MUHAMMAD SALEEM II Versus SECRETARY, ESTABLISHMENT DIVISION

A. O. RAZIUR RAHMAN (MEMBER). ‑The appellant, who was directly recruited as Stenotypist in the Establishment Division, with effect from 21‑5‑1976, was aggrieved by the fact that, although he was senior to Respondent No. 2, who was appointed as Stenotypist in the same Division on 1‑10‑1976, the latter was being considered for promotion as Stenographer in contravention of the rules on the subject and to the detriment of the interests of the appellant and 13 other seniors of the said respondent. Therefore, on 14‑11‑1980, he made a representation to the Establishment Secretary, praying that Respondent No. 2, who was junior to him and 13 others, may not be promoted to the Grade of Stenographer, by superse ding his 14 seniors. In response to this representation, he was informed by Memorandum No. 6/50/78‑Admn II, dated 28th December, 1980, that his petition had been thoroughly examined by the competent authority and rejected. Against this order, he came up in appeal before this Tribunal on 21‑1‑1981. The appeal was heard on 16‑11‑1982 and is being disposed of by this order.

2. The contention of the appellant is that, on 1‑10‑1976, Respondent No. 2 was transferred from the Prime Minister's Secretariat (Public) and taken as a direct recruit in the Establishment Division, with effect from the same date, and that this ~ fact was recognised in the seniority lists of Stenotypists issued by the Establishment Division on 6‑10‑1979 and 19‑3‑1980, respectively, in both of which he was shown as having been appointed as Stenotypist on the said date. As against this, the date of appointment of the appellant was 21‑5‑1976. Thus, the appellant claims, he was senior to Respondent No. 2. But, on 4‑11‑1980, he came to know that the Departmental Promotion Committee had been convened, after illegally granting senority to Respondent No. 2 for the previous service rendered by him in the Prime Minister's Secretariat (Public) to consider his case for promotion as Stenographer. Since; according to the appellant, such promotion was against the existing rules, the appellant and others represented against the same, but their representations were rejected by the Establishment Division, under their Memorandum dated 28‑12‑1980, referred to earlier.

