ZAKRIA KHAN BABAR Versus GOVERNMENT OF PAKISTAN

CH. HASAN NAWAZ (MEMBER). ‑;‑We are concerned in this judgment with the disposal of three appeals under section 4 of the Service Tribunals Act, 1973 between the same parties and giving rise to identical questions of law and fact.

2. Mr. Zakria Khan Babar, now Deputy Director, Federal Investigation Agency (B‑18), is the appellant whereas Government of Pakistan through the Secretary Establishment Division, Secretary Ministry of Interior, Director General, Federal Investigation Agency and Ch. Khadim Hussain, Deputy Director, FIA are respectively respondents Nos. 1 to 4 in all the cases.

3. In Appeals Nos. 149(L)/1988 filed on 12‑6‑1988 and 308(L)/88 instituted oil 27‑9‑1988, M/s. Ejaz Elahi Rana, S.M. Shujat AIL Muhammad Ajmal, Shahryar Mughal and Fazal Muhammad Chaudhry, now in service with the Agency as Deputy Directors, have been impleaded as respondents Nos. 5 to 9 respectively. These respondents were promoted as Deputy Directors (B‑18) by order dated 28‑4‑1988, with the exception of Mr. Fazal Muhammad Chaudhry respondent No. 9 whose case for promotion was deferred because of the pendency of a departmental inquiry against him. The prayer against them was that (a) the order of their promotion dated 28‑4‑1988 may be set aside; (b) that the appellant may be declared as senior to them on account of having been recruited as Assistant Director (B‑17) with effect from 1‑2‑1977 and (c) the Director General (respondent No. 3) may be directed to consider the appellant for promotion as Deputy Director (B‑18) with effect from the date these respondents were promoted.

4. Appeals Nos. 149(L)/88 and 308(L)/88 have become infructuous because of subsequent developments in so far as respondents Nos. 5 to 9 are concerned. As we ‑see from the pleadings of respondents Nos. 1 to 3 filed in Appeal No. 308(L) of 1988, seniority has been given to the appellant as Assistant Director (B‑17) with effect from 1‑2‑1977 on the advice of the' Establishment Division tendered through O.M. dated 20‑5‑1989. Seniority list Of Assistant Directors (B‑17) has also been accordingly revised and the appellant has been placed senior to respondents Nos. 5 to 9 with reference to his date of appointment on 1‑2‑1977. Respondents Nos. 5 to 9 were appointed ,~ Assistant Directors on different dates in the month of June,, 1978.

5. The appellant was promoted as Deputy Director (B‑18) alongwith Ch. Khadim Hussain respondent No.4 and Mr. Fazal Muhammad Chaudhry respondent No. 9 by notification dated 5‑12‑1989. After this promotion, he was given presumptive seniority as Deputy Director with respondents Nos. 5 to 9 in accordance with their seniority as Assistant Directors alongwith benefit of pay fixation under F.R. 26(c) with effect from 28‑4‑1988, as borne out by O.M. dated 20‑3‑1991. He was consequently shown senior to these respondents in the seniority list of Deputy Directors circulated on 2‑5‑1991. The result is. That dispute now remains only between the' appellant and Ch. Khadim Hussain respondent No, 4 in all the three appeals, and we propose to make an address to the facts only in so far as they relate to them.

6. The appellant was appointed as Assistant Director (B‑17) in the .Federal Investigation Agency with the following notification on 9‑2‑1977:

"Government of Pakistan

Ministry of Interior, States and

Frontier Regions (Interior Division)

Islamabad the 9th February, 1977.

NOTIFICATION

No. 3/72/76‑ FIA‑II. Mr. Zakria Khan Babar, Administrative Officer, Grade‑16, Malaria Control Programme, Health Department, Government of Balochistan is, on transfer, appointed as Assistant Director, Grade‑17, in the Federal Investigation Agency, Headquarters at Islamabad with effect from 1st February, 1977 until further orders. He assumed charge of the post on 1st February, 1977 (F.N,).

(Sd.)

(Ghulam Mustafa)

Section Officer"

7. After the enforcement of Martial Law in the year 1977, the Government decided to review all cases of promotion and appointment made on political considerations during the period from 1‑1‑1972 to 5‑7‑1977. This exercise was carried out under section 12A of the Civil Servants Act, 1973 read with rule 4 of the Federal Public Service Commission (Functions) Rules, 1978, under which the Commission was empowered to test the civil servants appointed or promoted at any time between 1‑1‑1972 and 5‑7‑1977 and make a report to the President on whether they were fit to hold the post to which they had been appointed or promoted. The requisite test was given to the appellant by the Commission and he was declared suitable for retention in the post to which he had been originally appointed on 1‑2‑1977.

