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Appeal No. 8 (R) of 1976, decided on 10th April, 1978.

‑‑ S. 4(1) (c)‑Seniority list published before 1‑7‑1969‑Claim, however, based on principles and rules formulated in August, 1974‑‑Appellant informed by competent authority that his seniority was not to be refixed under new policy on 21‑10‑1975‑Departmental appeal made on 23‑10‑1375‑Appeal before Tribunal filed on 26‑1‑1976 Contention that seniority list being of date prior to 1‑7‑1969, in circum stances, rejected and appeal having been fled 2 days after expiry of 90 days from date of departmental appeal, held, not time‑barred.

Appellant in person.

Syed M. Shahudul Haque for Respondent No, 1.

This is an appeal by Mr. Abdul Rafiq, Administrative Officer, Energy Resources Cell, Ministry of Fuel, Power and Natural Resources, Government of Pakistan, for the refixation of his seniority as an Assistant. There are eight respondents of whom respondent No. 1 is the Secretary of the, aforesaid Ministry and the respondent No. 2 is Mr. Mir Yusuf Shah, a Section Officer of that Ministry. The remaining six respondents are the officials of the Ministry who are now considered to be senior to the appellant but he claims seniority over them.

2. As stated by the appellant, after passing the Federal Public Service Commission Examination for Assistants held in 1953, he was appointed on 13‑8.1955 as a temporary Assistant in the Works and Rehabilitation Division. On 2‑1‑1960, he was promoted as Assistant Accounts Officer in the Settlement Department whereupon he severed all connections with the Works and Rehabilitation Division. On 15‑8‑1961, he was appointed as air Assistant in the Capital Development Authority, Islamabad. On 8‑2‑1965, he joined the Education Division of the Government of Pakistan as an Assistant in the capacity of the Federal Public Service Commission nominee of 1953. In 1967, the appellant again appeared in the Federal Public Service Commis sion Examination for Assistants and topped the List, Thereafter on transfer from the Ministry of Education he was nominated for appointment in the Ministry of Fuel, Power and Natural Resources which he actually joined on 12‑4‑1969 as an Assistant. He was confirmed , by the Ministry of Education on 8‑2‑1965 and by the Ministry of Fuel, Power and Natural Resources on 12‑7‑1969.

3. At the time of his joining the Ministry of Fuel, Power and Natural Resources, there were fourteen permanent posts of Assistants in that Ministry. Of these, five posts were held by Messrs S. Enayat Hussain, Muhammad Hussain, Altaf Hussain, S. M. Ahsan and Mahboob Alam. Against the remaining eight posts, Messrs A. M. Wahidi, Mahmoodul Hasan, A. Hamid Khan, Hashmat Ali, B. 1. Haqqie, Shakir Hussain and S. M. Ishaque Mehta were confirmed with effect from 20‑7‑1965 by order dated 12‑6‑1968. The appellant was confirmed against the fourteenth post on 12‑7‑1969 as stated earlier. Of the Assistants involved in this case, the appellant and Mr. Haqqie are the direct recruits while all others are departmental candidates.

4. The appellant's contention is that confirmations against nine posts of Assistants made on 12‑6‑1968 were in violation of the Establishments Division's Office Memorandum No. F. 1/6/62 F. II., dated 9‑1‑1968, inasmuch as according to the instructions contained in the said Office Memorandum the posts of Assistants had to be equally shared by the departmental candidates and the direct recruits but in making the confirmations in question, the above instructions were not observed and out of eight vacancies against which confirmations were made only one was utilized by a direct recruit, Mr. Haqqie but against the remaining seven posts departmental candidates were confirmed.

5. Another plea raised by the appellant is that notwithstanding the aforesaid confirmations he can take seniority over the respondents Nos. 3 to 8 because they were temporary employees and appointed upto 31‑12‑1964 while he was a regular nominee of 1967 Federal Public Service Commission Examination. This plea of the appellant is based on the Establishment Division's Office Memorandum Nos. 1‑34/65 F. II., dated the 7‑8‑1974.

