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Civil Appeals Nos. 57 to 61 of 1981, decided on 17th March, 1986.

(Against the Judgment and Order of the Service Tribunal, Islamabad dated 24th August, 1980).

Art. 212 (3)‑Civil service‑Seniority‑Leave to appeal granted to examine whether Service Tribunal had correctly exercised its juris diction in so far as it ante‑dated appointments of direct recruits to tithe when vacancies occurred or their selection was made, ignoring altogether date in which such recruits took over their appointment, and in assigning seniority, pay allowances according to such ante dated appointments.‑[Civil services].

‑‑ Art. 212 (3)‑Civil service‑Appointment‑Direct recruits and promotees ‑ Delay in issuing letter of appointment to direct recruits‑Delay explained by Authority‑Law governing delay remain ed unnoticed by Service Tribunal‑Offer of appointment issued to direct recruits contained condition that effective date would be the date of assumption of charge‑Service Tribunal, held, was not right in considering delay per se as infringement of aright of person appointed and proceeding to ante‑date appointment to a date when even posts were not advertised.‑[Civil services].

Estacode (1979) pp. 128‑130 ref.

‑

‑‑ Art. 212 (3)‑Civil service‑Seniority‑Direct recruits and pro motees‑Appointment of direct recruits, held, was to follow and not to precede promotion‑Service Tribunal by ignoring such rule and by reversing sequence of recruitment violated law governing the situation.‑‑[Civil services].

Estocode 1979 p. 128‑130 ref.

---Art. 212 (3)‑Civil service‑Appointment‑Roster of vacancies Operation‑Service Tribunal's forming its own view, ignoring what was already specifically prescribed in that behalf, such course, held, was not commendable‑Only where no rule existed and no principle was discoverable, system adopted by Service Tribunal could be appreciated.‑[Civil services]

Estacode (1979), p. 131 ref.

‑‑Art. 212 (3)‑Civil service‑Promotees and direct recruits‑Pro motion quota‑Department not demonstrating to have exceeded the worked out quota‑‑Sequence in which vacancies were filled, held, became irrelevant.‑[Civil services].

Estacode (1979), p. 131 ref.

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-‑‑ Art. 212 (3) ‑Civil service‑Promo tees and direct recruits Absorption of promotees‑Quota prescribed‑Violation of quota Express words amending relevant rules‑making quota principle inap plicable to such absorption‑No defect, held, was found established in absorption of promutees in circumstances.‑[Civil services].

Munir A. Shaikh, Deputy Attorney‑General instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

D. M. Awan, Senior Advocate Supreme Court and S. Ali Imam Naqvi, Advocate‑on‑Record (absent) for Respondent No. 1 (in C. A. No. 57 of 1981).

Remaining Respondents : Ex parte.

Mian A. Majid, Advocate Supreme Court and M. Qasim Imam, Advo cate‑on‑Record (absent) for Respondents (in C.A. No. 58 of 1981).

Respondents : Ex parte (in C. A. 59 of 1.981).

Nemo Respondents for (in C. A. No. 60 of 1981).

Nemo for Respondents (in C. A. No. 61 of 1981).

Date of hearing : 9th March, 1986.

Leave to appeal was granted to the Islamic Republic of Pakistan under Article 212 (3) of the Constitution to examine whether the Service Tribunal had correctly exercised its jurisdiction by Judgment, dated the 24th of August, 1980 in so far as it ante‑dated the appointments of direct recruits to the time when the vacancies occurred or their selection was made, ignoring altogether the date on which the took over their appointment, and in assigning seniority, pay allowance according to such ante‑Gated appointments.

On the 4th of May, 1978 a final seniority list of Aerodrome Officers in the Civil Aviation Department was notified. The direct recruits to the posts of Aerodrome officers were shown junior to the promotees whose appointment had been regularised from 28‑9‑1969, and to those promotees who had taken over in the same calendar year on the strength of their pro motion orders to the post of Aerodrome Officers. The grievance of direct re cruits was that under the recruitment rules for Civil Aviation Class‑I posts gazetted on 21‑8‑1970 during the first two years the proportion of direct recruits to promotees in the cadre of Aerodrome Officers was 50 per cent and thereafter it increased to 75 per cent. Accordingly, the direct recruits claimed that they were selected by the Public Service Commission in 1972 and in September 1972 the Government approved their appointment as Aerodrome Officers but the Director‑General, Civil Aviation with mala fide intention prevented the issuance of their appointment letter with the result that they could not take over till 1974. They claimed that they should be allowed seniority from the date of their selection which was concluded in September 1972 ignoring the delay in their appointment and the date of their taking over of the post. It was also contended that according to the ratio of recruitment prescribed the promotion quota stood exhausted after the regularisation of the first eight ad‑hoc appointments made on 14‑9‑1973 and thereafter no promotion vacancies were left in the cadre of Aerodrome Officers. As such the promotions notified on 1‑4‑1974 were in excess of the quota and the persons so appointed could not claim seniority over them. Finally, their third grievance was that the Airport Managers Grade‑III could be absorbed as Aerodrome Officers only on satisfaction of two conditions. The first condition was that they should be regularly holding the post of Airport Manager Grade‑III and secondly they should have been cleared by the Federal Public Service Commission for appoint ment as Aerodrome Officer. It is contended that the Airport Managers who were absorbed were in fact not regular appointees to those posts but were holding them ad hoc and could not be absorbed. Besides, the appro val of the Federal Public Service Commission was not obtained in their favour. After exhausting departmental remedy some of the direct recruits approached the Service Tribunal.