8. On 12‑12‑1982, a tentative seniority list of directly recruited Assistant Directors (B‑17) was issued, where the appellant was shown junior to Mr. Khadim Hussain respondent No. 4 whose date of appointment was mentioned as 27‑8‑1975. Objections were invited against this list to be filed by 31‑12‑‑1982. On 15‑12‑1982, the appellant filed a representation against this list claiming seniority over respondent No. 4, about whom it was alleged that he had been recruited on 27‑8‑1975 only in Grade‑16 and that he came on to Grade‑17 for the first time on 20‑7‑1981 on promotion. Another, allegation was that he belongs to legal cadre and that his name should not have been mentioned in the seniority list which was in respect of Assistant Directors of Investigation Cadre. It was prayed that his name be removed from the seniority list to safeguard the rights of directly recruited Assistant Directors of Investigation Cadre.

9. He was informed by the Director‑General's Office through letters dated 6‑2‑1983 and 14‑2‑1984 that the matter regarding his seniority was under consideration in consultation with the Establishment Division and that he will be informed of the seniority position in the event of a final decision. However, neither the question of appellant's seniority over respondent No. 4, nor that of the latter's right to be shown in the seniority list of Investigation Cadre could be finally decided and the matter went through different developments as would appear from the following facts.

10. Ch. Khadim Hussain respondent No. 4 was appointed as Assistant Director (Legal) for the first time through Notification No. A/282/1548/E, dated 29‑8‑1975 where it was mentioned that he was being appointed in the FIA on deputation. Since his grade had not been mentioned in the said notification, it was superseded by a subsequent notification of 8‑12‑1975 where it was mentioned that he had been appointed as Assistant Director (Legal) in BPS‑16 on transfer on deputation. On this notification it was pointed out by the Ministry of Religious Affairs that the appellant did not hold any lien and that he severed all connections with that Ministry in consequence of his appointment in the FIA. Eventually, he was appointed as Assistant Director (Legal) with the following Notification on 12‑3‑1976:

"No. A/282/Admn‑1/76

Office of the Director‑General

Federal Investigation Agency

G‑7/2, Islamabad.

Dated the 12th Mapch,1976.

NOTIFICATION

In pursuance of Section Officer's Government of Pakistan Ministry of Religious Affairs, Islamabad No. F.7(115)74‑Admn., dated 7th January, 1976. Mr. Khadim Hussain, Field Officer is appointed as Assistant Director (Legal) Group in this Organisation on 27‑8‑1975 (F.N.) on purely temporary and Ad hoc basis and is posted in the office of Dy. Director/FIA, Multan Circle-II, until further orders.

He will be governed by Federal Government Regulations regarding his pay and allowances as for he is in F.I.A.

This supersedes this office Notification No. A/282/21429‑27/E, dated the 2nd December, 1976.

(Sd.)

(Muhammad Rafiq)

Dy. Director/Director‑General"

11. Subsequently, on introduction of section 12‑A of the Civil Servants Act, 1973, his appointment was reviewed and he was found suitable by the F.P.S.C. for retention in the FIA as Assistant Director (Legal) in Grade‑16 and the competent authority's approval was accordingly conveyed through Establishment Division's O.M. dated 21‑11‑1979.

12. He represented against his appointment in Grade‑16 instead of Grade‑17 to Secretary, Interior Division which was forwarded to the Establishment Division. No order was, however, passed on this representation and he was ultimately promoted as Assistant Director in Grade‑17 by order dated 20‑7‑1981 with effect from 15‑7‑1981. On 23‑7‑1981, he made a representation to the Secretary, Establishment Division where it was prayed that on reconsideration, he "may be treated a case of direct appointment instead of promotion and may be approved for appointment in Grade‑17" to take his seniority in that grade with effect from the date of his original appointment on 27‑8‑1975. On having been informed through Interior, Division's Memorandum dated 18‑10‑1981 that his representation had been rejected he came in an Appeal (No. 113(R) of 1981) to the Tribunal under section 4 of the Service Tribunals Act, 1973, impleading only the Secretary, Establishment Division and the Director‑General, FIA, with the prayer for a direction to "(a) amend the order dated 15‑7‑1981 to notify the appointment of the appellant as Assistant Director in Grade‑17 with effect from 27‑8‑1975, (b) grant seniority to him in Grade‑17 from 27‑8‑1975; and (c) adjust his pay by granting him arrears due to difference in pay scales of Grade‑16 and 17 from the same date."

13. This appeal was disposed of by judgment dated 12‑10‑1982 with the following observations:

3. Though the appointment of the appellant made initially to serve in Grade‑17 post and drawing the pay of Grade‑16 post, was illegal, nevertheless, the appellant continued to serve in a Grade‑17 post for no fault of his. Under FR‑31, a person appointed to officiate in a post has to draw the pay of that, though by a special order under FR‑35, his pay can be curtailed. The learned counsel for State on the strength of FR‑35 contends that from the date of appointment in Grade‑16, namely 27‑8‑1975, the appellant can be given the minimum of Grade‑17 post, but that he cannot be given increments or a regular Grade‑17 post from a date earlier than the date on which a formal order of his appointment in Grade‑17 was made. We see no substance in this contention. The appellant had been continuously performing the duties of a Grade‑17 officer, but was drawing the pay in Grade‑16, though the appointment was irregular. There is no formal order of curtailing his pay in Grade‑17, as provided for under FR‑35. There is neither a general o, den nor a special order in this respect, we are, therefore, of the opinion that the appellant shall be entitled to draw the pay of Grade‑17 together with the increments as raised from time to time, with effect from the date of his appointment.