3. On hearing the parties in detail and. perusing the documents produced by them, including those pertaining to the orders passed at different stages; on the question of grant of seniority to respondent No. 2; with retrospective effect from the date of his appointment in the Prime Minister's Secretariat (Public), we have gathered the following facts and circumstances, which are relevant to the disposal of this appeal: By a Memorandum dated 1‑10‑1976; the. Prime Minister's Secretariat (Public) placed the services of Respondent No. 2 at the disposal of the Establishment Division. In the same Memorandum, it was stated that the official would sever all connections with the said Secretariat immediately. Some time after his appointment in the Establishment Division, the said respondent applied for being granted seniority with effect from 17‑11‑1972, the date on which he was appointed as Stenotypist in the Prime Minister's Secretariat. This was rejected by order of the competent authority, Joint Secretary, Establishment Division, on 23‑4‑1977, and the official informed by a Memorandum, dated 7‑5‑1977. After this, he made another representation, which also was rejected on the file by the Joint Secretary on 3‑7‑1977 and the official informed on 7‑7‑1977. Prior to this, the official had made a repre sentation to the Prime Minister's‑ Secretariat (Public), through the Establish ment Division, praying for confirming that his transfer to the Establishment Division had been made in the public interest. Before the representation could be forwarded by the Establishment Division, the Prime Minister's Secretarial (Public), on the basis of the advance copy of the application sent to them, intimated on 14‑6‑1977 that the transfer of the official to the Establishment Division had been made in the public interest. On the basis of this communication, and on a fresh application made by the official on 4‑8‑1977, the Establishment Division re‑examined the case and the competent authority, the Joint Secretary, changed his earlier decision and allowed the seniority claimed, with effect from 17-11‑1972, on the ground that the transfer had been made in the public interest. , This decision was conveyed to the official under a Memorandum dated 10th October, 1977. However, a provisional seniority list of the Stenotypists of the Establish ment Division was circulated on 6‑10‑1979, in which the date of appoint ment of respondent No. 2 was shown as 1‑10‑1976, the date on which he was appointed in the Establishment Division. In the same list, the date of appointment of the appellant in the grade of Stenotypist was shown as 21‑5‑1976, and he was placed at Seriall1, whereas respondent No. 2 was placed at Serial 15. This was followed by a revised seniority list, as on 4th March, 1980, which was circulated on 19‑3‑1980. In this seniority list also, Respondent No. 2's date of appointment was shown as 1‑10‑1976. Against this placement, Respondent No. 2 made a representation on 20‑3‑1980, in which he pointed out that he had been transferred from the Prime Minister's Secretariat (Public) in the public interest and his seniority with effect from 17‑11‑1972. had already been allowed to him by the Establishment Division under its Memorandum dated 10‑1.0‑1977, already referred to earlier. He therefore,, prayed that his seniority,‑as already conceded, be restored hand the seniority list corrected accordingly, on 20‑5‑1980, this was again rejected by order of the,., competent authority, namely Joint Secretary, Establishment Division. Respondent No. 2; thereupon, submitted a further representation on ‑3 i‑5-1980. In response to this, on 5‑6‑1980, he was asked to substantiate his claim, in reply to which the said respondent referred to the Prime Minister's Secretariat (Public) Memorandum of 14‑6-1977, in which it had been clarified that the transfer of the official to the Establishment Division had been made in the public interest. Thereafter, having considered the matter from various angles, the Establishment Division decided to request the C.M.L.A.'s Secretariat to take back the official in that Secretariat, as his retention had created several‑administrative problems for the Division. The request was, conveyed to the `C.M.L.A.'s Secretariat on 3‑7‑1980. On I2‑7‑1980, the C.M.L.A.'s Secretariat replied informing the Establishment Division that "consequent upon his transfer to the Establishment Division, Malik Azizur Rahman, Stenotypist severed all connection's with this Secretariat being a temporary hand, and as such it is regretted that it is not possible to take him back". No development appears to have taken place for some time after this, but, as alleged by the appellant, on 4‑11‑1980, he "came to know that the Departmental Promotion Committee for the promotion of Respondent No. 2, had been convened by the Establishment Division by illegally granting him seniority for his previous service which he rendered in his parent office viz. the Prime Minister's Secretariat (Public)." The appellant, and some others affected, represented against the move, but the representations were rejected under Memorandum No. 6/50/78‑Admn. II, dated 20‑8‑1980. Thereafter, the meeting of the Departmental Promotion Committee was held on 15‑1‑1981 and orders promoting Respondent No. 2, to the post of Stenographer, were issued on the same date, vide office order No. 9/2/80‑Admn. II. This was followed on 21‑1‑1981, by the appeal under disposal.

4. From the above recital of facts, it is seen that Respondent No. 2, who was formerly an employee of the Prime Minister's Secretariat (Public), was for some reason or the other relieved of his appointment in that Secretariat and absorbed in the Establishment Division. The expression used in the Prime Minister's Secretariat Memorandum on the subject, that the services of the official were placed at the disposal of the Establishment Division was misleading and factually incorrect, besides being contrary to the second part of the same Memo. in which it was clearly stated that he would sever all connections with that Secretariat. Moreover, by its communication, dated IZ‑7‑1980, the same Secretariat (renamed C.M.L A.'s Secretariat) categorically stated that the said official had severed all connections with that Secretariat, being a temporary hand and it was not possible to take him back. It was, therefore, clear that, at the time when respondent No. 2 was appointed as Stenotypist in the Establishment. Division did not hold any lien in the Prime Minister's Secretariat. The office order of the Establishment Division, dated 17‑10‑1976, appointing him as, a Stenotypist, clearly stated that his appointment was temporary and till further orders. The word transfer had, however, been used, but this was gone only to indicate that he was not a fresh recruit to Government service but had formerly been working in the Prime Minister's, Secretariat. It was explained by the Departmental Representative that it was necessary to do so in order to avoid the unnecessary procedure of police verification and medical examination which has to be gone through in the case of fresh appointments. This being the position, it is obvious that the appoint men of respondent No. 2 in the Establishment Division was not in continuation of his previous service, but a new appointment altogether, in which seniority could be claimed only from the date of actual joining.