On the question as to how the vacancies should be distributed amongst the direct recruits and the promotees and how the roster should be operated, the Tribunal held as follows :‑

"The Government has filled eight posts on regular basis with effect from 28‑9‑1969 by virtue of an order issued on 14‑9‑1973. All these posts cannot be reserved for the quota of promotees, who could claim 50 % of the posts and only four posts could be filled by promotion and remaining four by direct recruitment. The respon dents 4 to 7 have been appointed against promotion quota without any sanctity of the rules and they have to be reverted to take chance from the dates the vacancies of promotion quota become available on subsequent dates. The seniority list has to be revised accor dingly."

On the same subject the Tribunal further held as follows‑

"The six posts filled against the promotion quota with effect from 1‑4‑1974 were also not regular and not covered by the available rules, because the posts of promotion quota were not available to them, The plea of the Government that the posts vacated by the officers belonging to the promotion quota should necessarily be filled by the same category of officers is not acceptable, because the same is not covered by any rules. The only interpretation of quota rules that can be accepted is that every time a vacancy becomes available in the grade of Aerodrome Officers, the same shall have to be filled in equal proportion between the direct recruited and the promotees during first two years. Thereafter, proportion of 75 % and 25 % has to be maintained. All the promotions made up‑to‑date have to be recalculated on that basis."

The consequence of the application of this rule was held to be as follows:-

"The four senior most directly recruited officers would thus be pro moted against their quota posts with effect from 28‑9‑1969 and paid accordingly and also given seniority just below the four promotees regularised with effect from 28‑9‑1969."

As regards the claim that the selection of the direct recruits having been concluded in September, 1972 it was delayed mala fide, the Tribunal upheld it with the following observations :‑

"The remaining four directly recruited officers (except the four who would be appointed with effect from 28‑9‑1969) were ordered to be appointed by the competent authority on 14‑9‑1972, and their taking over was delayed by the Director‑General, Civil Aviation, without any authority. They are, therefore, entitled to promotion with effect from the above date with all benefits of pay and allowances, etc. on the analogy of the judgment of this Tribunal in case of Bashir Ahmed Kazmi v. Auditor‑General of Pakistan, quoted above. It has been admitted that this promotion has been denied to the officers through no fault of theirs and the responsibility for delay entirely rests with the Government Administration."

The learned Deputy Attorney‑General has contended that delay in direct recruitment could not itself entitle the recruits to claim seniority from the date when their selection was made or accepted by the Government. Their appointment had to be notified and they had to take over the duties of their post and only then under Fundamental Rule 17 they were deemed to be appointed as from that date to the posts. Without taking up the appointment and without discharging the duties of the post, they could not be given the pay and the allowances or the seniority. It is also con tended by the Deputy Attorney‑General that the Service Tribunal has treated the case of the direct equipment as of promotion not only by expressing so in words, but also by treating it in law and taking back the appointment of direct recruits to 1969 when the case of the direct recruits themselves was that the posts were advertised and selections were com pleted in 1972. The relief granted, according to the Deputy Attorney‑General far exceeds, the claim made within the department or in the appeal before the Tribunal. The learned Deputy Attorney‑General has also drawn our attention to Circular in the form of Office Memorandum, dated 21st March, 1968 governing the manner in which the roster of pro‑motion and of direct recruitment has to be operated. The very assumption and distribution of vacancies. according to the learned Deputy Attorney General, violates the instructions which have the force of rules in the field. Finally it is contended that in distributing the vacancies, consistent with the principles expounded, the Service Tribunal should have also distributed the vacancies offered for direct recruitment through Public Service Commission in the same manner as was done with regard to the other 27 vacancies in the judgment.