4. The appellant in his appeal also claimed seniority, but at the time of arguments he contended that his was an isolated post and his interest does not conflict with any other officer. Anyhow, since other Grade‑17 Officers have not been made party, we do not pass any order with regard to appellant's seniority vis‑a‑vis others.

5. The appeal is accepted to the extent indicated above. Parties to bear their own costs."

14. After the judgment had been announced, the Ministry of Interior addressed the following u.o. note to Establishment Division:

"Subject:‑ Representation for promotion to Grade‑17 with effect from the date of appointment (27‑8‑1975)‑‑ Case of Mr Khadim Hussain Assistant Director (Legal) F.I.A .

Reference Establishment Division's u.o. note No. 32/2/80‑C‑III(B), dated 5‑10‑1981.

2. Mr. Khadim Hussain has since filed an appeal (No. 113(R)/1981) with the Service Tribunal, Islamabad. The Tribunal has accepted his plea in the order passed by them on 12th October, 1982, a copy of which has been sent by the Tribunal's office to the Establishment Division vide No. 138, dated 14‑10‑1982.

3. On the basis of the said decision of the Tribunal, Mr. Khadim Hussain has assumed charge as Assistant Director (Grade‑17), with effect from 27th August, 1975 i.e. the date of his initial appointment as Assistant Director (Grade‑16). The FIA HQ have forwarded the charge assumption report for issue of a notification. Establishment Division are requested to advise whether a notification, as above, be issued by this Ministry."

15. The Establishment Division's advice conveyed through the following u.o. dated, 3‑11‑1982 was to the following effect:

"Reference Ministry of Interior's u.o. No. 3/90/76‑FIA‑II, dated the 20th October, 1982 on the above‑noted subject. In this connection it is stated that unless an appeal is intended to be filed in the Supreme Court by the F.IA. against the judgment of the Federal Service Tribunal in the case of Mr. Khadim Hussain, Assistant Director (Legal) F.IA., the order of the Tribunal may be implemented."

16. Thereafter, on 11‑11‑1982 the Ministry of Interior issued the following notification:

"TO BE PUBLISHED IN THE GAZETTE OF PAKISTAN PART‑I

Government of Pakistan

Ministry of Interior

Islamabad the 11th November, 1982.

NOTIFICATION

No. 3/90/76‑FIA‑II. In partial modification of this Ministry's Notification No. 3/90/76‑FIA‑II, dated 20th July, 1981, Mr. Khadim Hussain, Js appointed as Assistant Director (Grade‑17), Federal Investigation Agency, `Islamabad, on regular temporary basis, with effect from 27th August, 1975 and until further orders.

(Sd.)

(Ghulam Mustafa)

Section Officer"

17. It appears from the record that on the strength of this notification, respondent No. 4 started making efforts to contrive his promotion as Deputy Director in Grade‑18 with effect from 20‑8‑1980, the date on which he had completed five years service in Grade‑17. However, the result was quite the reverse, in that the earlier notification of i1‑11‑1982 was cancelled by the Ministry of Interior through notification dated 7‑3‑1985 which makes the following reading:

"Government of Pakistan

Ministry of Interior

Islamabad, the 7th March, 1985.

NOTIFICATION

No. 3/90/76‑FIA‑II. This Ministry's Notification No. 3/90/76‑FIA‑II, dated 11th November, 1982 (which was in partial modification of this Ministry's notification of even number dated 20th July, 1961) appointing Mr. Khadim Hussain, as Assistant Director (B‑17) on regular temporary basis, with effect from 27th August, 1975, is hereby cancelled.

(Sd.)

(Ghulam Mustafa)

Section Officer"

18. After his representation against this notification failed to produce any result, respondent No. 4 came to the Tribunal with another Appeal (No.147(R)/85) on 11‑6‑1985. There again, only the Establishment Secretary and the Secretary, Interior Division were impleaded as respondents. The prayer was that notification dated 7‑3‑1985 may be set aside as illegal with an order of restoration of notification of.ll‑11‑1982.

19. On dismissal of this appeal by judgment dated 26‑4‑1989, respondent No. 4 filed a petition before the Supreme Court for leave to appeal against it. The Secretaries of Establishment Division and Interior Division (respondent Nos. 1 and 2) appeared through their standing counsel and filed a written statement where it was stated that they have decided "not to contest this petition for special leave to appeal filed by Khadim Hussain petitioner". It further said. that the "respondents have decided to concede to the stand taken by him". It was requested that petitioner's claim may be accepted.