5. The claim of respondent No. 2, for being allowed to count his seniority with effect from 17‑1‑1‑1972, the date of his appointment in the Prime Minister.'s Secretariat, is also not tenable under the relevant rules on the subject. The Government of Pakistan, Cabinet Secretariat (Establish ment Division, Office Memorandum No. 6/15/48‑ME, dated 31‑3‑1951, lays down instructions to regulate cases of transfer from one office to another. In paragraph 6 (b) of this Memorandum it has been laid down that "when a person is compulsorily transferred to another office as a result of conscription, alongwith the post and his work he should be allowed to count his previous continuous service in the grade towards seniority in that grade in'‑the new office." Respondent No. 2 has relied on this provision for claiming his back dated seniority. In this connection, he has also banked on the Prime Minister's Secretariat Office Memorandum, dated 14‑6‑1977, intimating that his transfer, on 1‑10‑1976, had been made in the public interest. It appears that, although the Establishment Division had rejected his claim more than once, they were persuaded to change their thinking after the official made a further representation on 14th August, 1977 and he was informed on 10‑10‑1977 that the services rendered by him as Stenotypist in the Prime Minister's Secretariat (Public) would be counted for the purpose of seniority. This was a completely erroneous decision and contrary to the normal rules. Paragraph 6 (b) of the Government Office Memorandum, dated 31st March, 1951, is applicable to persons holding permanent posts in their parent offices, vide. paragraph 9 of the said Memorandum, wherein it has been clearly stated that "as regards persons employed on a temporary basis, there is no question of the protection of their interests in their previous office, since on transfer to another office they will automatically cease to be members of their previous office." . In the light of these instructions, respondent No. 2, who had ceased to have anything to do with the grime Minister's Secretariat (now C. M. L. A.'s Secretariat),, could not claim to count his previous service, for the purpose of seniority, on his appointment in the Establishment Division.

6. It is, however, seen that paragraph 9 of the Government's instructions referred to, does make provision for protection of the interests of a temporary employee transferred from one office to another. The relevant passage of the said paragraph says : "If, however, an occasion arises in which a temporary person is compulsorily transferred to another office as a result of conscription, the question regarding the protection of his interest in his original office should be decided in consultation with the Cabinet Secretariat (Establishment Branch)". It was urged on behalf of the respondents that the instant case was covered by this part of the instruc tions: We are afraid, we cannot agree with this view of the matter. For one thing., it has neither been established, not even claimed, that Respon dent No. 2 was posted in the Establishment Division on conscription. No requisition, for his posting was made, by the Establishment Division. On the contrary, the Prime Minister's Secretariat, on their own, decided to transfer him to the Establishment Division. We do not think, the I Prime Minister's Secretariat were competent to post him to the Establishment Division. It, however, appears that, for some reason or the other, they, did not want to retain this official with them and, therefore, they asked the Establishment Division to take him on their strength. Most probably, the Establishment Division had no vacancy wherein he could be absorbed. Therefore,, to make room for this particular employer by office order dated 5‑10‑1976; they placed the services of one of their Stenotypists, Mr. Farooq Ahmad, at the disposal of the Prime Minister's Secretariat. In this way, they were able to accommodate Respondent No. 2 within their authorized strength. However, However, neither in the. Prime Minster's Secretariat Memo. placing the services of Respondent No. 2 at the disposal .of the Establish ment Division nor in the Establishment Division Office Order relating to Mr. Farooq Ahmad was any mention made of exchange of the two employees between the two offices. It is thus‑clear that the appointment of Respondent No. 2 in the Establishment Division was not made in consequence of any conscription. Nevertheless, after a lapse of more than months, the Prime. Minister's Secretariat informed the Establishment Division that the transfer of the official had been made in the public interest. Since the Prime Minister's Secretariat were not competent to, transfer one of their employees to the. Establishment Division, unless the Establishment Division had asked for him, the certificate given by the Prime Minister's Secretariat does not carry any meaning and has no bearing on the question of the seniority of Respondent No. 2. Besides; the instructions under discussion stipulate that, in all cases where the question of protection of the interests of a temporary employee compulsorily transferred to another office arises, the matter should be decided in consultation with the Cabinet Secretariat (Establishment Branch). In the instant case, the matter was not referred to the Establishment Division at the time the employee was posted in the Establishment Division. Not only this, even the certificate that the shifting of the employee from the Prime Minister's Secretariat to the Establishment Division had been done in the public interest, was given after the lapse of so many months, which clearly indicated that it was an afterthought and not an arrangement originally contemplated at the time of the said shifting.

