M. TAHIR RASHID Versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD

1. SYED ALLY MADAD SHAH (CHAIRMAN).‑‑‑ All the three appeals are of identical nature involving question of seniority. They have been heard together. They are disposed of by this one judgment.

2. The appellants herein, M/s. M. Tahir Rasheed, Amir Ahmad and Kanwar Khalid Ali, and the respondents 5 to 83 were employed as Preventive Officers, Customs Karachi. The appellants and 71 other candidates, who are amongst the respondents herein, were selected in one batch for appointment as Preventive Officers (Grade‑13) and they were issued letters of offer of appointment on 6‑7‑1980. They joined duty on different dates. One consolidated order of their appointment, being Office Order No. 298/80? ESTT(P) was issued on 6th August; 1980. The order of their appointment reads as under:‑‑

CUSTOMS HOUSE KARACHI

2. No. S‑38‑39/74‑ESTT:(P), Karachi dated the 6th August, 1980.

3. OFFICE ORDER NO. 298/80‑ESTT(P)

4. The following persons have been appointed as temporary Preventive Officer in National Pay Scale Grade‑13 (Rs.490‑30‑790/32‑950) in this Customs House, from the dates shown against their names on the terms and conditions laid down in their offer of appointment and duly accepted by them.

5. S. No. ?

6. Name M/s

7. Date of

8. Joining

9. S. No.

10. No.

11. Name (M/s.)

12. Date of

13. Joining

14. Ahmad Shuja ???

15. 21‑7‑80

16. 38.

17. Muhammad Khursheed khan

18. 28‑7‑80

19. Javed Akhtar

20. ? Mughal ???????????

21. 21‑7‑80

22. 39.

23. Ghulam Mohiuddin

24. Chishti

25. 21‑7‑80

26. Badruddin Jatoi

27. 8‑7‑80

28. 40.

29. Rais Azam Khan

30. 19‑7‑80

31. M. Afzal Khan

32. ? Magsi

33. 17‑7‑80

34. 41.

35. Muhammad Khan

36. 22‑7‑80

37. Najam Hameed

38. 12‑7‑80

39. 42.

40. S. Sohail Zaidi

41. 9‑7‑80

42. Muhammad Ibraheem

43. 12‑7‑80

44. 43.

45. Munawar Ali

46. ? Saleemi

47. 19‑7‑80

48. Mir Ali Raza

49. 22‑7‑80

50. 44.

51. Talat Qamar

52. 17‑7‑80

53. Sardar Abdul Qayyum Khan

54. 10‑7‑80

55. 45

56. Tariq Javed

57. 16‑7‑80

58. Rukhsana Ishrat

59. Arbab

60. 9‑7‑80

61. 46.

62. Amir Ahmad

63. 8‑7‑80

64. Habibur Rehman

65. 14‑7‑80

66. 47.

67. Rashid Ali Khan

68. 21‑7‑80

69. Munir Ahmad

70. 12‑7‑80

71. 48.

72. Amjad Fervez

73. 22‑7‑80

74. Muhammad Sohail Naqi

75. 9‑7‑80

76. 49.

77. Amjad Mansoor

78. 19‑7‑80

79. Muhammad Rahim Marwat

80. 21‑7‑80

81. 50.

82. Muhammad Iqbal II

83. 12‑7‑80

84. Ghazanfar Ali

85. 20‑7‑80

86. 51.

87. Javed Iqbal

88. 17‑7‑80

89. Alyson Herald Alferd

90. 9‑7‑80

91. 52.

92. S. Anwar Husdsain

93. 9‑7‑80

94. Sabeeh Yousuf

95. 21‑7‑80

96. 53.

97. Shakirullah Khan

98. 19‑7‑80

99. Tayyab Hassan

100. 14‑7‑80

101. 54.

102. Ateeq Ahmad

103. 21‑7‑80

104. Ali Azhar Shah

105. 22‑7‑80

106. 55.

107. A. Parvaiz Bazai

108. 22‑7‑80

109. Ali Manshah

110. 21‑7‑80

111. 56.

112. Muhammad Siddiq

113. 17‑7‑80

114. Athar Hussain Khan

115. 22‑7‑80

116. 57.

117. Mashooq Ahmed

118. 16‑7‑80

119. Ch. Muhammad Ali

120. 12‑7‑80

121. 58.

122. M. Tahir Rasheed

123. 9‑7‑80

124. Anisa Tayyaba

125. 19‑7‑80

126. 59.

127. Ahmed Kabir

128. 10‑7‑80

129. Amir Shahid Ali Khan

130. 10‑7‑80

131. 60.

132. Tariq Mahmood

133. 19‑7‑80

134. Raja Zaki Babar

135. 22‑7‑80

136. 61.

