MAJOR (RETD.) JAVED ALAM KHANZADA Versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD
1. SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑ Appellant Major (Retd.) Javed Alam Khanzada was inducted in the civil service in the District Management Group vide notification dated 7‑11‑1975. Likewise, three other officers, namely Lt.‑Col. M. Asghar Khan (respondent No.2), Lt.‑Col. M. Iqbal (since expired) and Lt.‑Col. Mohammad Nisar Ahmad Khan (respondent No.3) also were inducted in the civil service in the same Group under the same notification. Four civilian officers by names M/s. ‑ Khalid‑ Nawaz Cheema, Mumtaz Ali Akhunzada, Ghulam Mohammad Taj and Kamran Zafar also were inducted in the same Group under the same notification. All of them were appointed as Deputy Commissioners (under training) by letter dated 12th November, 1975 addressed to the Accountant‑General, Pakistan Revenues, Islamabad from the Cabinet Secretariat. The appellant and three Army officers, named above, were placed in Grade‑18. The said Army officers were allocated to different Provinces after completion of their training in May, 1976. They were given postings at different places. In due course of time, the respondents Lt.‑Col
2. M. Asghar Khan and Lt.‑Col. Muhammad Nisar Ahmad Khan were placed in Grade‑19. The appellant made representation for his placement in Grade‑19 but did not succeed. In the year 1985, gradation list of the officers in BPS‑18. 19 and 20, in the District Management Group, was circulated. The appellant found his name at S.No.24 amongst the Grade‑19 officers, whereas the names of the respondents 2 and 3 were placed amongst Grade‑20 officers. The appellant made representation on 28‑9‑1986 for equating his position in the seniority list with the respondents 2 and 3. His request was turned down as per letter dated 20th December, 1986. He preferred this appeal on 22‑1‑1987, with the prayer that the Government may be directed to place him in BPS‑19 with effect from the order of his induction into the civil service (District Management Group), along with respondents 2 and 3, and allow him due seniority by placing him just, after the name of the respondent No.3 amongst the officers in BPS‑20.
2. The appellant has impleaded the Federation of Pakistan through the Establishment Division as the respondent No.1. He has also impleaded as many as 41 other officers as respondents besides the respondents 2 and 3. Written objections have been filed on behalf of the Federal Government. Written objections have also been filed by the respondents Nos. 9, 13, 19, 21 and 35. Other respondents have chosen to remain ex parte. Several preliminary objections has been raised on behalf of the Federal Government. They may he summarised as under:‑
(1) The appeal is not maintainable in law or facts.
(2) The appellant has no legal cause of action for filing the appeal.
(3) The appellant did not claim seniority in his representation dated
3. 29‑7‑1980.
(4) The appellant did not claim promotion in his representation dated
4. 28‑9‑1986.
(5) The issue relating to counting of Army service for the purpose of seniority stood settled by an order of a Full Bench of this Tribunal in Appeal ~No. 90 (R)/82 by as Brig. Sher Ali Baz v. Establishment Division and others.
(6) The appeal is barred by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973 as regards the claim for promotion with retrospective effect.
(7) The appeal is barred by section 8 (4) of the Civil Servants Act, 1973,''and general principles of seniority in respect of the claim for seniority over the respondents who already stood promoted to the post of Commissioner (BPS‑20) and equivalent.
(8) The appeal is barred by limitation for the reasons that the respondents 2 and 3 were appointed in Grade‑19 with effect from 7‑11‑1975 and were given seniority in Grade‑19 from the same dated, whereas the appellant's representation for promotion to Grade‑19 was rejected as per letter dated 18‑9‑1980 and his another representation was withheld on 28‑9‑1986 and the appeal filed on 22‑1‑1987 raising the same issue is time‑barred.
5. The stand of the Government on the factual aspect of the case is that the respondents 2 and 3 were not promoted to Grade‑19 but they were actually inducted in that grade with effect from 8‑11‑1975, whereas the appellant was inducted m the service in Grade‑18 from that date and, therefore, his seniority could not be equated with that of those two respondents.
3. The objections filed by the respondents 1). 13, 19, 21 and 35, put in nutshell, are that the appointment of the appellant was not made in accordance C with the provisions of the Civil Servants Act, 1973 and, at any rate his appointment was made in Grade‑18 as per notification dated 7th November 1975 and he could, at the most, claim seniority and benefits on the basis of his service reckoned from that date. They have also challenged the maintainability of the appeal and also raised the question of limitation.
