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‑‑ R. l I‑Examination for promotion as Section Officer‑A compe titive examination and not qualifying examination‑Taking more chances to improve merit‑Right of person passing examination Cannot be abridged.

Ss.2 (1) (a), 8 (4) and Central Secretariat Service (Class I) Rules, 1965, r. 13 and Estt. Division O. M., dated 27th January, 1975‑Seniority of Section Officers‑Central Secretariat Service (Class 1) Rules, 1965 and O. M., dated 27th January, 1975 re garding creation of Office Management Group‑Service subject to consistency with Civil Servants Act, 1973‑Seniority determin able with reference to date of regular appointment‑Person having passed written competitive examination for purpose of promotion as Section Officer as per rule I1 of Central Secretariat Service (Class I) Rules, 1965 promoted temporarily beyond promotion quota‑Such promotion, in circumstances, held, on ad hoc appointment conferring no right of seniority‑Rule 13 of Central Secretariat Service (Class 1) Rules, 1965, in circum stances; held, could not be invoked for purposes of fixation of seniority of such promotee.

G. S. Khan for Appellant.

Syed M. Shahudul Huque, State Counsel.

Respondents Nos. 5, 7, 10, 14, 15, 16, 17, 26, 34, 36, 42, 47, 51, 55, 58, 65, 75, 80, 85, 89, 92, 94, 100, 106, 107. 108, 110, 113, 115, 117, 127, 132, 133, 144, 145, 151 and 153 in person.

Dates of hearing: 7th to 10th August, 1983 .

.‑As a result of 1967 promotional exami nation conducted by Federal Public Service Commission, in accor dance with rule 11 of the Central Secretariat Service (Class I) Rules, 1965, the appellant was appointed as a Section Officer in the Ministry of Education, with effect from 27th January, 1969.

2. On 16th November, 1981, the Establishment Secretary (respon dent No. 1) circulated a seniority list of Section Officers in which the appellant had been shown junior to the Direct Recruits of the year 1974. He represented against the impugned seniority list on 16th December. 1981. His departmental appeal was rejected, vide O. M., dated 15th May, 1982. In order to exhaust the departmental remedy as per Appeal Rules, 1977 read with section 22 of the Civil Servants Act, 1973, the appellant submitted an appeal to the President of Pakistan on 12th June, 1982 which was withheld by respondent No. I, vide O. M., dated 24th June, 1982, whereafter the present appeal was, filed before the Federal Service Tribunal under section 4 of the Service Tribunals Act, 1973, on the main ground that appellant's seniority 'be fixed in accordance with rule 13 of the C. S. S. Rules, 1965.

3. We beard the learned counsel for the appellant at length. For reasons of brevity, we would only summarise the issues raised or dealt with by him First: The 1967 promotional examination was a qualifying and not a competitive examination and all those who qualified were eligible to be absorbed regularly as and when the vacancies occurred in 20% quota reserved for promotees in the light of rule 6 of the C. S. S. Rules, 1965. Second: The appellant was never an ad hoc appointee. Even if he was not a regular appointee his seniority was to be governed by rule 13, C. S. S. Rules, 1965, which lays down that the seniority of those appointed as Section Officers will count from the date of their continuous appointment (subject to certain principles which need not be referred to in this judgment). It is rule 13 ibid which held the field whereas section 8 of the Civil Servants Act, 1973 dealing with seniority is of a general nature. Third: The O. M., dated 27th January, 1975, whereby the Office Management Group was created, is valid so long as it is not inconsistent with Section Officers (Probation Training and Seniority) Rules, 1964 and C. S. S. (Class 1) Rules, 1965. Fourth and last: The appellant had been prevented from appearing in the 1969 promotional examination otherwise he would have improved his earlier position.

4. We now take up and dispose of each one of the above mentioned issues. First : Rule 11, Recruitment by Promotion, of the C. S. S. Rules, 1965 says :-

"11. Recruitment by promotion.-(1) Appointments by promotion shall be made on the basis of written competitive examinations and interview both to be held by the Central Public Service Commission."

Obviously, therefore, the 1967 examination in which the appellant qualified was a Competitive Examination. Also, the Establishment Division O. M., dated 15th March, 1967 clearly laid down, both in A its subject and in its body, that the 1967 (or the first) was a competitive examination under rule 11(1) of the C. S. S. (Class I) Rules, 1965.

5. As to the second issue, that the appellant was never an ad hoc appointee, we advert to Establishment Division O. M., dated 16th December, 1968. According to the said O. M. only 18 Section Officers were appointed provisionally on a temporary basis and until further orders. We shall shortly highlight the legal status of these 18 appointees. Another O. M., dated 27th December, 1968 contained appointment orders in respect of 14 Section Officers and yet another O. M., dated 25th January, 1969 gave posting orders of 51 Section Officers, the appellant appearing at serial 50 of the O. M., dated 25th January, 1969. Before proceeding further, we might mention that in the 1967 promotional examination, 93 candidates qualified. In the order of merit released, vide Establishment Division O. M., dated 11th November, 1968, the appellant stood at position No. 92. The to O. M dated 27th December, 1968 and 25th January, 1969 while ordering the posting of Section Officer, stated very clearly :-

these candidates will have no claim for regular retention as Section officers unless their turn comes for regular appointment against the prescribed quota."

The above-quoted rider was not made applicable to 18 Section Officers appointed, vide O. M., dated 16th December, 1968 and already referred to above because they had qualified by virtue of their higher merit in the competitive promotional examination of, 1967 to be appointed Regularly against 18 posts, worked out as the departmental promotion quota. It could have come to pass that only 18 Section Officers bad received appointment letters and the rest reverted to their original appointment or not at all appointed as does happen in a competition and this would have been perfectly in consonance with rule 11 of C. S. S. (Class 1) Rules, 1965 quoted at para.4. But the situation at the time was such that All those who qualified were appointed. 18 Section Officers (later on raised to 21) were Regular and the remaining were ad hoc appointees.

