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Appeal No. 50 (R) of 1982, decided on 21st February, 1983.

‑‑S. 4‑Seniority‑List revised under wrong advice to President -Departmental authorities reluctant and not defending averments of appellant‑Record indicative of injustice to appellant‑ Impugned notification, in circumstances, held, to be deemed never to have been issued and seniority of appellant restored.

M. S. Siddiqi for Appellant.

Nemo for Respondents.

Date of hearing : 7th February, 1983.

The cause of the present appeal is a Gazette Notification No. 4‑4 (31)/ 77‑Estt., dated 8th March, 1981 originating from the Ministry of Labour, Manpower and Overseas Pakistanis (Manpower Division) which is reproduced below;

In exercise of the powers conferred under section 12‑A of the Civil Servants Act, 1973, the President is pleased to order that the seniority in Grade‑18 of Mr. Muhammad Anwar Butt, Deputy Director, Bureau of Emigration and Overseas Employment be reckon ed from the date he completes five years service in Grade‑17."

2. As a result of the above order, the fresh seniority list circulated vide the Manpower Division O. M. No. 12‑1 (8)/80‑Estt. dated the 31^st August, 1981 reas as under :‑

"SENIORITY LIST OF DEPUTY DIRECTORS, BUREAU OF EMIG RATION AND OVERSEAS EMPLOYMENT

3. Against the above seniority list, the appellant preferred a depart mental appeal on 7‑9‑1981. To this appeal, the Establishment Division O. M. No. 2/ 13/80‑D. II, dated 3‑11‑1981 was conveyed to the appellant. Para 2 of the said O. M., being relevant, is reproduced :‑

"However, as a result of review of the case of irregular appointments/ promotions, the competent authority the President has ordered Mr. Butt may take seniority in grade 18 as and when he completes 5 years service in Grade 17. This Division has therefore, no locus standi to review the decision of the President. Mr. Butt may be advised that he should make petition to the President if admissible in the rules, against the decision of the President."

4. The appellant made a review petition to the President on 8‑12‑1981 which evoked no response and after waiting for 90 days he filed his present appeal before us on 16‑3‑1982 on the grounds that he be declared senior to Messrs Mr. Sarwar Nasim, Taj Muhammad Baloch and Muhammad Ibrahim Khan, Deputy Directors.

5. .Before going any further, we would like to refer to our judgments dated 22‑3‑1982 in Appeal No. 111 (R)/1980 in which we had decided the inter se seniority of the appellant as against Sarwar Nasim, in, this case, the Manpower Division vide their letter No. 12‑1 (4)/80‑Estt., dated 20‑3‑1982, which is reproduced below, had conceded the case in favour of the appellant;----

"Subject : Appeal No. 111 (R)/80‑Mr. M. Anwar Butt v. Secretary, Manpower Division and others

Sir,

I am directed to refer to Service Tribunal Notice No. 662 dated the 7th March, 1982 on the above subject and to say that Law Division have advised that Government may concede before the Service Tribunal and let Mr. Sarwar Nasim plead his case before the Tribunal, if he so desires and let the Tribunal decide the issue, without ourselves contesting the appeal. "

Since the respondent Sarwar Nasim did not appear before the Tribunal, we, on merits of Appeal No. 111 (R)/1980, held that the appellant Muhammad Anwar Butt shall rank senior to Sarwar Nasim and this became the settled position.

6. We, now, advert to the present appeal before us. We heard the learned counsel for the appellant. The learned State Counsel stated that he had no instructions in this case. However, we have received a letter from the Manpower Division which we reproduce :‑

Government of Pakistan

Ministry of Labour, Manpower &

Overseas Pakistanis

(MANPOWER DIVISION)

No. 12‑1 (3)/E2‑Esst., Islamabed, the 6th February, 1983.

To

The Registrar,

Federal Service Tribunal

Islamabad.

Subject : Appeal No. 50 (R)/1982 filed by Mr. M. Anwar Butt, Deputy Director, Bureau of Emigration & Overseas Employment, Islamabad.

Sir,

I am directed to refer to the Service Tribunal, Islamabad. Notice No 408/83‑EST, dated 15‑1‑1983 on the above subject and to say that it has been decided by this Division not to contest the abovementioned case.

Your obedient servant,

(Sd.)

(SHAHID ZAFAR),

SECTION OFFICER."

7. From the above letter it is quite clear that the Manpower Division have nothing to say in rebuttal of the points raised by the appellant. Similar is the case in respect of respondents Nos. 3 and 4 viz. Sarwar Nasim and Taj Muhammad Baloch. As regards respondent No. 5 Muhammad Ibrahim Khan he has contested .the present appeal by filing his written statement. We have taken the averments of the said respondent No. 5 into account while writing this judgment.

8. Having considered the matter carefully we are in no doubt that a wrong advice was tendered to the President in this case. The onus for this wrong advice falls squarely on the Manpower Division. The Establish ment Division could have saved the situation but did not. Now that wrong orders have been issued in the form of Gazette Notification, dated 8‑3‑1981, the two said Divisions are reluctant or embarrassed to go back to the President and have him revise his earlier decision of leaving the Gazette Notification, dated 8th March, 1981 in tact. They have, therefore, decided to rely on the judgment of the Tribunal so that they could keep out of harm's way. We are in no doubt that injustice has been done to the appellant which can be traced easily to a crass inefficiency of Establishment Division who are expected to be a leading light in these matters. The parent Division of the appellant is no less culpable. The record which we have perused speaks volumes to this effect. We therefore, order that the appellant shall be placed senior to respondents Nos. 3, 4 and 5 and the seniority list dated 31‑8‑1981 deemed to have been amended accordingly. The Gazette Notification dated 8‑3‑1981 shall be deemed never to have been issued and the appellant's seniority shall reckon with effect from 7th October, 1976 in the grade of Deputy Director.

9. No order as to costs.

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