4. The appellant's grievance is that since he was appointed as Deputy Commissioner along with the respondents 2 and 3 (Lt.‑Col. M. Asghar Khan and' Lt.‑Col. Muhammad Nisar Ahmed Khan), his name should have been equated with their names in the impugned seniority list. Reference may, therefore, be made to the relevant appointment order and subsequent orders. The notification of the appointment of the appellant and other candidates is dated 7th November, 1975. 1t reads as under:
6. "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION, RAWALPINDI.
7. 7th November, 1975.
NOTIFICATION
8. No: 2/1/75‑R.lII. The under mentioned officers are appointed as Deputy Commissioner (under training) from the date they assume charge of their post at the Academy for Administrative Training, Lahore:
(1) Mr. Khalid Nawaz Cheema, Private Secretary to Minister for Finance,
9. Planning & Economic Affairs, Islamabad.
(2) Mr. Mumtaz Ali Akhunzada, Section Officer (Election), Local
10. Government Department, Government of N.‑W.F.P., Peshawar.
(3) Mr. Ghulam Muhammad Taj, Director, Export Promotion Bureau,
11. Karachi.
(4) Mr. Kamran Zafar, Private Secretary to Minister for Interior, State &
12. Frontier Regions, Islamabad.
(5) Lt.‑Col. Mohammad Nisar Ahmad Khan (PA.5872),
(6) Lt.‑Col. Mohamma d lqhal (PA. 0267).
(7) Lt.‑.cot. M. Asghar Khan (PA. 5191).
(R) Maj. Saved Alan Khanzada (PA. 6925).
13. (Sd.)
14. A17AZ HUSSAIN ZUBERI,
DEPUTY SECRETARY TO THE
GOVERNMENT OF PAKISTAN
15. Phone: 68270"
16. The next document relied upon by the appellant is a letter dated 12th November, 1975, addressed to the Accountant General, Pakistan Revenues, from the Establishment Division. This letter too is reproduced below:‑
17. "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION, RAWALPINDI.
18. 12th November, 1975.
19. No: 2/2/75‑R. III of 2nd February, 1975.
20. To
21. The Accountant General, Pakistan Revenues,
22. Rawalpindi/Islamabad.
23. Subject: TRAINING OF OFFICERS SELECTED AS DEPUTY COMMISSIONER IN THE DISTRICT MANAGEMENT GROUP‑‑ PAYMENT OF SALARIES Etc.
24. Sir,
25. I am directed to refer to Establishment Division letter No. 2/2/75‑R.I1I, dated 8th November, 1975, on the above subject and to say that the under mentioned officers of the Pakistan Army have been selected for appointment as Deputy Commissioner:‑
(1) Lt.‑Col. Mohammad Nisar Ahmad Khan.
(2) Lt.‑Col. Mohammad Iqbal.
(3) Lt.‑Col. M. Asghar Khan.
(4) Maj. Javed Alam Khanzada.
2. The officers will undergo training at the Academy for Administrative Training, Lahore for a period of six months. Subject to satisfactory completion of the training, they would be posted as an understudy with a Deputy Commissioner, in the rank of Additional Deputy Commissioner, for a period of 6 months, and thereafter as Deputy Commissioner in charge of a district.
3. The pay of these officers will be fixed in Grade 18 at the stage corresponding to their substantive pay in the Army subject to tic maximum of the grade. During the training period, including period of understudy; the officers mentioned above will draw pay in Grade‑18. They will draw special pay, sumptuary allowance and free house as admissible to Deputy Commissioner only on their posting as Deputy Commissioner in charge of a district.
26. 4.Since the above officers will receive training at the Academy for Since the above officers will receive training at the Academy for Administrative Training, Lahore, the Accountant General, Punjab may kindly be authorised to disburse pay and allowances to these officers. The Director of Academy will function as their Head of Office.
27. Your obedient servant.
28. Sd/‑AIZAZ HUSSAIN ZUBERI,
29. DEPUTY SECRETARY,
30. Phone 68270."
31. The third document pressed in aid by the appellant is a d.o. letter addressed to the Chief Secretaries in the Provinces of the Punjab, Sindh and N.‑W.F.P. by the Special Secretary, Cabinet Secretariat, Establishment Division, on 4‑5‑1976, a copy whereof has been placed on record as Annexure `C' to the memo of appeal. It is reproduced below:‑
32. "Subject: Allocation of Deputy Commissioners (under training) to Provinces .