20. On the respondents' pleadings, the following order was passed by the Supreme Court on 29‑10‑1989:

" Muhammad Haleem, CJ.‑ ‑Upon hearing the petitioner we convert this petition into an appeal, and allow it in terms of the concession by the counsel for the respondents in his written application that the respondents "have decided to concede to the stand taken by the petitioner". In view of this concession, the impugned order is set aside.

The petitioners in Civil Miscellaneous Petition No. 321‑R of 1989 and in an unnumbered civil miscellaneous petition, have prayed to be impleaded as parties in the main petition, as they contend that their right would be affected by the concession of the respondents. Since they were not parties in the appeal before the Service Tribunal, they have no locus standi to challenge the concession at this stage. Accordingly, the petitions are rejected."

21. Thereafter, by Notification No. 3/41/86‑FIA‑II, dated 5‑12‑1989 respondent No. 4 was promoted as Deputy Director (B‑18) "with immediate effect and until further orders" alongwith Mr. Zakria Khan Babar appellant, Fazal Muhammad Chaudhry respondent No. 9 and one Afzal‑ur‑Rehman, with the approval of the competent authority conveyed through Establishment Division's O.M. No. 32/8/89‑CP.4, dated 27‑11‑1989.

22. The appellant addressed an appeal to the Prime Minister on 28‑12‑1989 against respondent No. 4's promotion as Deputy Director and his seniority, followed by various reminders. On 4‑2‑1990 a tentative seniority list of Deputy Directors was issued where respondent No. 4 was mentioned against serial No. 1 above the appellant's name. He filed objections against this list on 24‑2‑1990. Ultimately, on 2‑5‑1991 final seniority list of Deputy Directors Investigation (B‑18) was issued by the FIA, wherein respondent No. 4 was shown senior to the appellant. He addressed another representation to the Prime Minister on 1‑6‑1991 against this seniority list.

23. When it failed to bear any fruit, he filed Appeal No. 182(L) of 1991 on 14‑9‑1991 with the prayers that (a) respondent No. 4's name may be deleted from the seniority list of 2‑5‑1991 or in the alternative, the appellant may be shown senior to him and (b) respondent No. 1 may be directed to consider the appellant for promotion to B‑19 with effect from 1‑2‑1989, the date on which he completed the prescribed period in Grade‑17 and Grade‑18. Relief sought in Appeal No. 149(L)/88 is more or less the same.

24. This is the gist of the appellant's case: respondent No. 4 was appointed as Assistant Director in Grade‑16 (Legal Group) in the FIA on 27‑6‑1975 on purely temporary and ad hoc basis on transfer from the Ministry of Religious Affairs, by virtue of Notification dated 12‑3‑1976. He could not legally be brought into the investigation cadre and in any case there is absolutely nothing whatever on the record to show that he was allowed to change his cadre by the competent authority in accordance with law. He was found suitable for retention by the F.P.S.C. as Assistant Director (Legal) in Grade‑16 on review under section 12‑A of the Civil Servants Act, 1973 and the competent authority's necessary approval was conveyed through Establishment Division's O.M. dated 21‑11‑1979. It is on account of these facts that notification dated 11‑11‑1982 appointing him an Assistant Director Grade‑17 in the FIA "on regular temporary basis with effect from 27‑8‑1975 and until further orders" LS illegal. Consequently, the appearance of his name in the seniority list of investigation cadre in any capacity is also illegal and ineffective against the appellant's rights.

25. As for the pleadings of respondents Nos. 1 to 3, they have supported the appellant's case in all its material particulars. Seniority as Assistant Director (Investigation) in Grade‑17 has already been acknowledged and granted to him with effect from 1‑2‑1977. It can be easily spelled out of their pleadings that their case is that notification dated 11‑11‑1982 was without justification and illegal and that, in so far as they are concerned, it was cancelled on the advice of the Establishment Division by notification dated 7‑3‑1985. About respondent No. 4's promotion by notification dated 5‑12‑1989 and consequential presence of his name at the top of seniority list of Deputy Directors (Investigation) circulated on 2‑5‑1992, over that of the appellant, the excuse is that this was done on account of the Supreme Court's order dated 29‑10‑1989 in respondent No. 4's appeal. They have gone a step further to say that the concession made by the standing counsel of respondents Nos. 1 and 2 in his written statement filed before the Supreme Court was at the instance and under written instructions of the then Minister for Interior, which were motivated by political considerations.

26. Respondent No. 4's case is that he was appointed as Assistant Director (B‑17) on regular basis w.e.f. 27‑8‑1975 in FIA vide notification dated 11‑11‑1982 and that the subsequent notification of the Interior Division dated 7‑3‑1985 "stands to have been declared illegal, without jurisdiction and of no legal effect" by the Supreme Court of Pakistan in his appeal filed against the Tribunal's judgment dated 20‑4‑1989, which "also stands set aside". The effect of Supreme Court's order is that the original notification of 11‑11‑1982 "stands restored with all the rights accrued" in. his favour. There is no provision under which the Federal Service Tribunal can re‑examine or hear a matter/issue once decided by the Supreme Court of Pakistan". Since no petition was made within seven days for review of Supreme Court's judgment, it is "now binding and time‑barred".

