FEDERATION OF PAKISTAN vs MUHAMMAD NAQI KHAN And Other

M.S.H. QURAISHI, J.--In this appeal preferred by the Federation of Pakistan, leave was granted consider, inter alia, whether the Service Tribunal was competent to grant relief, to Muhammad Naqi Khan, respondent No. 1, in respect of his-claim to seniority in. Service from 26-5-1960 in view of the bar contained in` proviso (c) to subsection (1) of section 4 of the Service Tribunals Act.

2: Muhammad Naqi Khan, a permanent Assistant in the Cabinet Division since 5-4-1952, was, on the introduction of the Section Officers Scheme on 1-10-1959, considered but not selected as a Section Officer, having been placed in tutelary B--11. On his; presentation his case was reconsidered but again rejected on 26-5-1960 though 55 others were elected. He took the Section Officers Promotional Examinations held in 1967 and 1969 but Without success. However, he was appointed as a Section Officer on an ad hoc basis and he took over charge as such on 26-7-1972.

On the establishment of the Officer management Group, he was regularly appointed in that Group under para. 4 (v) of Office Memorandum No. 1/2/75-ARC, dated 27-1-1975, according to which "ad hoc Section Officers who appeared in the Promotional Examinations of 1967 and 1969 and were cleared by revising the standard in consultation with the PFSC were included in the Group -on its initial constitution". In the seniority list circulated on 18-9-1.979, he was given seniority from the date of his regular appointment, on 27-1-1975. He represented against this on 13-10-1979, claiming seniority from 1-10-1959 when the Section Officers Scheme had been introduced. Receiving no reply, he filed another representation on 30-1-1981 which was rejected on 2-2-1982. He submitted yet another representation on 10-2-1982, which, to, was rejected on 20-2-1982. He, thereupon, filed an appeal to the President on 17-3-1982 but the same was withheld on 1-6-1982 as not being competent. He then preferred an appeal before-the Service Tribunal, on 13-6-1982, claiming seniority as Section' Officer with effect from 1-10-159 with full consequential benefits from that date:, The Federation contested the appeal on the grounds, inter alia, of its incompetence being -hit by the provisions of section 8 of the Civil Servants Act, 1973, and proviso (b) to subsection (1) of section 4 of the Service Tribunals Act.. The Tribunal, however, without adverting to the legal objections, proceeded to examine the A. C. R's of the respondent and came to the view that he had suffered due to un communicated adverse remarks in his A.C.R's, that in respect of such remarks he had been "condemned unheard" and that as a consequence he had "suffered grievously". The Tribunal, therefore, directed that the respondent be given seniority as a Section Officer with effect from 26- 5-1960, that is, the date when other Assistants had been promoted as a result of re-consideration.

This was, however, without conferment of financial benefits.

4. Obviously the Tribunal failed to apply its mind to- the legal objections raised before it in regard to its jurisdiction and the competency of the appeal. By virtue of proviso (c) to subsection (1) of section 4 of the Service Tribunals Act, the jurisdiction of-the Tribunal did not extend to an order or decision of a departmental authority made at any the before the 1st July, 1969. The Tribunal, therefore, was no competent to interfere with the decision or the effect of such decision taken by the departmental authority prior to the said date. Moreover, since under subsection (4) of section 8 of the Civil Servants Act, "seniority in a post service or cadre to Which a civil servant is promoted shall taken effect from the date of regular appointment to that post", the seniority of the respondent could not be taken back to an earlier date- without antedating his regular' promotion as- a Section Officer. This the Tribunal could not do as it has no jurisdiction in view of the provision of proviso (b) to section 4 of the Service Tribunal Act, to interfere with an order or decision of a departmental authority determining fitness or otherwise of a person to be -appointed to or hold a~ particular post or to be promoted to a higher post or grade.

5. The respondent, who appeared in person before this Court, submitted that what he had sought from- the Tribunal .Was .Not promotion from an earlier date but only his placement in seniority over his juniors to which he was, according to him, entitled under proviso (a) to para. B (i) of the General Principles of Seniority, appearing at page 153 of the Esta code, 1983 Edition. The proviso reads: "(a) an officer eligible for promotion who is inadvertently 'omitted from consideration in the original reference and is superseded: when he is subsequently considered and approved for promotion, he will take his seniority with the original batch."

We find no substance in the submission inasmuch as it is not the case that the respondent had been inadvertently omitted from consideration in the original reference. He, 'in fact, had been considered but not found suitable. He thus stood superseded more than once in the matter of his selection. His case was covered by clause (i) of said para. According to which. "Officers who are approved by the: Selection. Board D,P.C: for promotion to the higher grade on an earlier date shall- rank senior to those who are approved on a later date".

6. It is thus clear that the Tribunal had acted beyond its jurisdiction in entertaining the respondent's appeal which was not competent in law and in granting relief for which it had no jurisdiction. The appeal is, therefore, allowed and the impugned judgment of the Tribunal set aside. There shall be no order as to costs.