33. My dear Chief Secretary,
34. As you are aware, in pursuance of the Prime Minister's directive, certain officers not belonging to the District Management Group were selected for appointment as Deputy Commissioner. These officers have since been given 6 months training at the Academy for Administrative Training in various subject including Revenue, Civil and Criminal law. An outline of their course of study is enclosed for your information.
2. These officers have completed the above course successfully. They are now required to be given on‑the‑job training for 6 months as understudy with a Deputy Commissioner. During the period of understudy, they would be given the rank of Additional Commissioner. It has been decided 'to post them to the Provinces, as follows:‑ ‑ r;;~i.ih:zsX~na~ss
35. PUNJAB:
(1) Lt. Col. M. Nisar Ahmed Kh.en.
(2) Lt.‑Col. M. Asghar Khan. ‑yY ._ . .:f‑ ,. , wvv ‑ ; >;
(3) Mr. Kamran Zafar.
36. ..:. t.,:.:
37. SINDH‑w;.
38. Mr. Ghulam Mohammad Taj. ,.‑.;:;:,,, .,;r: i~;:
39. N.W.F.P. . _ ,
(1) Major Javed Alam Khanzada.
(2) Mr. Mumtaz Ali Khanzada.
(3) It is requested that arrangements may kindly be made to post the above officers as Additional Deputy Commissioner (under‑study) with experienced Deputy Commissioners in the Major Districts. Though serving as understudy, every effort should be made that they are given actual charge of administrative, revenue and magisterial work. They should be exposed to dealings with the public. The Deputy Commissioner and the Commissioner in whose charge they are placed should be asked to give them all necessary guidance and instructions in this regard. On completion of the period of understudy, a report on their performance may be forwarded to the Establishment Division The officers would be posted as Deputy Commissioner, under orders of respective Provincial Governments after they have been approved for appointment as Deputy Commissioner by the Federal Government on receipt of the abovementioned reports.
(4) During the period of their posting as Additional Deputy Commissioner (understudy), the officers will draw pay in Grade‑18 in accordance with the L.P.C. to be issued to them by the Accountant General, Punjab, Lahore. They will draw special pay, sumptuary allowance and free house as admissible to a Deputy Commissioner in charge of a district. Meanwhile, however, they may please be provided with official accommodation in the district of their posting on payment of normal rent. The Military officers, as soon as they are approved for appointment as Deputy Commissioner, will be released or retired from the Army.
(5) Requisite orders posting them as Additional Deputy Commissioner (understudy) may kindly be issued urgently with copy to the Director, Academy for Administrative Training, Walton Campus, Lahore, for communication to the officers.
(6) Kindly accord the matter priority."
3. The learned counsel for the appellant, relying on the aforesaid documents, has urged that the appellant and the respondents 2 and 3 were treated alike from the day of their appointment and until their allocation to different Provinces but the respondents 2 and 3 were given rise to Grade‑20 (BPS‑20) but the appellant was not given benefit of promotion to even Grade‑19 and his representation was turned down by letter dated 18th September, 1980 and that discrimination perpetuated and ultimately his name appeared in the gradation list of 1985 at S.No.25 amongst the Grade‑19 officers, whereas the names of respondents 2 and 3 were mentioned amongst the names of Grade‑20 officers. He has further urged that the appellant made representation dated 28‑9 1986 and he was informed under letter dated 20th December, 1986 from the Services and General Administration Department, Government of N.W.F.P. that his representation was withheld by the Establishment Division on the ground that his representation was time‑barred and was, therefore, withheld. The appellant's representation dated 29th July, 1980 and reply thereon dated 18 th September, 1980, referred to by the learned counsel for the appellant, are reproduced below:‑
40. "PA/DS (A) S&GAD/P/80
41. 29th July, 1980.
42. To
43. The Secretary to Govt. of Pakistan,
44. Establishment Division,
45. Cabinet Secretariat,
46. Rawalpindi.
47. Through: Proper Channel‑
48. Subject: Subject: PRO MOTIONS DMG OFF ICERS:
49. Sir,
50. I have the honour to submit that I was selected for induction into the DMG as Deputy Commissioner under training m November, 1975 after 13‑1/2 years service including PMA in the Pakistan Army. To date I have served for 18 years which includes 4 years and 8 months in the Civil.
