ASHIQ HUSSAIN KHAN Versus PRIME MINISTER OF PAKISTAN, ISLAMABAD
SYED ALLY MADAD SHAH (CHAIRMAN):--‑ Appellant Mr. Ashiq Hussain Khan has preferred this appeal for determination of his seniority as Executive Engineer, serving the Pak. PWD, on consideration of the following facts.
2. The case of the appellant, briefly stated, is that he, on his selection by the Federal Public Service Commission, was appointed as an Assistant Executive Engineer (E/M) (Grade‑17) in the Pak. PAID on 14‑7‑1977. In the seniority list of the officers of the Pak. PWD (Grade‑17) issued in October, 1981, the name of the appellant was placed at the top, whereas the name of the respondent No. 5 Mr. Fatehul Mulk was the last one. In another seniority list of Grade‑17 Officers published on 14‑5‑1984, the name of the appellant was mentioned at S. No. 7 and that of the respondent No. 5 at S. No. 11. In a subsequent seniority list circulated in March, 1988, the seniority position of the appellant vis‑a‑vis the respondent No. 5 stood reversed and he was placed junior to the respondent No. 5. The appellant submitted representation dated 14‑9‑1988 against the change in his seniority position reflected in the seniority list of 1988. He received a communication dated 11‑4‑1989 under endorsement dated 29‑6‑1989 to the effect that the Establishment Division had informed that Mr. Fatehul Mulks (the respondent No. 5) was granted seniority in BPS‑17 in the. Pak. PWD with the approval of the Prime Minister and his representation of claiming seniority was not tenable. He then preferred this appeal on 27‑7‑1989 for setting aside the order dated 11‑4‑1989 and quashing the seniority list dated 17‑3‑1988.
3. The appellant has contended that he was regularly promoted as Assistant Executive Engineer (Grade‑17) in the Pak PWD on 14‑7‑1977, whereas the respondent No. 5 Mr. Fatehul Mulk had joined the Pak. PWD on 15‑2‑1981 and that position was reflected in the seniority list published on 1‑10‑1981 and so also in the list issued on 14‑5-1984 and the appellant was assigned seniority above the respondent No. 5 and there was no justification for reversing his seniority position and placing him below the respondent No. 5 in the impugned seniority list issued in March, 1988.
4. The respondents have res1sted the appeal. They have stated that the respondent No. 5 was appointed as Second Secretary (B‑17) in the Foreign Affairs Group on 5‑12‑1976 and his services were placed at the disposal of the Establishment Division on 1‑10‑1977 for his appointment as a Section Officer. They have further stated that since the appellant was appointed during the period between 1‑1‑1972 and 5‑7‑1977, his appointment in the Foreign Affairs Group was reviewed by the Federal Public Service Commission under the provisions of section 12‑A of the Civil Servants Act,1973 and the Commission had recommended him for appointment as Assistant Executive Engineer in the Pak. PWD and he was accordingly appointed in the Pak. PWD with effect from 15‑2‑1981 and he was assigned seniority as Assistant Executive Engineer (B‑17) in the Pak PWD from the date of his original appointment viz. 5‑12‑1976 as per policy decision approved by the Prime Minister.
5. At the hearing of appeal, the appellant was represented by Kanwar Mukhtar Ahmad, Advocate, while the respondents 1 to 4, who are the Government functionaries, were represented by Mr. Niaz Ahmad Khan, learned Standing Counsel; while the respondent No. 5 Mr. Fatehul Mulk did not appear although he had filed written objections.
6. The learned counsel for the appellant contended that the appellant joined service with Pak. PWD on 14‑7‑1977 whereas the respondent No. 5 entered the Pak. PWD on 15‑2‑1981 and the latter could not be made senior to the former by any stretch of imagination. He further contended that even by review of the appointment of the respondent No. 5 in the Foreign Affairs Group in the year 1976, he could not get seniority in Pak. PWD service from a date earlier than his actual entry in the service. He placed reliance on the cases reported in 1986 PLC (C.S.) 23 and 690; and PLD 1990 SC 1013. On the other hand, the learned counsel for the respondents 1 to 4 relied upon a summary of the case submitted to the Prime Minister and orders passed thereon, as available in File No. 2/1/79‑Rev.I of the Establishment Division.