6. We also quote relevant part of para. 4 of Summary for the President and C. M. L. A. submitted by the then Establishment Secretary on 4th February, 1971 which read :-

4. in order to fill up these vacancies, a Section Officer (Pro-motional) Examination was held in 1967. The vacancies were calculated on the overall basis of regular as well as temporary posts and 20% of these vacancies, which came to 18, were filled up by appointment of the first 18 persons who had passed the Promotional Examination. The remaining persons numbering 89 who had passed the Examination but did not come within the quota were also subsequently appointed as Section Officer on a purely temporary basis subject to the condition that they would have no right for encadrement in the Central Secretariat Service unless posts became available in their own quota ...."

We are quite clear in our mind that the appointment of the appellant was on ad hoc basis. Also, we have seen no documentary evidence to suggest that the appellant came within the C. S. S. cadre strength of 570 as specified in rule 4 of C. S. S. (Class 1) Rules, 1965 and that he was ever encadred as was customary in the C. S. S. This also goes to confirm his ad hoc status.

7. We have no doubt that the appellant before 27th January, 1975, did have a right of encadrement which was inherent in his case if only his turn came for regular appointment against the prescribed quota as stated in his letter of appointment as well as in the summary to the President and C. M. L. A. quoted at para 5 above.

8. We now advert to the third assertion of the learned counsel whereby he urged that the U. M., dated 27th January, 1975 creating the office Management Group would be valid only in so, far as it was not inconsistent with the Section Officers Rules, 1964 and 1965. We have held similar views in Appeal No. 40 (R)/1981, Fazl-l-Qqdir v. Secretary Establishment Division and others, and have held further, that both C. S. S. Rules, 1964 and 1965 , as well as the O. M., dated 127th January, 1975, in order to survive, will have to be consistent with the Civil Servants Act, 1973. Section 8 (4) of the Act ibid lays down that the seniority in the grade to which a civil servant is promoted takes effect from .the date of regular appointment to a post in that grade. The expression "regular appointment" has been used in contradistinction to ad hoc appointment as in section 2(1) (a) of the Act ibid, meaning "appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruit ment". In the instant case, the appellant failed to find a berth within the number of. seats reserved for the promotees on quota basis. He was appointed outside the regular quota and hence an ad hoc appointee which confers no benefit of seniority. He may) also mention that rule 13, C. S. S. (Class 1) Rules, 1965 cannot be involved in the instant appeal because the appellant could not be appointed against any of the posts which fell within 20%, quota of the regular vacancies and he was never, as such, encadred in the C. S. S.

9. We, now, deal with the last averment before us in what has been allegedly stated as "having prevented the appellant from appearing in the 1969 promotional examination, thus depriving him of improving his merit position. 1t is believed that some such communication did originate although it has not be6n produced before us. We cannot, therefore, give the benefit of any such letter till we are aware of its exact import. Also, we do not find this plea appearing anywher in the memo of appeal.

10. Merely‑, b; way of interest, we may mention from the application, dated 12th March, 1969 of a stenographer addressed to the Establishment Sectary with reference to 1967 promotional examination (available on the record of the Establishment Division). Relevant portion read:

"The aforesaid examination has been declared a qualifying one according to reply given to a question put by Mizanurrahman Chowdhry, M. N. A. on 12th June, 1968 in the National As sembly."

The above quotation, notwithstanding, the promotional examinations did remain competitive as per rule 11 (I) of C. S. S. (Class 1) Rules, 1965 and contrary to the view‑point of the learned counsel in the present appeal. And similarly An odd letter, alleged to have prevented the appellant from appearing in 1969, and which letter we have not' even seen, should not have abridged the right of the appellant to take a second chance in 1969.

11 ‑ The present appeal was heard by us on I0th August; 1983. It was kept pending for want of authentic information with reference to interrogatories filed in miscellaneous petition, dated 31st March, 1983. At our behest‑ the Establishment Division carried out an indepth study. However, we find that due to last but one position, the appellant simply could not have been adjusted as a regular appointee before 27tb January, 1975. This conclusion is borne out from the fact that even those who were appointed ad hoc Section Officers its a result of 1967 promotional examination and had attained higher merit position than the appellant, were regularised with effect from 27th January,,,, .. 1975. Obviously, therefore, the appellant could not have been regularised earlier than his batch' mates who stood higher than him. However, as a result of detailed analysis of the seniority lists originating from 1974 and culminating. in seniority list of November, 1981, it has become clear that a drastic and quick revision of the last seniority list has become an indispensable requirement. The Establishment Division would do well to undertake this task with utmost, despatch..

12. Of the 167 officer respondents, respondents Nos. 5, 7, 10, 14 to 17, 26, 34, 36, 42, 47, 51, 65, 75, 80, 85, 89, 92, 94, 100, 106 to 108, 110, 113, 115, 117, 127, 132, 133, 144, 145, 151, and 153 appeared before us. It was respondent No. 5 (Munir Ahmad, Deputy Secretary, Ministry of Finance) who projected the view point of the respondents and opposed the appeal.

13. In the result, we find that the appellant had been appointed as ad hoc Section Officer with effect from 27th January, 1969. He remained an ad hoc appointee till as admitted by the Establishment Division his services were regularised, with effect from 27th January, 1975. Also, he was never encadred into the C. S. S. It appears that due to his very low position in 1967 examination, he did not get absorbed against the departmental quota, for regular appointment before 27th January, 1975. The appeal before us, being devoid of merit, is accor dingly, dismissed with no order as to costs.

A., E. Appeal dismissed

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