A preliminary objection has been taken by the learned counsel for the respondents that the Federation's appeals are time‑barred as the judgment of the Service Tribunal is dated 24‑8‑1980 and the petition for leave to appeal was filed on 7‑12‑1980. The learned Deputy Attorney‑General pointed out that the judgment was not announced but, as prescribed by rules, communicated by letter dated 2‑9‑1980 which was received on 4‑9‑1980. As a copy of the Grounds of Appeal before Service Tribunal had to be filed, it was applied for on 2‑11‑1980, copy was prepared on 6‑12‑1980 and the petition for Leave to Appeal was filed on 7‑12‑1980 it was within time. We have examined the Rules of the Supreme Court applicable in November 1980 and find that such were the requirements. The copy was applied for within the period of limitation and allowing the time taken for preparing its copy, the appeal is within time. The time taken is satisfactorily explained and the appeals are held to be within time.

There was admittedly delay in issuing to the Direct Recruits the letter of appointment. The explanation for the delay was found in the written objections filed by the department and partly in clause (i) condition No. 2 of the offer of appointment itself. The law governing the delay is contain ed in Estacode (1979) pages 128‑130. It is unfortunate that all this remain ed unnoticed by the Service Tribunal. The Service Tribunal considered the delay per se as infringement of a right of the direct recruits, and pro ceeded to ante‑date the appointment of four of them to 28‑9‑1969 when not even the posts were advertised.

This delay was explained by the department in its written objections filed before the Tribunal in the following words :‑

"It is correct that the Commission as a result of advertisement of posts of Aerodrome Officers in 1971 recommended certain names including those of Mr. Tariq Mahmood and others in 1972. Inciden tally, all the candidates recommended by the Commission were serving Assistant Aerodrome Officers who had been recommended by the D. P. C. for promotion against the departmental quota held in March 1971 after which the posts for dire t recruitment were advertised. The promotions had not been finalized till the directly appointed candidates were approved by Government. The reason why the promotion case could not finalize vas that after separation of East Pakistan there was a reduction in the number of posts as a result of economy measures. The reorganization after 1971 events took time and the case for promotion could not be processed. Since the D. P. C. proceedings of 1971 had become inoperative by 1973, it was decided that the promotion case of Aerodrome Officers should be taken up. afresh by the D. P. C. As stated above after the separation of East Pakistan the number of posts of Aerodrome Officers had been reduced from 38 to 29. By April, 1973 the relaxation provided to the rules for 50 %, promotion had also expired. Therefore, on the basis of 25 %, 8 posts fell to promotion quota. These 8 posts were filled by officers who had been promoted on ad‑hoc basis prior to 1‑8‑1970 the date when the Recruitment Rules were promulgated. These ad‑hoc promotions were regularized by the competent authority, i.e. the Commission retrospectively.

These promotions were finally approved by the competent autho rity in April, 1974. Meanwhile the direct appointees recommended by the Commission in 1972 could not be appointed as such because as stated above, they were all junior to those who were on the promotion list and it would have created very disturbing position administratively if the junior candidates would have been appointed prior. to their seniors thereby completely disturbing their seniority. This Department being an Operational Department could not take the risk of dissatisfaction amongst the senior officers. The directly recruited candidates were appointed as Aerodrome Officer in March, 1974 and the promotees were appointed as Aerodrome Officer in April, 1974. Since the principles of seniority approved .by Govern ment provide that if within a year promotions/direct recruitment are made, the promotees as a class remain senior to direct recruits. The administrative problem of this Department was therefore, solved in this manner."

The offer of appointment which issued to the Direct Recruits on 25th March, 1974 contained the following condition in clause 2 (i)‑

"The appointment would take effect from the date of assumption of C charge of the post and is further subject to the decision of the Court on tae petition filed by some Assistant Aerodrome Officers praying inter alia that direct recruitment to the post of Aerodrome Officer may be stayed."

In Estacode (1979 edition) there is a circular dated 22‑6‑1952 at page 129 in which this specific problem of sequence of recruitment of direct recruits and promotees was examined in department, the advantages and disadvantages of all the alternatives were examined and comments of all the Ministries/Divisions were invited. After examining these comments, the policy was finalized and circulated by memo (Estacode 1979, p. 128) dated 22nd June, 1953 in the following words :.‑

"The replies received from the Ministries and Divisions on the suggestions contained in the above Memorandum have been considered and, in order to ensure that candidates rejected by the Federal Public Service Commission in open competition or selection should not be absorbed in vacancies meant for departmental quotas, it has been decided that the following procedure should be adopted in future

(i) Where a cadre has definite quotas reserved for departmental promotions and direct recruitment, promotions against the depart mental quota should be made first and the posts reserved for direct recruitment filled later. These orders, however, will have no effect on those cadres where recruitment is made solely by direct recruitment or where all promotions are made only by promotions ;

(ii) necessary provision regarding the above should be made in all recruitment rules already framed or framed hereafter ;

(iii) in the case of isolated posts, a roster should be maintained in each Ministry and Division to ensure the observance of the prescribed percentage for departmental promotions and direct recruitment.