8. It is clear, from the above discussions that the seniority granted to Respondent No. 2, by the Establishment Division Memorandum, date 10‑10‑1976, was against the rules and not justified on merit. It was also a decision which was bound to create many administrative problems, on account of its repercussions, particularly because a large number of identi cal cases, in which similar benefits had not been conceded to other. personnel in the Establishment Division, would have had to be reopened, involving a large number of changes in the relative positions of the employees. Obviously, it was because of this realisation that, in spite of the fact that decision had been taken, by the competent authority on 9‑10‑1977, and conveyed to Respondent No. 2 on 10‑7‑1977, to allow him seniority with effect from an earlier date, this decision was not implemented in so far as the seniority lists circulated on 6‑10‑1979 and 19‑3‑1980, respectively were concerned; because, in these lists the official was not shown as having been given the benefit of the decision conveyed to him. On the contrary, when he made a subsequent representa tion on 20‑3‑1980 and 31‑5‑1980, his prayer was not granted and even the CMLA's Secretariat was requested, on 30‑7‑1980, to recall him, a request which was not acceded by the said Secretariat. Evidently, the Establish ment Division had realised that the decision conveyed to Respondent No. 2 on 10‑10‑1977 was unjustified and that is why it was neither incor porated in the seniority lists issued nor made known to other colleagues of his in the same cadre. Even the departmental file on the subject records that although, as late as 27‑2‑1978, a decision had been taken by the Joint Secretary to show the revised seniority of Respondent No. 2 in the senior ity list, no action was taken on this decision and even when, in his note dated 10‑7‑1978, the Section Officer Administration had made a query as to why no action was taken on the decision of the Joint Secretary, there was no reply available to this query. The decision to grant the seniority claimed by the concerned official being contrary to the rules, and not justified either on merit or on the basis of administrative necessity, it was more or less disowned by the Establishment Division itself. Therefore, when the question of promotion of Stenotypists as Stenographers came up for consideration by the Departmental Promotion Committee and the upgrading of Respondent No. 2, in the seniority list was effected without considering the possible objections of other Stenotypists, it was clearly unjust and unfair and contrary to the rules on the subject.

9. In the light of the above discussions; we are satisfied that the grant of back‑dated seniority to Respondent No. 2 was not only irregular but also contrary to the rules on the subject and, in the circumstances of the case, unjust and unfair to other employees of, this category, beside being administratively undesirable. The decision, therefore, cannot be sustained and is, accordingly, set aside. It is further ordered that Respondent No. 2 will be accorded seniority as Stenotypist in the Establish ment Division with effect from the date of his appointment in that Division i. e. with effect from 1‑10‑1976.

10. Before parting with this case, we would like to observe that the problems created by the demand for ante‑dating the seniority of Respondent No. 2 arose entirely because of the irregular manner in which the Prime Minister's Secretariat placed the services of the official at the disposal of the Establishment Division. Since, it was not within the competence of the Prime Minister's Secretariat to do so and if, by mutual arrangement, the Establishment Division had agreed to employ this official, the proper course for the Prime Minister's Secretariat would have been to relieve the official and allow him to go and join the Establishment Division. The Establishment Division are also responsible for creating a great deal of confusion by agreeing to grant seniority from a back‑date, having rejected it earlier on two or three occasions, and then subsequently neither imple menting the seniority allowed in writing nor cancelling it by means of a fresh order. If these two offices had dealt with the case more methodically, a great deal of time and energy, not only of the officials concerned but also of the Establishment Division and this Tribunal would have been saved. In our opinion, the Prima Minister's Secretariat should have, if they wanted to dispense with services of one of their employees, done so without forcing him upon the Establishment Division, where there was no vacancy available for him.

11. With the above orders the appeal is allowed.

12. No order as to costs.

13. Parties be informed.

JUSTICE SHAH ABDUR RASHID (CHAIRMAN).‑ I agree "with the conclusion.

Appeal allowed.