(2) In accordance with Establishment Division O.M. No. 3/7/74, AR‑II of 20th May, 1974, twelve years service in Grade‑17 and above is required for promotion to Grade‑19. I have put in 15 years service in Grade‑17. The Establishment Division under another policy decision equates the rank of the Major with Grade‑18 and for promotion to Grade‑19 seven years service is required in Grade‑18. I have 10‑1/2 years service as a Major.
(3) Rules protect the service of the non‑gazetted employees and the total service in grades below Grade‑16 counts towards service in Grade‑17 whereas in my case the Commissioned Service is not considered for promotion to Grade‑19.
51. (4)At the time of the induction into civil service and appointment as Deputy Commissioner under training on 8th November,1975 we were four Army Officers. One unfortunately died during training. Out of the remaining here officers (including myself) two of my colleagues i.e. Lt.‑Col. Retd.) M. Asghar Khan now Director Social Welfare, Lahore and Lt:
52. Col. (Retd.) Nisar Mohammad Khan, now Commissioner Multan Division have been given Grade‑20 and I have not been considered for Grade‑19. Incidentally I may mention that Col. Nisar Mohammad Khan is only two years senior to me in the Army. It is submitted that we were all appointed under the same terms and conditions vide Establishment Division Letter No. 2/1/75‑III, dated 9th October, 1975, but I have not been treated at par with my colleagues. If not (trade‑20 at least I should have been considered for Grade‑19.
53. (5)In view of my Army service and on the analogy of my colleagues I shall be highly obliged and grateful if my case for promotion to Grade‑19 ", favourably considered.
54. Yours obediently,
55. (SD)
56. Major Javed Alam Khanzada.
57. Deputy Secretary (Admn.).
58. "GOVERNMENT OF N: W.F.P.
59. SERVICES, GENERAL ADMN. SPORTS AND TOURISM
DEPARTMENT
60. (SERVICES WING)
61. NO: SOI (S & GAD) 3‑67/76, Dated the 18th Sept: 1980.
62. To
63. Major Javed Alam Khanzada,
64. Deputy Secretary (Admn) to
65. Government of N.W.F.P. S&GAD.
66. Subject: PROMOTION OF DISTT. MANAGEMENT GROUP OFFICERS .
67. Sir,
68. I am directed to refer to your application No. PA/DS(A)/S&GAD/P/80, dated 29‑7‑1980, addressed to the Secretary to Government of Pakistan, Establishment Division, Rawalpindi and to say that the Establishment Division, Government of Pakistan have informed that Military Service rendered by an officer on his induction to Civil Service does not count towards computing length of service prescribed for promotion to various grade. That Division, has observed that as you have not completed 7 years services in the Management Group required for promotion to Grade‑19, you are not eligible for promotion to that grade.
69. Your obedient servant,
70. (SD.)
71. MIAN MUHAMMAD,
72. SECTION OFFICER (SERVICES‑I)
73. PHONE: 73118"
74. 4.It would appear from the letter dated 18th September, 1980, reproduced above, that the appellant was informed that he was not considered for promotion to Grade‑19 as he had not completed the requisite service of seven years in Grade‑18. The appellant's representation dated 28‑9‑1986 addressed to the President through proper channel, was withheld as being time‑barred. Apparently, the appellant should have found his prospects like the respondents 2 and 3 since they were appointed as Deputy Commissioners under the same notification and they were placed in the same grade viz. Grade‑18 and they completed the training in the same batch and were also equated to different, Provinces under the same order. But the disparity in their career in service cropped up later and the reason there for has been disclosed in the written objections filed by the Federal Government that the respondents 2 and 3 were Lt.‑Cols in the Army whereas the appellant was a Major in the Army, a lower rank post, and the respondents 2 and 3 were placed in Grade‑19 from the date of their appointment in the District Management Group by order of the President on account of their higher rank in the Army service, whereas the appellant[ continued serving in Grade‑18 on account of his lower rank in the Army service and the respondents earned promotion to Grade‑20, while the appellant was promoted to Grade‑19. A copy of the notification of the placement of respondents 2 and 3 in Grade‑19 from the date of their appointment viz. 8‑11 1975 has been placed on record as Annexure R‑2 to the written objections filed on behalf of the Federal Government. It reads as under:‑
"GOVERNMENT OF PAKISTAN
CABINET SECRETARIAT
ESTABLISHMENT DIVISION
75. RAWALPINDI.
76. 4th June, 1978
' NOTIFICATION
77. No. 2/1/75‑R.III. The under mentioned officers who were appointed Deputy Commissioners (under training) vide Establishment Division Notification No. 2 1‑75‑R.III, dated 7‑11‑1975, are placed in Grade‑19 from the date of their appointment i.e. 8‑11‑1975 as Deputy Commissioner (under Training):
(1) Lt.‑Col. M. Asghar Khan.