137. Arif Munir

138. 14‑7‑80

139. Vaqar Zahoor

140. 13‑7‑80

141. 62.

142. Abdul Qadir Ghumro

143. 12‑7‑80

144. M. Hanif Babar Khan

145. 17‑7‑80

146. 63.

147. Muhammad Faronq

148. 22‑7‑89

149. Abdul Qayyum

150. 22‑7‑80

151. 64.

152. Ghazanfarullah

153. 9-7‑80

154. Khalilur Rehman

155. 20-7‑80

156. 65.

157. Kaleemullah

158. 31‑7‑80

159. Sajid Ali Khan ?

160. 22‑7‑80

161. 66.

162. Mir Zarar bin Azmat

163. 12‑7‑80

164. S. Qamar Abbas

165. 12‑7‑80

166. 67.

167. Attaullah

168. 16‑7‑80

169. A. Saeed Khan

170. 21‑7‑80

171. 68.

172. Kifayatullah Khan

173. 21‑7‑80

174. Muhammad Iqbal‑I

175. 19‑7‑80

176. 69.

177. Nihar Muhammad

178. 15‑7‑80

179. Muhammad Akram, Khan

180. 22‑7‑80

181. 70.

182. Sarfarazul Hasan

183. 20‑7‑80

184. Shoaib Ahmad

185. 22‑7‑80

186. 71.

187. Shaibzar Khan

188. 2‑8‑80

189. S. Irfanullah

190. 12‑7‑80

191. 72.

192. Abdul Ghaffar

193. 20‑7‑80

194. Parvez Iqbal

195. 21‑7‑80

196. 73.

197. Shabaz Khan

198. 17‑7‑80

199. Kanwar Khalid Ali Khan

200. 9‑7‑80

201. 74.

202. Sarfaraz Ahmad

203. 19‑7‑80

204. They have been medically examined by Civil Surgeon, Government of Pakistan and declared fit for Government service (list prepared merit-?cum‑seniority) by order of Collector of Customs (Preventive).

205. (Sd.)

206. S.F.A. Razvi,

207. For Collector of Customs

208. ???????? (Preventive.)"

3. A seniority list was issued in 1985, wherein names of the appellants and their batch‑mates were placed, amongst others, in the chronological order of the respective dates of their joining duty. The seniority list was given effect to unchallenged until 1988, when one of the respondents, namely Javed Akhtar, respondent No. 6 herein, made representation for re‑determination of his seniority on‑ the basis of merit in the selection rather than the dates of joining duty. The Central Board of Revenue upheld his representation by a decision dated 1‑3‑1990 and issued order C. No. 16/79/88‑ACE‑II, dated 1‑3‑1990 for recasting the seniority list in the order of merit. Feeling apprehensive of adverse effect of the seniority list that was to be revised, the appellants made departmental appeals to the Chairman, Central Board of Revenue, against that decision, on ~9‑3‑1990. They did not receive any orders until they filed appeals before this Tribunal on 26‑7‑1990, challenging the order of the CBR dated 1‑3‑1990 directing that the seniority list issued in 1985 should be maintained.

4. The appeals are directed against the Establishment Division (R‑1), the Chairman, Central Board of Revenue (R‑2); Collector of Customs (R‑3) and Second Secretary, CBR (R‑4); and 79 Preventive Officers by their names. The Government functionaries have not filed written objections. From amongst the respondents impleaded in their individual capacity, only few of them, viz. respondents 6, 16 and 28, have filed written objections in Appeals Nos.51 and 52(x) of 1990, and none has filed objections in Appeal No. 53(x) of 1990.

5. At the hearing of appeals, Mr. Kanwar Mukhtar Ahmad, Advocate represented the appellants. Mr. Abdul Sattar Mughal, Advocate appeared on behalf of respondent No. 5, while Mr. Salman Hamid, Advocate appeared on behalf of Mr. Qazi Faiz Isa, Advocate for respondent No. 6 in Appeals Nos. 51 and 52(x)/90 to seek adjournment. He presented adjournment application during the course of the hearing of the appeals. The request for adjournment was not acceded to. Mr. Manzoor Ali Khan, Advocate appeared on behalf of respondent No. 16, while Mr. Sabihuddin Ahmad, Advocate appeared on behalf of respondent No. 28 only in Appeals Nos. 51 and 52(x)/90. Although the respondents 1 to 4 have not filed written objections and there was no appearance on behalf of respondents 2 to 4, and the respondent No. 1, i.e. the Establishment Division was represented by only an Assistant, yet we invited Mr. Niaz Ahmad Khan, Standing Counsel for the Government, who happened to be present to represent the Government in other cases, to render assistance in determination of important question of law and he willingly expressed his views on the legal aspects of the case. He subscribed to the view‑point of the learned counsel for the private respondents. None appeared for the other respondents.

