑1964 on the appellant's seniority.

(e) Effect of options exercised."

16. So far as (a) is concerned the period of apprenticeship was fixed at 3 years unless the apprentice passed both the parts of the Examination earlier and was appointed to the S. A. S. cadre. Thus the earliest date on which an apprentice could be inducted into the cadre and allocated to an office of the Pakistan Audit Department, is the date on which he is declared to have qualified the S. A. S. Examination or when the Examination result is announced, and the candidate is declared have qualified. For the purpose of examination of the date the final paper is taken, he is still a candidate and continues as such until the result is declared. Pushing the date back to the last date of the examination or the date following the last date, would imply that the apprentice not only ceased to be an apprentice retrospectively but that he became a member of the S. A. S. cadre, having been appointed and allocated to an office of the Pakistan Audit Department. Conversely if an apprentice was declared to have failed, he would be deemed to have failed retrospectively before even the assessment of the examination papers. This position with its attendant implication, is untenable.

17. Although in the matter of pay fixation, the benefit of increase is allowed to S. A. S. apprentices as in the case of Departmental promotees yet the method of determination of seniority of `promotee S. A. S. Accountants vis‑a‑vis the `apprentices' is different. The fact that increase in pay is allowed, after an apprentice has passed Part I, examination, would not make him a member of the clerical cadre and thereby eligible for other benefits.

18. The date of passing the S. A. S. Examination is the one on which the apprentice‑candidate is declared to have passed the examination. The allocation to an office of the Pakistan Audit Department as S. A. S. Accountant follows the declaration of the result and could not be made earlier.

19. As regards (b) and (c), it is evident that the respondents (4‑11 & 13‑20) came on deputation to the Commercial Audit Department and drew the daputation pay. until 30‑4‑1964 (No. 12 joined on 1‑5‑1964), in the instant case, it was open to the persons concerned to accept or refuse the offer of appointment. It was not a case of compulsory transfer as a result of conscription or along with the post and work but one of option. As against this position the case of the appellant was one of allocation but not of option. This is confirmed by the Department, vide Auditor General's Letter No. 1488 NGE. 1/37‑62 dated 16‑12‑1964. Consequently, the seniority of respondents concerned in the new office would count from the date of termination of deputation and actual assignment.

20. The Finance Ministry's Letter No. F. 4(97)‑Admn. III/513 dated 12.2‑1969 referred to in item (c), clarifies the position in this behalf and is is the nature of admission of irregularity committed. Surely, the rights of the appellant could not be affected adversely thereby.

21. Item (d). ‑Although confirmation in each case has been made from 1‑5‑1964, it is not be determining factor for the purpose of seniority. There is no rule of Recruitment/Appointment to indicate the seniority would be determined on the basis of confirmation. Even if that be so, all were confirmed on and from the same date the seniority in which case would be determined on the basis of some other factors. Confirmation in fact follows appointment. In the present case the appellant was `appointed/ allocated on the date of the declaration of the result via. 4‑4‑1963. In the case of the respondents confirmation would follow the assigned to/absorption in the cadre.

22. Messrs Hafeezallah Farooqi and A. B. Siddiqui (respondents) 13 and 11 respectively) are stated to have joined on 13‑3‑1963 and 22‑3‑1964, i.e. prior to 4‑4‑1963 in which case, in accordance with item (7) of the Director Commercial Audit Letter No. 1999/Admnll‑196/60, dated 24‑5‑1961 they would rank senior to the appellant, as they were available in that office on the date of his passing the S. A. S. Examination. The seniority against these two respondents is claimed on the assumption that the petitioner qualified on 19‑1‑1963 and these respondents had joined the Department later. Respondent No. 12 is stated to have joined on 1‑5‑1964.

23. The upshot of the above discussion is that the appellant would be deemed to be S. A. S. qualified on the date of the declaration of the result vis 4‑4‑63, allocated to the Commercial Audit Department and appointed to the S. A. S. cadre from the same date.

24. As against Messrs Hafeezullah Farooqi and A. B. Siddiqi, his seniority would be determined in terms of item (7) of the letter dated 24‑5‑1961.

25. As far as respondents 4‑10, and 14‑20 are concerned, they would rank junior to the appellant, having continued in Department until 30‑4‑1964. Respondent No. 12 joined on 1‑5‑1964. He would rank junior to the appellant.

26. Orders accordingly.