MUHAMMAD ASLAM KHAN vs SECRETARY, MINISTRY OF DEFENCE And Other
This petition for special leave to appeal under Article 212 of the Constitution challenged an order of the Federal Service Tribunal dismissing the petitioner's service appeal regarding seniority and educational qualifications. The core legal questions involved whether a direct recruit could claim seniority over departmental promotees appointed earlier or in the same year under applicable service rules, and whether the petitioner possessed the requisite educational qualifications for the post. The Supreme Court held that the petitioner could not claim seniority over respondents promoted prior to his entry into service, nor over a respondent promoted in the same year based on established statutory principles of seniority. Furthermore, the Court held that the petitioner lacked the prescribed educational qualifications based on expert opinion and that rule relaxation lay within the exclusive competence of the Federal Public Service Commission. The petition was accordingly dismissed as devoid of force, and the principle was affirmed that new factual contentions regarding quota allocations cannot be raised for the first time before the apex court.
- Can a direct recruit claim seniority over departmental promotees who were promoted prior to the direct recruit's entry into service?
- Are officers promoted to a higher grade in a continuous arrangement and regular measure in a particular year ranked senior to those appointed by direct recruitment in the same year?
- Can a new factual plea requiring investigation be permitted to be raised for the first time before the Supreme Court when it was not pressed or examined before the Service Tribunal?
- Does the relaxation of prescribed educational qualifications lie within the exclusive competence of the Federal Public Service Commission?
- Article 212, Constitution of Pakistan 1973
- Section 8(3), Civil Servants Act 1973
ORDER
ZAFFAR HUSSAIN MIRZA. J.-- This petition for special leave to appeal under Article 212 of the Constitution is directed against the order, dated 10-10-1983, passed by the Federal Tribunal, Islamabad whereby the service appeal of the petitioner was dismissed.
2. Appellant was selected as Assistant Stores Officer (Grade-16) in the Civil Aviation Department of the Federal Government through the Federal Public Service Commission and joined Government service on 15th November, 1975. Mr. Abdus Salam Siddiqui, respondent No. 4 and Mr. Muhammad Hanif, respondent No. 5 were promoted to Grade-16 prior to the induction in service of the petitioner, on 26th March, 1973 and 20th July, 1974, respectively. Mr. Khalid Ahmad Khan respondent No. 6 was promoted to Grade-16 on 29th December, 1975 i.e. a little after the appointment of the petitioner but in the same year.
3. The grievance of the petitioner was that in the seniority list the aforesaid three departmental promotees were shown senior to him, whereas he claimed seniority over them.
4. The other grievance of the petitioner was with regard to his qualifications which according to him were suitable and commensurate with the responsibility of the higher grade, namely, Stores Officer. Petitioner's claim having been rejected, he made representation to the Director-General of the Civil Aviation against the treatment of respondents 4 to 6 as senior to him. As no reply was received by him, he preferred" an appeal to the Secretary, Government of Pakistan, Ministry of Defence, Aviation Division. Rawalpindi, wherein he prayed that the seniority list may be amended in accordance with the applicable rules and consequential benefits may be awarded to him. It seems the Secretary to Government communicated to the petitioner, vide his letter, dated 3rd November, 1980, that his appeal had been rejected. He, therefore, filed an appeal before the Service Tribunal which was dismissed, vide impugned order.
5. As the petitioner was appearing in person, we had issued notice to respondent No. 1 and Mr. Shahudul Haque, Advocate, has appeared in response to the notice to assist the Court. It has been pointed out to us that respondents 4 to 6 have since retired from service and it is urged by the learned counsel for respondent No. 1; that the petition has, therefore, become infructuous. The petitioner has, however, contended 'that notwithstanding the retirement of the aforesaid three officers from service, the question of consequential benefits on the determination of petitioner's seniority would still require decision by this Court.
6. As far as respondents Nos.4 and 5 are concerned as already stated these two officers were promoted prior to the appointment of the petitioner in the Civil Aviation Department. We, therefore, agree with the findings of the Service Tribunal that the petitioner cannot claim seniority over them having himself joined Government service much later to the date of their promotions. As regards respondent No. 6, the learned Service Tribunal relying on subsection (3) of section 8 of the Civil Servants Act 1973, alongwith the principles of seniority as laid down in Annexure '1' of the Establishment Division's Officer Memorandum No. 1/16/69-D.II, dated 31st December, 1970, held that officers promoted to higher grade in a continuous arrangement and as a regular measure in a particular year, are to be ranked senior to those appointed by direct recruitment in the same year, therefore, petitioner having been appointed in the same year in which respondent No. 6 was promoted, the latter would stand senior to the petitioner. The petitioner did not dispute the applicability of the general principles of seniority on which reliance has been placed by the learned Tribunal. He however, vehemently contended that respondent No. 6 was not eligible to be promoted in Grade-16 in regular manner as the particular post to which he was promoted was meant for direct recruits and not promotees. In this connection he wanted the Court to go into the question of the number of posts available for the two categories of officers; namely, promotees and direct recruits. However, we find that no such issue was raised before the Service Tribunal as there is no discussion on this point in the impugned order. We cannot permit a new point to be raised at this stage which requires investigation into a question of fact. The petitioner has submitted that he had raised this point in his memo. Of appeal before the Service Tribunal but on perusal of that we find that only a general plea was taken which seems to have been abandoned before the Tribunal as no inquiry into this aspect was undertaken. In any case the three officers having retired from service, the issue of the petitioner's seniority qua them is no longer a live issue.
7. The other grievance of the petitioner, as pointed out earlier related to his being qualified for the post of Stores Officer for which he had applied as direct recruit, but the Federal Public Service Commission, refused to call. Him for interview on the ground that he was not qualified for direct recruitment to that post. The educational qualifications required for a post to be filed by direct recruitment was degree of B.Sc. In second division in Physics and Mathematics and three years experience in a Stores Organization was also a requisite alongwith the said degree. Since the petitioner did not possess a degree of B.Sc. In Physics, he was not considered duly qualified for the post and, therefore, was not called for interview. His contention, however, was that M. A. (Maths.) degree which he possessed includes Theoretical Physics, therefore, he was qualified for the post.
His alternate request is for relaxation of the rules. His case was referred to the University Grants Commission who gave their opinion that since he had not performed practical in Physics in degree examination, he did not fulfil the requirement. In view of these circumstances the learned Service Tribunal held that he was not qualified and since relaxation of the qualifications lay within the exclusive competence of the Federal Public Service Commission, no interference was possible so far as the second prayer of the petitioner is concerned. The petitioner was unable to satisfy us on the question of his qualifications in view of the expert opinion given by the University Grant Commission and, therefore, we find no substance in his second prayer.
8. In view of the aforesaid, this petition is devoid of force and is accordingly dismissed.