(Authority : O. M. No. 15/38/52‑SEII, dated the 29th January, 1954)."

In view of this instruction, which has the force and effect of a rule, the appointment of Direct Recruits had to follow and not to precede the promotion. By ignoring these rules and by reversing the sequence of recruitment the Tribunal has evidently violated the law governing the situation.

The next question of law is how the roster of vacancies is to be operated, that is, by dividing the vacancies as they occur in the prescribed ratio (in this case 50 : 50 for first two years and 75 : 25 thereafter) or by observing the overall ratio in the cadre as such. On this question too, the Service Tribunal formed its own view, ignoring what was already specifically prescribed. In a situation where no rules exist and no principle is discover able, the system adopted by the Service Tribunal may appear commend able but not in the presence of a rule. At Serial No. 166 of Esta code (1979) page 131 exists the following instruction (dated 21st March, 1968)‑

"A question has arisen as to how the vacancies caused by resignation transfer, etc, of the persons appointed against the quota of departmental candidates or direct recruits, before confirmation of such persons should be filled. The matter has been considered in consultation with the Federal Public Service Commission and it has been decided that the vacancies in various services/posts caused by any reason, should be filled on the basis of the quotas fixed for promo tion, transfer and direct recruitment. For this purpose the total number of posts in a cadre should be distributed in accordance with the fixed quotas and the vacancies in such posts should be filled so as to achieve the overall quotas fixed for departmental candidates and direct recruits etc.

(2) Suitable amendments should be made in the recruitment rules where necessary, in consultation with the Establishment Division and the Federal Public Service Commission.

(Authority : O. M. No. 5(1)/11/67‑D. V., dated the 21st March, 1968.)"

Keeping this instruction in view the promotion quota works out a t eight posts and the Department has demonstrated that at no stage, promotees quota was allowed to exceed eight. The sequence in which' the vacancies are filled becomes, in view of these instructions, irrelevant.

The third question of law raised in appeal concerns the absorption of Airport Managers Grade III which according to the learned counsel for the respondents was subject to (i) their Class II appointments being regular and (ii) approval of Public Service Commission. As these two conditions remained unsatisfied, the absorbed personnel could not match their seniority. The factual part was met in the written objections in the following words‑

"Prior to 1970 the posts of Aerodrome Officer and Airport Manager Grade III which were Class II Posts were filled by promotion from the posts of Assistant Aerodrome Officer in accordance with the method of recruitment at that time approved by the competent authority. Also that these posts were reclassified as Class I in 1967 with effect from 1st December, 1962, and all appointments made to these posts prior to August, 1970, when the Recruitment Rules for Class I posts came into effect were regularised and thereafter recruitment was made to these posts in accordance with the Recruitment Rules for Class I Posts --------Aerodrome Officers and Airport Managers Grade‑III named in this paragraph who had been promoted on ad‑hoc basis prior to 1‑8‑1970 had, therefore, to be regularized in the light of the Recruitment Rules. This exercise was undertaken immediately after promulgation of the new rules and the Government who were the competent authority in their cases approved their promotions retrospectively from 28th September, 1969. There is nothing wrong in the regularization of these promotions by the competent authority. . The wordings of their appointment letters have no importance when the competent authority who approved the ad‑hoc appointments also approved the regularization of promotions retrospectively."

The amendment of the Recruitment Rules notified on 5‑5‑1973 while providing for such appointments of Airport Manager III, made inapplic able, the quota prescribed in rule 3(a). This relaxation was completely ignored by the Service Tribunal when it proceeded to hold as follows‑

"Since the Airport Managers can only be promoted as the Aerodrome Officers on transfer, which means that they would be appointed as Aerodrome Officers only if five posts in the promotion quota are available on that date, otherwise they would hold the posts on ad‑hoc basis till the quota posts become available. Their regularisa tion with effect from 28‑9‑r969 without availability of promotion quota posts is irregular and has to be cancelled by the Government. The serious infringement of observance of quota proportion done by the Government has to be corrected immediately."

Except for violation of quota no other legal defect was found in their absorption and on the express words of the amending rules the quota principle was inapplicable to such absorption. Hence there is no other defect found established in their absorption.

The result is that all these appeals are allowed, the judgment of the Service Tribunal is set aside with no order as to costs.

M. B. A. Appeals allowed,

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