27. These pleadings in view, the first point which requires determination is regarding the effect of Supreme Court's order dated 29‑10‑1989 and whether it is binding on the appellant. There is no doubt about the fact that the Supreme Court's judgment was the result of written statement filed by the standing counsel on behalf of Establishment and Interior Divisions, where respondent No. 4's claim was accepted. Now they have pleaded that this concession was made in accordance with "handwritten notes" of the then Minister for Interior and that it was a "political motivated concession". It appears from their pleadings that the Minister for Interior was not competent to give directions to accept respondent No. 4's claim. Further, we do not find any thing to show that these instructions were imparted after having consulted the Justice Division in accordance with requirements of Rule 14 of the Rules of Business. However, we feel that these considerations are beside the point. What is material is the fact that the standing counsel of respondents Nos. 1 and 2 accepted respondent ‑No. 4's claim in his written statement filed before the Supreme Court, whose order was the automatic result of this concession.

28‑ We are, however, respectfully of the view that legality or otherwise of notification dated 11‑11‑1982 can still be examined, in spite of Supreme Court's judgment dated 29‑10‑1989. The main reason in support is that the appellant was not before the Supreme Court as a party in respondent No. 4's appeal and the judgment is not binding against his rights. It is. worthwhile to notice that he was not there even before the Tribunal. The FIA had also not been impleaded and respondent No. 4 chose to seek relief only against the Establishment and Interior Divisions. Any way, the Tribunal does not appear to have taken notice of this aspect of the matter, probably because they proposed to dismiss the appeal on merits. The question of non joinder of necessary parties does not appear to have been agitated before them. Be that as it may, the situation before the Supreme Court was different, in that respondents Nos. 1 and 2 accepted respondent No. 4's claim, and that too without consultation with the justice Division, in respect of a matter which adversely affected the vested rights of not only the appellant but of others who had been appointed as Assistant Directors (Investigation) in Grade‑17 before his promotion by notification dated 20‑7‑1981.

29. In support of this view, reliance is placed on the Supreme Court's judgment in 1y8'? SCMR 89where it was ruled that any action taken or order made adversely affecting .the interests of a person not before the Court as a party, would not be binding against him. Another authority in support is 1988 SCMR 620 where it was held in the case of Pir Syed Qurban Ali Shah that he "not being a party to the six appeals disposed of by the Service Tribunal, the same would not be binding on him and cannot in any way prejudice his rights". It was observed that "we are sure that the Service Tribunal will decide Appeal No. 40 of 1985 on its own merits and give appellant Syed Qurban Ali Shah all the opportunity to canvass his case before it".

30. We might as well, here at this stage, take notice of respondent No.4's pleadings on this point: He said that "the appellant also knowingly and intentionally did not become party in his Appeal No. 147(R)/85 before the Federal Service Tribunal" and that "he even did not request the Tribunal to become part'. In the first place, there is nothing on the record to show that the appellant slid not become a party in his appeal "knowingly and intentionally". This apart, the point is that it was respondent No. 4's duty to implead him as a party, because of the awareness that any order passed by the Tribunal will adversely affect his rights. The notification of 11‑11‑1982 had given seniority in Grade‑17 to him with retrospective effect. It was cancelled by the subsequent notification of 7‑3‑1985. Respondent No. 4 was, therefore, fully conscious of the fact that the Tribunal's decision in his appeal would adversely affect the rights of other persons in the Investigation Group who had been appointed as Assistant Directors (B‑17) before his promotion to that grade. It was thus his legally bounden duty to implead them as respondents and his appeal could be dismissed by the Tribunal simply on the ground of non joinder of necessary parties. Its decision, in their absence, could not have any effect whatever against their rights. We find absolutely no reason why he failed to implead the FIA and the officers concerned, including the appellant, in his appeal. We hold the view that under the circumstances, he has no right to say that the Supreme Court's judgment caused by the aforementioned concession is binding even against those who were not impleaded by him as respondents.

31: In this view of the matter, we now proceed to examine the notification of 11‑11‑1982, which is the basis of respondent No. 4's claim to seniority and the right to stay in the Investigation Group. It has got two features: First, he was appointed as Assistant Director (B‑17) with retrospective effect from 27‑8‑1975, which was the date of his original appointment in Grade‑16 with the same designation. The second is that there was no mention of whether he had been shifted from legal to Investigation Group. This aspect of the matter has assumed importance because his original appointment by order dated 12‑3‑1976 was in the legal Group.