6. The subtle question involved in these appeals is: What is or what should be the criteria for determination of inter se seniority of more than one candidates selected for appointment in one batch? The contention of the appellants, reiterated by the learned counsel having represented them, was that the criterion for the determination of such question is the date of joining the duty irrespective of the merit assigned to the candidates by the selecting body. He placed reliance on the instructions contained in clause (iii) of Paragraph 19 of the Cash and Accounts Manual, Karachi Customs House, Vol. I (corrected up to March, 1951) and a judgment of this Tribunal in Appeal No. 60(k)/81. On the other hand, the learned counsel for the contesting respondents, named above, urged that the criterion for determination of seniority in such cases was the merit assigned by the selecting body and not the date of joining duty and they placed reliance on the judgments of this Tribunal in Appeal No. 161 (L)/86 and 173(x)/88. There is also another judgment of this Tribunal in Appeal No. 96(x)/88. It was only in the Appeal No. 60(x)/81 that it was held by a Bench of this Tribunal that the inter se seniority of the candidates selected for appointment in one batch could be reckoned from the date of joining duty and not on the basis of merit assigned by the selecting forum. In all other decisions of this Tribunal, referred to above, the view held was that seniority in such cases was to be reckoned on the basis of the merit assigned by the selecting body, no matter that the candidates had joined duty on different dates. This controversy stands finally settled by the judgment of the Supreme Court in the case of Ziaul Haq and others v. Secretary, Ministry of Education, Islamabad and others, reported in 1991 SCMR 1632, wherein it was held that inter se seniority of the candidates at one selection was to be determined on the basis of the merit assigned to the candidates by the Federal Public Service Commission in pursuance of the General Principles of Seniority. The learned counsel for the appellants, however, contended that the General Principles of Seniority were applicable only in the cases of selections made by the Federal Public Service Commission and not in other cases. His contention was controverter by Mr. Manzoor Ali Khan, Advocate representing the respondent No. 16, by making reference to paragraph 2 of Sl. No. 158 of ESTACODE, 1983 Edition, at page 152, laying down that the General Principles of Seniority extended to all classes of service except where any rules, principles or instructions of seniority duly approved by the Establishment Division already existed specifically for a particular service or cadre, in which case seniority would continue to be determined in accordance with those rules, principles or instructions. The learned counsel for the appellants yet pressed his argument that there were specific rules for determination of seniority in the cases of employees in the Customs Department, as contained in the Cash and Accounts Manual, Karachi Customs House, and, therefore, the case of the appellants and the respondents stood excepted from the operation of the general principles of seniority. The instructions relied upon by him were published in the year 1951 whereas the general principles of seniority were published in O.M. dated 31‑12‑1970. Moreover, the instructions issued in the Cash and Accounts Manual for the employees of the Customs Department did not visualise the question of inter se seniority of the candidates selected in one batch but it refers to the determination of seniority on the basis of dates of appointment. In the instant cases, the tussle over seniority is amongst the candidates selected at one selection and they were assigned their merit position and their letters of appointment were issued on one and the same date. The merit position of the appellants was not at the top and yet they were placed in the seniority list on the basis of the dates of their joining duty. It has been held by this Tribunal in more than one cases, referred to above, that the date of joining duty is not the criterion for determination of seniority in the cases where the candidates have been selected in one batch and assigned merit by the selecting body and that decision was approved by the Supreme Court in the aforesaid of Ziaul Haq and others v. Secretary, Ministry of Education (1991 SCMR 1632). Thus, the answer to the question is that the inter se seniority of the appellants and the respondents selected in one batch is to be determined in accordance with the merit assigned by the Selection Committee and the decision taken by the Central Board of Revenue is unexceptionable.

7. Of course, the learned counsel for the appellants urged that the seniority list prepared in 1985 on the basis of the dates of joining duty by the candidates was not taken exception to at the appropriate stage and it was given effect to. The question of seniority could be reopened by the competent Authority suo motu even if there was apparent violation of the rules and orders and in the instant cases there was a representation by one of the respondents, i.e. the respondent No. 6, and the matter was reconsidered and correct decision was given that the seniority list may be recast in pursuance of the General Principles of Seniority that the candidates selected in one batch shall reckon their seniority as per merit position determined by the selection body.

8. ? Consequent to the reasons recorded above, the appeals‑are dismissed as being without merit, but with‑no order as to costs.

209. A.A./769/Sr.F ????????????????????????????????????????????????????????????????????????? ??????????? Appeals dismissed.