M. TAHIR RASHEED 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 AIL 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 Us 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:‑‑

2. CUSTOMS HOUSE, KARACHI

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

4. OFFICE ORDER NO. 2918/80‑ESTT (P)

5. The following persons have been appointed as temporary Preventive Officers 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:

6. S. No.

7. Name (M/S)

8. 1.

9. Ahmad Shuja

10. 2.

11. Javed Akhtar Mughal

12. 3.

13. Badruddin Jatoi

14. 4.

15. M. Afzal Khan Magsi

16. 5.

17. Najam Hameed

18. 6.

19. Muhammad Ibraheem

20. 7.

21. Mir Ali Raza

22. 8.

23. Sardar Abdul Qayyum Khan

24. 9.

25. Rukhsana Ishrat Arbab

26. 10.

27. Habibur Rehman

28. 11.

29. Munir Ahmad

30. 12.

31. Muhammad Sohail Naqi

32. 13.

33. Muhammad Rahim Marwat

34. 14.

35. Ghazanfar Ali

36. 15.

37. Alyson Herald Alferd

38. 16.

39. Sabeeh Yousuf

40. 17.

41. Tayyab Hassan

42. 18.

43. Ali Azhar Shah

44. Date of joining

45. 21‑7‑1980

46. 21‑7‑1980

47. 8‑7‑1980

48. 17‑7‑1980

49. 12‑7‑1980

50. 12‑7‑1980

51. 22‑7‑1980

52. 10‑7‑1980

53. 9‑7‑1980

54. 14‑7‑1980

55. 12‑7‑1980

56. 9‑7-1980

57. 21‑7‑1980

58. 20‑7‑1980

59. 9‑7‑1980

60. 21‑7‑1980

61. 14‑7‑1980

62. 22‑7‑1980

63. S. No.

64. Name (M/S)

65. Date of joining

66. 19.

67. Ali Manshah

68. 21‑7‑1980

69. 20.

70. Athar Hussain Khan

71. 22‑7‑1980

72. 21.

73. Ch. Muhammad Ali

74. 12‑7‑1980

75. 22.

76. Anisa Tayyaba

77. 19‑7‑1980

78. 23.

79. Amir Shahid Ali Khan

80. 10‑7‑1980

81. 24.

82. Raja Zaki Babar

83. 22‑7‑1980

84. 25.

85. Vaqar Zahoor

86. 13‑7‑1980

87. 26.

88. M. Hanif Sabir Khan

89. 17‑7‑1980

90. 27.

91. Abdul Qayyum

92. 22‑7‑1980

93. 28.

94. Khalilur Rehman

95. 20‑7‑1980

96. 29.

97. Sajid Ali Khan

98. 22‑7‑1980

99. 30.

100. S. Qamar Abbas

101. 12‑7‑1980

102. 31.

103. 21‑7‑1980

104. 32.

105. Muhammad Iqbal‑I

106. 19‑7‑1980

107. 33.

108. Muhammad Akram Khan

109. 22‑7‑1980

110. 34.

111. Shoaib Ahmad

112. 12‑7‑1980

113. 35.

114. S. Irfanullah

115. 21‑7‑1980

116. 36.

117. Parvez Iqbal

118. 9‑7‑1980

119. 37.

120. Kanwar Khalid Ali Khan

121. 28‑7‑1980

122. 38.

123. Muhammad Khursheed Khan

124. 21‑7‑1980

125. 39.

126. Ghulam Mohiuddin Chishti

127. 19‑7‑1980

128. 40.

129. Rais Azam Khan

130. 22‑7‑1980

131. 41.

132. Muhammad Khan

133. 9‑7‑1980

134. 42.

135. S. Sohail Zaidi

136. 19‑7‑1980

137. 43.

138. Munawar Ali Saleemi

139. 17‑7‑1980

140. 44.

141. Talat Qamar

142. 16‑7‑1980

143. 45

144. Tariq Javed

145. 10-7-1980

146. 46.

147. Amir Ahmad

148. 8‑7‑1980

149. 47.

150. Rashid Ali Khan

151. 21‑7‑1980

152. 48.

153. Amjad Pervez

154. 22‑7‑1980

155. 49.

156. Amjad Mansoor

157. 19‑7‑1980

158. 50.

159. Muhammad Iqbal II

160. 12‑7‑1980

161. 51.

162. Javed Iqbal

163. 17‑7‑1980

164. 52.

165. S. Anwar Hussain

166. 9‑7‑1980

167. 53.

168. Shakirullah Khan

169. 19‑7‑1980

170. 54.

171. Ateeq Ahmad

172. 21‑7‑1980

173. 55.

174. A. Parvaiz Bazai

175. 22‑7‑1980

176. 56.

177. Muhammad Siddiq Khan AM

178. 17‑7‑1980

179. 57.

180. Mashooq Ahmad Memon

181. 16‑7‑1980

182. 58.

183. M. Tahir Rasheed

184. 9‑7‑1980

185. 59.

186. Ahmed Kabir

187. 10‑7‑1980

188. 60.

189. Tariq Mahmood

190. 19‑7‑1980

191. 61.

192. Arif Munir

193. 14‑7‑1980

194. 62.

195. Abdul Qadir Ghumro

196. 12‑7‑1980

197. 63.

198. Muhammad Farooq

199. 22‑7‑1980

200. 64.

201. Ghazanfarullah

202. 9‑7‑1980

203. 65.

204. Kaleemullah

205. 31‑7‑1980

206. 66.

207. Mir Zarar Bin Asmat

208. 12‑7‑1980

209. 67.

210. Attaullah

211. 16‑7‑1980

212. 68.

213. Kifayatullah Khan

214. 21‑7‑1980

215. 69.

216. Nihar Muhammad

217. 15‑7‑1980

218. 70.

219. Sarfarazul Hassan

220. 20‑7‑1980

221. 71

222. Shaibzar Khan

223. 2‑8‑1980

224. 72.

225. Abdul Ghaffar

226. 20‑7‑1980

227. 73.

228. Shahbaz Khan

229. 17‑7‑1980

230. 74.

231. Sarfaraz Ahmad

232. 19‑7‑1980

233. They have been medically examined by Civil Surgeon, Government of Pakistan and declared fit for Government service (list prepare d merit‑cum‑seniority) By order of Collector of Customs (Preventive).

234. (Sd.)

235. S.FA. RAZVI, for Collector of Customs

236. (Preventive)".

3. A seniority list was issued in 1985, wherein the 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 29‑3‑1990. 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 for 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)/90; and none has filed objections in Appeal No.53(K)/90.

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 (K)/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 be present to represent the Government in other cases, to render assistance 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 upto March 1951) and a judgment of this Tribunal in Appeal No. 60(x)/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 Appeals 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 Zia-ul-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 controverted 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. doted 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 and 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 case 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.

237. A.A./774/Sr.F Appeals dismissed.