7. The events of the entry in the Federal Government Service by the appellant and the respondent No. 5 are not disputed. To repeat them for convenience sake, the appellant entered Pak PWD as a regularly appointed Assistant Executive Engineer (E/M) in Grade‑17 on 14‑7‑1977 and the respondent No. 5 was appointed as a Second Secretary (B‑17) in the Foreign Affairs Group, by way of lateral entry, with effect from 5‑12‑1976 and his services were later placed at the disposal of the Establishment Division on 1‑10‑1977 for his appointment as a Section Officer and he remained there as such until he was appointed as Assistant Executive Engineer (B‑17) with the Pak. PWD with effect from 15‑2‑1981. By virtue of the dates of actual entry into the Federal Government service of the appellant and the respondent No.5, the respondent No5 was the first in time; but the latter entered Pak. PWD much after the entry of the appellant in the Pak. PWD. Initially, the appellant was shown senior to the respondent No. 5 in the seniority lists published in the year 1981 and 1984 but the position of their inter se seniority was reversed in the seniority list published in the year 1988 and that change gave rise to the filing of this appeal. The respondents 1 to 4 have explained the re-determintion of the inter se seniority of the appellant and the respondent No. 5 in the written objections as under:‑‑
"The respondent No. 5 was appointed as Second Secretary (BPS‑17) in the Foreign Affairs Group w.e.f. 5‑12‑1976. His services were placed at the disposal of Establishment Division on 1‑10‑1977 for appointment as Section Officer. As he was appointed between the period 1‑1‑1972 to 5‑7‑1977, his appointment in the Foreign Affairs Group fell within the purview of section 12‑A of the Civil Servants Act, 1973. The case was reviewed and referred to the Federal Public Service Commission under section 4 of the FPSC (Functions) Rules, 1978. The FPSC recommended him for appointment as Assistant Executive Engineer in the Pakistan PWD where he was to be appointed on regular basis. It was decided to grant seniority to the lateral entrants who were found fit for retention in the same post/group/grade from the date of original appointment. But with regard to those who were found fit by the Commission for posts/groups/grades other than those in which they were originally appointed, it was subsequently decided that they may also be given seniority in the new groups/posts/grades from the date of their original appointment. Hence, the respondent alongwith such other officers was allowed seniority as Assistant Executive Engineer (BPS‑17) in the Pak. PWD from 5‑12‑1976, the date on which he was originally appointed as Second Secretary in the Foreign Affairs Group."
The statement of the respondents 1 to 4 in the written objections reproduced above, is based on the orders passed on the summary submitted to the Prime Minister for resolving the question of seniority of the appointees in the Federal Government service during the period from 1‑1‑1972 to 5‑7‑1977, whose case were reviewed under the provisions of section 12‑A of the Civil Servants Act, 1973. It would be worthwhile to reproduce the provisions of section.12‑A of the Civil Servants Act, 1973:
"12‑A. Certain persons to be liable tot removal etc.‑‑‑Notwithstanding anything contained in this Act or in the terms and conditions of a civil servant appointed or promoted during the period from the first day of January, 1972 to the fifth day of July, 1977, the President or a person authorised by him in this behalf may,‑‑
(a) without notice, remove such a civil servant from service or revert him to his lower post as the case may be, on such date as the President or, as the case may be, the person so authorised may, in the public interest, direct; or
(b) in a case where the appointment or promotion of such a civil servant is found by the President or, as the case may be, the person so authorised to suffer from a deficiency in the minimum length of service prescribed for promotion or appointment to the higher grade, direct, without notice, that seniority in such case shall count from the date the civil servant completes the minimum length of service in such appointment or promotion, as the case may be.
The case of the respondent No. 5, alongwith many other appointees during that period, was reviewed under the provisions of section 12‑A of the Civil Servants Act, 1973 and the appointment of the respondent No. 5 was approved for his appointment as Assistant Executive Engineer (B‑17) in the Pak. PVD and it was on the basis of that recommendation that he was appointed as Assistant Executive Engineer (B‑17) in the Pak. PWD. The recommendations in the summary at paragraph 14 were that Mr. Fatehul Mulk (the respondent No. 5) may be granted seniority in his new equivalent post like others from the date of his original appointment by lateral entry in the Foreign Affairs Group with consequential benefits and the recommendation was approved by the Prime Minister on 6‑12‑1986. It was in the above context that the respondent No. 5 was allowed seniority with effect from the date of his initial appointment into the Federal Government service viz. 5‑12‑1976 and he was placed above the appellant in the seniority list issued in the year 1988. Thus the respondent No. 5 was rightly placed above the appellant in the seniority list issuer in the year 1988. The cases relied upon by the learned counsel for the appellant viz. 1986 PLC (C.S.) at pages 23 and 690 and PLD 1990 SC 1013 have no relevancy to the facts of this case. In the first case reported at page 23 in 1986 PLC (C.S.) (Fazal Karim Chaudhri v. Province of Punjab and others), the question involved was of seniority on change of cadre on one's request, which is not the case here. In the other case reported at page 690 (Mukhtar Ahmad and others v. Government of the Punjab and others), the question considered was the seniority of earlier selected of Public Service Commission vis‑a‑vis those selected later, and that is not the case here. In the Supreme Court case cited as PLD 1990 SC 1013 (Jahangir Mirza v. Government of Pakistan), the question of seniority was agitated in the case of induction of Army personnel in the civil service and that is totally irrelevant to the facts of this case.
8. For the reasons recorded above, the appellant has no case to challenge the seniority granted to respondent No. 5 by the competent Authority and in accordance with law, and there is no merit in his appeal and it is dismissed as such, with no order as to costs.
A.A./768/Sr.F. Appeal dismissed.