32. The notification ostensibly proceeds from the Tribunal's judgment dated 12‑10‑1982 in respondent No. 4's Appeal No. 183‑(R)/1981. On its communication, the Ministry of Interior informed, the Establishment Division by u.o. dated 20‑10‑1982 that the Tribunal had accepted the appeal and he had assumed charge as Assistant Director (B‑17) with effect from 27‑8‑1975 on the basis of its decision. Advice was sought on whether a notification should accordingly be issued by the Ministry of Introit. The Establishment Division advised through u.o. dated 3‑11‑1982 that if no appeal was intended to be filed in the Supreme Court by the FIA against the Tribunal's judgment, it may be implemented. After this advice, the notification of 11‑11‑1982 was issued.

33. A few things are worth notice: One is that the Ministry of Interior interpreted the Tribunal's judgment to suggest that respondent No. 4' s appeal had been accepted. Second, the F1A had already allowed him to assume charge as Assistant Director in Grade‑17 w.e.f. the date of his initial appointment on 27‑8‑1975. The third is that the Establishment Division advised, apparently either without reading the judgment or understanding its import, that it should be implemented in case no appeal was intended to be filed. Fourth, neither the Ministry of Interior nor the Establishment Division appear to have consulted the Justice Division before its issuance.

34. Any way, one wonders what was there in the Tribunal's judgment to mislead the Interior Division to the issuance of an order so radical and drastic in nature. We fail to understand which part of this judgment gives an indication that respondent No. 4's plea regarding seniority had been accepted. Neither the FIA, nor for that matter the Interior and Establishment Divisions appear to have taken any pains to understand what in reality was granted by the judgment. Out of three prayers made by him, only the last regarding adjustment of pay with arrears in Grade‑17 was granted from 27‑8‑1975. The other prayers regarding his appointment as Assistant Director in Grade‑17 w.e.f. 27‑8‑1975 by amending the notification of promotion dated 20‑7‑1981, and that of seniority in that grade from 27‑8‑1975, were not allowed by the Tribunal. No order was passed regarding seniority and it was rather observed that his appointment "made initially to serve in Grade‑17 post and draw pay of Grade‑16 post, was illegal". It was observed that his appointment was made in Grade‑16 by the Director‑General, FIA because he was not competent to appoint him in Grade‑17 and that it could be made only by the Prime Minister, for which a proposal had to be sent through the Establishment Secretary. Be it so, there was hardly any justification for making this judgment an excuse for the passage of order dated 11‑11‑1982, which seems to have created all this trouble and confusion in the Agency. We hold that it was issued rather in contravention of the judgment which had refused to grant his prayers regarding seniority and appointment in Grade 17 w.e.f. 27-8-1975.

35. We might examine the notification independently of the aforementioned consideration. Section 2(2) of the Civil Servants Act, 1973 provides that for the purpose of this Act, an appointment, whether by promotion or otherwise, shall be deemed to have been made on regular basis if it is made in the prescribed manner. Section 5 of the Act lays down that appointments to an all Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation including any civil post connected with defence, shall be made is the prescribed manner by the President or by a person authorised by the President. In the present case, it is no body's position that his appointment as assistant Director in Grade‑17 on 27‑8‑1975 was made by the competent authority and in the prescribed manner. It could be made only by the Prime Minister and that too on the recommendation of the Public Service Commission. The Director‑General was by no mean competent to appoint him in grade‑ 17 as Assistant Director; and in reality it is an admitted fact that he was appointed in Grade‑16 exactly because of that reason. It .is beyond our understanding as to how he could be appointed in Grade‑17 with retrospective effect by an executive order. From 27‑8‑1975 to the date of his promotion on 20‑7‑1981, he virtually remained in Grade-16 Assistant Director in the legal group. The status of Grade‑17, officer could not possible legally be bestowed upon him with retrospective effect for the aforementioned period even by the competent authority. By no means could he be legally made what he has never been, during the aforementioned period.

36. The aforementioned observation's are based on the assumption that the notification in dispute was issued with the approval of the competent authority. However, we do not find anything on the record to show that the requisite approval was obtained. Even if it had been so obtained, his appointment in Grade‑17 could not legally be made from a prior date. Reliance in support can be placed on 1990 SCMR 1216 where it was held by the Supreme Court that there is no principle whereby the Executive Authority can be held invested in the matter of direct appointment to make the appointment retrospective from a date earlier to the selection in accordance with the law. No such law was shown in that case whereby such a retrospective regularizations, of the direct recruitment could be ordered by the Executive authority The same principle was enunciated by the Supreme Court in 1990 SCMR 1623 though in the context of different circumstances.

37.there is another important factor to be taken into consideration after necessary exercise in accordance with the requirements of section 12‑A of the Civil Servants Act, 1973, respondent No. 4 was found suitable for retention as Assistant Director (Grade‑16) in the Legal Group. Necessary approval of the competent authority for such retention was conveyed to the Agency on 24‑11‑1979. This was his first regular appointment in Grade‑16 and that too in ‑the Legal Group. This being so, there could be no basis for ante dating his appointment in Grade‑16 with effect from 27‑8‑1975 and the notification of 11‑11‑1982 can be regarded at the most only an attempt to produce a result which was impossible and which could not have the support of any rule or law whatsoever.