6. The appellant, therefore, prayed that he be declared s‑ for to respondents Nos. 4 to 8. In addition, he has claimed compensation for the monetary loss caused to him by respondents Nos. 2 and 3 through "procras tination and indifferent attitude to the appellant".

7. The appellant argued his case himself and Syed M. Shahudul Huque, Advocate, presented arguments on behalf of the first respondent.

8. One preliminary objection taken by Syed M. Shahudul Huque Advocate (hereinafter referred to as learned counsel for the respondent) was that the present appeal related to a decision made before 1‑7‑1969 and, therefore, in view of the provisions of paragraph (c) of the proviso to sub section (1) of section 4 of the Service Tribunals Act, 1973 the appeal was not competent. He maintained that the main grievance of the appellant was in respect of the confirmation of respondents Nos. 3 to 8 and since they were confirmed any order, dated 12‑6‑1969, which was made before 1‑7‑1969, the appeal was hit by the aforesaid provisions of the Act. We are, however, unable to agree with the learned counsel for the respondent because the appellant is claiming seniority over the aforesaid respondents mainly on the basis of Office Memorandum of at a date subsequent to 1‑7‑1969 the appeal does not come within the mischief of paragraph (c) of proviso to subsection (1) of section 4 of the Service Tribunals Act. Thus, there is no bar to the maintainability of the present appeal.

9. Another contention raised by the learned counsel for the respondent was that the appeal was time barred. He urged that the first seniority list showing the appellant as junior to the respondents Nos. 4 to 8 was issued on 15‑8‑1969 but the appeal was filed as late as on 26‑1‑1976. Learned counsel for the respondent maintained that since, under subsection (1) of section 4 of the Service Tribunals Act the appeal had to be filed within thirty days of the communication of the aforesaid seniority list or within the six months of the establishment of the Service Tribunal, whichever was later, the appeal was barred by limitation because it was not preferred within the stipulated period. .

10. We have already pointed out that the appellant's case is based on the Office Memorandum of 1974 which laid down the principle for regula ting seniority of direct recruits vis‑a‑vis departmental candidates. Therefore, for the purpose of reckoning the period of limitation seniority list issued in 1969 cannot be treated as the starting point. After the issuance of the aforesaid Office Memorandum, the appellant was intimated, vide Office Order No. F‑4‑15/64/Admn, dated 21‑10‑1975 issued by the Ministry of Fuel, Power and Natural Resources that he could not take seniority with effect from 8‑2‑1965 when lie was confirmed as Assistant in the Ministry of Education and that his lien in that Ministry had been terminated with effect from 12‑8‑1969 when he was confirmed as Assistant in the Ministry of Fuel, Power and Natural Resources. Against this order, he preferred an appeal to the Secretary of the aforesaid Ministry on 23‑10‑1975. As no order was passed in his departmental appeal for ninety days by instituted the present appeal A before the Tribunal on 26‑1‑1976 about two days after the expiration of period of ninety days. This he could do under the paragraph (a) of sub section (1) of section 4 of the Service Tribunals Act, 1973. Keeping all this in view, the appeal cannot be treated as time barred.

11. Coming now to the merits of the case we find that according to Establishment Division Office Memorandum No. 1‑34/65‑F. II, dated 7‑8‑1974, the regular nominees of 1967 Examination (held by the Federal Public Service Commission) are to be given preference over the temporary employees appoin ted upto 1964, in the matter of inter se seniority. It is not disputed that the appellant is a regular nominee of 1967 Examination while the departmental candidates over whom he claims seniority were temporary Assistants employed up to 1964. In view of the aforesaid letter, therefore, he deserves to be senior to the departmental candidates in question.

12. For the above finding, we accept the appeal and direct that the seniority of the appellant, vis‑a‑vis the respondents shall be refixed in the light of that finding. We make no order as to the compensation for monetary loss claimed by the appellant because, during .the course of argu ments, he gave up his prayer for that relief.

13. There shall be no order as to costs.

Appeal accepted.

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