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Civil Appeal No. 34 of 1983, decided on 5th November, 1985.

(On appeal from the judgment, dated 17‑11‑1983 of the Federal Service Tribunal, Islamabad, in Appeal No. 32(R) of 1981).

‑‑‑R. 3‑‑Federal Service Tribunals Act (LXX of 1973), S.4‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑Seniority‑‑Seniority of promoted officers is determined from date of confirmation to a superior post and not from date of officiation ‑‑Order of Service Tribunal allowing respondent seniority from date of officiation set aside.

‑‑‑R. 3‑‑Seniority‑‑Respondent who was initially appointed to officiate as Superintendent of Police in Grade‑18 improved his grade step by step after competing in lateral entry but he was not posted to any position in Secretariat Group‑‑Respondent's lien in Police Department neither suspended nor terminated nor respondent willing to terminate his lien in Police Group‑‑Respondent, held, entitled to fixation of his seniority in Grade‑18 from date of his confirmation till date, with all consequential benefits.

Munir A. Shaikh, Deputy Attorney‑General of Pakistan and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.

Zahurul Haq, Senior Advocate Supreme Curt, M. Bilal, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondent.

Date of hearing: 14th October, 1985.

This appeal, by leave of this Court, is directed against the judgment dated 17‑11‑1982 passed by the Federal Service Tribunal, Islamabad.

The facts, which form the background of this appeal are that the respondent Arbab Mukhtar Ahmad was recruited as a direct Deputy Superintendent of Police on 21‑12‑1949 on the basis of the recommendations of the Joint Punjab and N.‑W.F.P. Public Service Commission. He was promoted to officiate as Superintendent of Police on 11‑3‑1954‑‑a post in Grade‑18. The respondent was confirmed against this post on 24‑11‑1962.

On the introduction of lateral Entry Scheme the respondent applied for his appointment under that Scheme and after competing in the requisite examination in 1975 was selected and appointed as a Grade‑20 Officer in the Secretariat Group on 21‑4‑1976 but, according to him, was never posted to any post in the Secretariat Group and continued to have a permanent lien in the Police Group. In the Police Group, however, his erstwhile colleagues continued to get promotions on the dues date and some of them were appointed to Grade‑21 posts, while he was ignored. In August, 1980, a provisional seniority list of A. P.U.0. Officers of Police Group (Grades‑18 to 22) was issued but his name was not included.

The respondent feeling aggrieved submitted a representation on 27‑9‑1980 praying for inclusion of his name in the said list. He also prayed that his seniority be fixed in the Police Group from the date of his continuous officiation as a Superintendent of Police (Grade‑18), namely, from 11‑3‑1954.

As no reply was received with regard to the said representation for more than ,90 days, the respondent filed an appeal under section 4 of the Service Tribunal Act, 1973, before the Service Tribunal, Islamabad on 25‑1‑1981, praying that he be placed ire the list of Grade‑21 Officers immediately below Kh. Masroor Hussain and be given all the consequential benefits.

In the meanwhile on 18‑5‑1981 the representation submitted by the respondent on 27‑9‑1980 was decided. According to the decisions taken, the name of the respondent was to be included in the Police Group as an Officer of Grade‑18 and his seniority in that Grade and Group was to count from 24‑11‑1962‑‑the date of his confirmation in that Group.

The respondent being not satisfied with this decision, therefore, pressed the appeal he had already filed before the Service Tribunal. The said appeal was disposed of by the Service Tribunal vide order dated 17‑11‑1982. By this order it rejected the appeal of the respondent so far as his claim to be placed in Grade‑21 of the Police Group was concerned but it nevertheless held that the respondent should be accorded seniority in the Police Group with effect from the date of his officiation as Superintendent of Police i.e. as from 11‑3‑1954. The appeal was, thus, partially allowed: Hence, this appeal by the Federation of Pakistan.

Mr. Munir A. Sheikh, the learned Deputy Attorney‑General has submitted that the respondent could be granted seniority only from the date of his confirmation to the post of Superintendent of Police i.e. 24‑11‑1962 and not from the date of his officiation i.e. 11‑3‑1954‑‑the date from which he started his continuous officiation. The question, therefore, is whether the Tribunal was right in allowing seniority to the respondent in the Police Group from 11‑3‑1954, the date of his continuous officiation

According to section 2(2) of the Civil Servants Act 1973 an "appointment" is deemed to have been made on regular basis if it is made in the "prescribed manner" under section 2(f) "prescribed" means "prescribed by rules". According to section 8(4) of the Act "seniority in the grade to which a Civil Servant is promoted shall take effect from the date of regular appointment to a post in that grade" and under section 25 of the Act the previous rules shall continue to operate unless they are repealed, amended or otherwise inconsistent with the Act or the rules framed there under.

Now under Rule 3 of the Indian Police Service (Regulations of Seniority) Rules, 1936, the seniority of promoted officers is determined by the date of substantive appointment to a superior post and not from the date of officiation. See Bashir Ahmad Khan v. Mahmood All Khan PLD 1960 S C 195. Consequently, the Service Tribunal was not justified in according seniority to the respondent in the Police group with effect from 11‑3‑1954, the date of his continuous officiation as Superintendent of Police.

However, Mr. Zahurul Haq in his written, note submitted to us to supplement his oral arguments has pleaded in the alternative that admittedly the regular appointment of the respondent to the post of Superintendent of Police was on 24‑11‑1962‑‑the date he was duly confirmed thereto. He was, therefore, entitled to the fixation of seniority in Grade‑18 with effect from 24‑11‑1962 till date, with consequential benefits of seniority and pro forma promotion.

We find that Mr. Zahurul Haq is on good ground here. In the petition for leave to appeal filed by the Federation of Pakistan in this Court, it has itself taken up the position that the respondent could be granted seniority from the date of his confirmation to the post of Superintendent of Police i.e. 24‑11‑1962 and not from the date of his officiation i.e. 11‑3‑1954 and the date relevant for purposes of counting his seniority in Grade‑18 is 24‑11‑1962, when he was confirmed to the post of Superintendent of Police in Grade‑18. Furthermore, as pointed out by Mr. Zahurul Haq, the respondent after competing in the competition for lateral entry in 1975 improved his grade step by step i.e. first to Grade‑19 and then to Grade‑20 and did not jump from Grade‑18 to Grade‑20. Moreover, he was not posted to any post in the Secretariat Group and is still having a permanent lien in the police Group which lien has neither been suspended nor terminated, nor is the respondent willing to terminate his lien in the Police Group.

We, therefore, consider that the alternative plea raised on behalf of the respondent that he is entitled to the fixation of his seniority in Grade‑18 from 24‑11‑1962 till date with all consequential benefits has force and must be accepted.

The upshot is that the appeal is allowed to the extent that the direction contained in the impugned order of the Service Tribunal that the respondent should be accorded seniority in the Police Group from 11‑3‑1954 i.e. the date of his continuous officiation as Superintendent of Police is hereby set aside. However, the respondent is found entitled to the fixation of his seniority in Grade‑18 in the Police Group with effect from 24‑11‑1962 till date with all consequential benefits like seniority etc.

This appeal is allowed in the above terms but since the success is divided, both the parties are left to bear their own costs.

M. Y. H. Appeal allowed.

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