(2) Lt.‑Col. Muhammad Nisar Ahmad Khan.
78. SD/‑ AIZAZ HUSSAIN ZUBERI
79. DEPUTY SECRETARY TO THE GOVT. OF PAKISTAN"
80. It would appear that the respondents 2 and 3 had the fortune of getting into Gradc‑19 from the date of their appointment as Deputy Commissioners viz. 8‑I1‑1975, as per notification, reproduced above, and, therefore, they left the appellant behind in the lower grade viz. Grade‑18 and they earned the next promotion to Grade‑20 and the appellant could earn the promotion to Grade‑19 only. Disparity could be sustained by virtue of the provisions contained in paragraph 4 of the District Management Group formation O.M. No. 2/2/74‑ ARC, dated the 23rd February, 1974, as amended vide O.M. of even number dated the 14th December, 1976, and the plenary power of the Federal Government for making Appointment to the Group at various levels by way of lateral entry, as provided under paragraph 8 of the said O.M. published in the ESTACODE 1983 edition, at pages 730 to 733. The relevant paragraphs are reproduced below for the sake of ready reference:
81. "(4) In view of the importance of the post of Deputy Commissioner which at present is a Grade‑18 post carrying special pay, it has been decided as follows:‑‑
(i) The post of Deputy Commissioner would be a selection post and selection would be made from amongst officers having at least 10 years service in Police. Armed Forces, Civil Administration or Military Lands and Cantonments Departments. The selected persons shall be given training in administration and law, if necessary, before posting as Deputy Commissioner.
(ii) To ensure appointments of experienced persons, the post of Deputy Commissioner in major Districts will be placed in Grade‑19. As in other groups, for promotion to Grade‑19 a minimum service of 12 years in Grade 17/18 shall be a condition precedent.
8. Lateral entry .‑‑ To bring in fresh blood and to relieve shortages, if any, at various levels, lateral entry will be resorted to. Lateral entry selections will be made only by the Federal Government."
82. It would appear that the respondents 2 and 3 could be appointed as Deputy Commissioner in Grade‑19 in view of the provisions and powers contained in paragraphs 4 and 5 of the Office Memorandum, referred to above. The appellant did not have a case for claiming to have been equated with them as he belonged to a lower rank in the Army, as indicated above.
5. The appellant seems to have entertained grievance also against seniority above him to the respondent No.37, Mr. Ghulam Muhammad Taj, who was one of the civilians having been appointed as Deputy Commissioner in the same batch under the same notification as was the appointment of the appellant as projected in paragraph 5 of the memo of appeal. This grievance was not agitated at the hearing of the appeal.‑ The Government have explained in the written objections that the respondent Mr. Ghulam Muhammad Taj was placed above the appellant on giving him benefit of his previous service in Grade-18. This treatment was in accordance with clause (2) of paragraph '9 of the aforesaid O.M, dated 23rd February, 1974, read with O.M. dated 14th December, 1976 where under the District Management Group was formed. It is provided therein that seniority in Grade‑18 and above would be determined on the basis of the date of continuous regular officiation in the grade. The appellant, therefore, has no case for challenging seniority above him of the respondent Mr. Ghulam Muhammad Taj.
6. As regards the preliminary objections put forth by the Department, some of them stand disposed of by the conclusions arrived at above. The main legal objection to be taken notice of is that of limitation. The appellant egitated the question of seniority after the publication of the gradation list in the year 1985 and he filed this appeal before the Tribunal after rejection of his representation H as per letter dated 20th December, 1986. He could, therefore, prefer the appeal: but he could not reopen the issues of seniority or promotion which were settled earlier and he remained quiet thereafter. The question of his seniority on merits has been discussed and repelled for the reasons recorded above.
7. In the result, the appeal is dismissed. No order is made for costs. I 1
83. M.Y.H./546/Sr. F Appeal dismissed.