38. Another aspect also deserves notice. The effect of notification dated 11‑11‑1982 was that respondent No. 4 was taken to have been recruited in the Agency as Assistant Director in Grade‑17 right from the very inception, and it conferred upon him a status which in actual fact had never been there, to the detriment of all others who were appointed as Assistant Directors in Grade‑17 (Investigation) on different dates during the period from 27‑8‑1975 to 20‑7‑1981. The result was that certain new rights were created and those vesting in other persons including the appellant were taken away by an order which did not have the approval of the competent authority. No amount of mind straining can make us understand how this could possibly be done, even by the Authority competent to make appointments in Grade‑17 (Investigation) by an executive order against all cannons of law.

39. Now something about the other feature regarding omission of the 1 group in the notification. There is no doubt about the fact that respondent No.4 was initially appointed in the legal group by order dated 12-3‑1976. There is no denial of the fact that Investigation Group is distinct from Legal Group under rule 12 of the FIA (Appointment, Promotion and Transfer) Rules, 1975. It is an interesting circumstance, that no spec order for a change of group has ever been passed by the competent authority. This is not even respondent No.4's assertion that any such specific order was so passed. If this be the case, as it is, we have no means to discover how his name went in the seniority list of Assistant Directors of Investigation Group. There is nothing in the pleadings of respondents Nos. 1 to 3 either, to throw light on this aspect of the matter.

40. It is equally enigmatic how he could be promoted as Deputy Director (B‑18) in ‑ the Investigation Group by order dated 5‑12‑1989 and then subsequently mentioned in the seniority list of Deputy Directors of that group circulated by order dated 2‑5‑1991. Rule 12 of the Rules provides that these groups were constituted and posts in the FIA were placed in them for the purpose of promotion, direct appointment and transfer. The goal to be achieved was smooth administration of the Agency. Rule 13(1) provides that appointment by promotion shall ordinarily be made within the groups mentioned in rule 12 by promotion of officers. It is clear from these provisions that an officer initially recruited for a particular cadre, could not change for another, and much less so without the approval and orders of the competent authority, which are admittedly not there in the present case.

41. The provisions of section 9(1) of the Civil Servants Act, 1973 are also in point. It says that a civil servant possessing such minimum qualifications as may be prescribed, shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs. Although the implied emphasis is on reservation for departmental promotion, the word "cadre" is also relevant. Under these provisions, respondent No. 4 who initially belonged to the Legal Group, which is the same as cadre, could not be promoted in a different cadre.

42. We propose to see the matter regarding change of group from another point of view. The best for respondent No. 4 is to assume that his contention regarding binding nature of the Supreme Court's order dated 20‑10‑1989 is correct. He says that the notification in dispute stood restored on the strength of the Supreme Court's judgment. The result would be that we have to take it as it stands and nothing which is not specifically mentioned, can now be introduced to it. We have already noticed that it is silent with regard to his group. This being so, we cannot read something in it which is not there. Even the Supreme Court's judgment does not authorise us to infer that it had the effect of changing his group. He will, therefore, be deemed to have remained in the Legal Group, in the absence of a specific order to that effect, irrespective of the notification. He could not thus be treated to have belonged to the Investigation Group at the time of his promotion as Deputy Director on 5‑12‑1989.

43. Without intending to minimize the weight of abovementioned arguments, we might say that the most effective consideration in support of the infirmity and hollowness of respondent No. 4's case becomes available from his own pleadings. They are normally a collection of fallacious contentions and factually incorrect statements. In para‑2 of the written statement he said that "the post of Assistant Director is in BPS‑17 but the respondent was appointed in Grade‑16 illegally in violation of the rules because direct appointment cannot be made in any grade except the grade in which the post is sanctioned", and that "secondly the FIA (Appointment, Promotion and Transfer) Rules, 1975 do not contain recruitment rule of any other post likely Assistant Director/Legal etc."

44. These assertions can hardly be susceptible of any comment. It is extremely difficult to understand what exactly is intended to be conveyed by saying that his appointment in Grade‑16 was illegal. He was appointed as Assistant Director Legal in Grade‑16 by the Director‑General, and he not only accepted this appointment, but has also been drawing the emoluments of the post. Strange enough that he now turns round to say that the appointment was in violation of the rules. Then, the second assertion is not properly worded and apparently does not convey any sense. His initial appointment in Grade‑16, was the one which brought him to the Agency. It is equally strange that by these averments he is striking down the very basis of his existence in the Organisation. Further, as he himself says, if his appointment in Grade‑16 was illegal and in violation of rules, how can his seniority be reckoned from 27‑8‑1975. That exactly is why we say that it should be counted from the date of his promotion to BPS‑17 on 20‑7‑1981, and that too only in the legal group.

45. Another assertion is equally worth mentioning. He says that "for the purpose of direct appointment, there is only provision of direct appointment as Assistant Director BPS‑17 against which he was actually appointed". Here again, it hardly deserves any comment. It is beyond at least our understanding as to how he can be deemed to have been appointed in Grade‑17 right from 27‑8‑1975, merely because the appointment rules cater only for direct appointment in that grade.

46. In para. 3 he pleaded as follows: "His appointment made on 27‑8‑1975 was declared null and void under section 12A of the Civil Servants Act and his service was reviewed by the Federal Public Service Commission under rule 4 of the FPSC (Function) Rules, 1978 in accordance with the Rule 19 read with Schedule‑III of FIA (Appointment, Promotion and Transfer) Rules, 1975 and thus he was approved by the FPSC and the competent authority w.e.f. 27‑8‑1975 as Assistant Director BPS‑17 on regular basis-----" But this is factually incorrect because, as already mentioned, his retention was approved by the competent Authority in accordance with the advice of the FPSC not in Grade‑17 but only in Grade‑16 as Assistant Director Legal. From what follows the aforementioned averments, he seems to have contended that this approval, though factually in Grade‑16 (Legal), should by fiction be understood to have been made in Grade‑17 for the same reason, namely that the rules do not contain any provision for appointment in Grade‑16. In para. 2 he has said, exactly for this reason, that his initial appointment was illegal. Although he appears to have avoided the use of this expression in the case of competent Authority's approval dated 21‑11‑1979, there is no reason why he should not, y the same token, be taken to have so suggested. Now if this approval be also eliminated as illegal, nothing remains in his case to be used as a legal basis for his retention in the Agency.

47. For the reasons mentioned above, we hold that notification dated 11‑11‑1982 suffers from rank illegality, is ab initio void and of no legal effect whatever; that respondent No. 4 still belongs to the Legal Group of the Agency; that his appointment was regularised by the competent Authority as Assistant Director of Legal Group in Grade‑16 on 21‑11‑1979; that he was promoted to grade 17 for the first time on 20‑7‑1981 and that his promotion as Deputy Director in the Investigation Group by order dated 5‑12‑1989 and consequential placement in the seniority list of Deputy Directors of that group is without lawful authority and ineffective against the rights of the appellant.

48. A few words about the objection regarding limitation before leave of the matter is taken. Respondent No. 4's averment is that the Appellant "filed representation dated 6‑11‑1982 followed by reminder dated 17‑2‑1988" and that "he was required to file an appeal before the Tribunal after expiry of 90 days".

It is contended that Appeal No. 149(L)/88 was filed on 11‑6‑1988 after the expiry of six years and that it is "badly time‑barred".

49. Whether an appeal is time‑barred depends mainly upon the circumstances of each case. We have already held that the notification in dispute was void ab initio and 'of no legal effect. It is settled principle of law that limitation does not run against a void order. If ever this principle can justifiably be pressed into service, it is in the present case where the notification will in fact be deemed to have been never been issued. This apart, the law of limitation has been placed on the Statute Book to disregard only those who sleep over their rights and are grossly negligent in the pursuit of their remedies. The underlying idea is that the Courts are not there to sit and wait for an aggrieved person, with a could not careless attitude, to come with his grievance at a time of his own choice. Its purpose is certainly not to enable us to remain on the look out for an opportunity to non‑suit a vigilant party.

50. In the present case, facts having a bearing on the question of limitation have been mentioned in detail. Tentative seniority list of directly recruited Assistant Directors was issued on 12‑12‑1982. The appellant filed objections against the list on 15‑12‑1982. Ever since that time, he has been industriously pursuing his remedy in the department. The matter regarding respondent No. 4's date of appointment in Grade‑17 and his group, somehow or the other, remained pending till 29‑10‑1989, the date of Supreme Court's judgment in his appeal. The appellant ultimately came to the Tribunal with Appeal No. 182(L)/1991 on 14‑9‑1991, after his departmental appeals against respondent No. 4's promotion as Deputy Director (B‑18) and the consequential placement of his name in the seniority list of 2‑5‑1991, proved abortive. We hold that the appeals are within time.

51. For the reasons mentioned above, all the three appeals are accepted in so far as respondent No. 4 is concerned and notification dated 11‑11‑1982 is set aside as being ab initio void and of no legal effect. Order dated 5‑12‑1989 to the extent of respondent No. 4's promotion in the Investigation Group and the consequential seniority list of 2‑5‑1991 are also set aside, with a direction that he may be shown in the seniority list of the officers of Legal Group in accordance with rules and with reference to his promotion in Grade‑17 with effect from 15‑7‑1981. It is ordered that the appellant may be considered for promotion to Grade‑19 with effect from the relevant date in accordance with law. Appeals Nos. 149(L)/1988 and 308(L)/1988 are dismissed as having become infructuous in. so far as respondents Nos. 5 to 9 are concerned. There will be no order as to costs.

A.A./775/Sr.F Order accordingly.