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Civil Petition for Leave to Appeal No. 410-R of 1985, decided on 6th November, 1985.

(On appeal from the judgment of the Federal Service Tribunal, dated 31-8-1985, in A. No. 490(R) of 1984).

---Art. 212(3)--Civil Servants Act (LXXI of 1973), S. 8--Seniority- Government department revising seniority list on basis of principle declared by Service Tribunal in a case concerning a different department--Change in petitioner's seniority and consequential reversion--Service Tribunal disposing of petitioner's appeal on basis of its earlier decision--Order impugned--As correctness or otherwise of basic judgment was under consideration in another case before Supreme Court, and in view of substantial questions of law raised, leave to appeal granted.

Muhammad Umer Malik etc. v. Service Tribunal etc. Civil Appeal No. 82 of 1982 ref.

Raza Hussain Shamsi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 6th November, 1985.

-The petitioner entered Government service in the Office of Accountant-General Post Telegraphs and Telephones, Lahore, on 3rd August, 1948, as a Lower Division Clerk (BPS-5). On passing the departmental examination, he was promoted as Upper Division Clerk (BPS-7) on 23rd February, 1954. The case of the petitioner is that there was no separate cadre constituted for the Selection Grade Upper Division Clerks and both types of posts, i.e. ordinary Upper Division Clerks and Selection Grade Upper Division Clerks constituted one and the same cadre of Upper Division Clerks.

2. With effect from 1st March, 1972, however, the scheme of National Pay Scales was introduced and Selection Grade posts in the Upper Division Clerks cadre were abolished, with the result that ordinary Upper Division Clerks and Selection Grade Upper Division Clerks were admittedly placed in the same cadre. Subsequently, with effect from 1st July, 1973, the Government reintroduced the scheme of selection grade in Upper Division Clerks cadre and prescribed 35% of the cadre as selection grade posts. As a sequel to this new arrangement the Upper Division Clerks were designated as Auditors (BPS-7) while the selection grade holders of the cadre were designated as Accounts/Audit Assistants (BPS-11). However, the petitioner maintains that notwithstanding the different nomenclatures both the Auditors as well as Accounts/Audit Assistants were treated as members of one and the same cadre of Auditors, previously known as Upper Division Clerks.

3. In September, 1970, the petitioner was granted the selection grade as Audit Assistant. On 26th August, 1981, he was promoted as Accountant Superintendent. (BPS-16). The petitioner submits that although a combined seniority list of officers holding posts of Auditors and Accounts/Audit Assistants was being maintained with reference to the date of their respective appointments/promotions as Auditors (Upper Division Clerks), the Auditor-General of Pakistan, vide order, dated 8th September, 1977, directed that, with effect from 10th August, 1977, posts of Auditors and Audit Assistants would be treated as belonging to separate cadres and separate seniority lists for the two types of posts would be maintained. He further directed that the promotion to the post of Accountant against 33% quota would also in future be made from the seniority list of Audit Assistants.

4. On the aforesaid date, namely, 10th August, 1977, the petitioner's name already appeared on the seniority list vis-a-vis his other colleagues as senior to all those who had come to be appointed as Auditors subsequent to his date of appointment, viz. 23rd February, 1954. According to him he was promoted on the basis of his position in the seniority list qua other officers who were appointed as Audit Assistants subsequent to him.

5. However, one Abdul Wahid of the Office of Director Audit and Accounts (Works) filed an Appeal No. 123/L/1980, before the Federal Set-vice Tribunal, in which with reference to his department he had maintained that Upper Division Clerks and selection grade Upper Division Clerks constituted two separate cadres and, therefore, seniority lists for these two posts should be separately maintained. He thus claimed seniority over his other colleagues with reference to the date of his original entry in the selection grade. Abdul Wahid's contention was accepted by the Service Tribunal and his appeal was allowed, with the result that the seniority list complained of by him was set aside.

6. Although the petitioner does not hold a post in the same department and was, therefore, not a party to the seniority list in that case, the Director-General, Pakistan Post Office, Islamabad, vide memo., dated 7th July, 1983, issued a directive that the Auditor-General's instructions be implemented and revised seniority lists prepared accordingly. He further directed that those officers whose seniority is affected as a result of the revised seniority list may be reverted from their posts. The said directive was issued on the basis of the judgment of the Service Tribunal, dated 5th January, 1982, in Appeal No. 123/L/ 1980, in the case of Abdul Wahid.

7. On 9th July, 1984, the Director-General of Pakistan Post Office, Islamabad, issued a seniority list upsetting the seniority of the petitioner as a consequence whereof he was threatened with reversion to the lower post. He, therefore, filed an appeal before the Federal Service Tribunal, Islamabad, contending that the decision of the Tribunal in Abdul Wahid's case, to which he was not a party is not binding upon him and could not furnish a basis for affecting his seniority. The Government on the other hand argued that since seniority in one of its offices was to be maintained in accordance with Tribunal's order, there was no other choice for it but to follow the same principle in other offices including the office in which the petitioner was working. It may be mentioned at this stage that in Abdul Wahid's case the Tribunal had held that while fixing the seniority, no distinction could be made between officers in the seniority lists, who were promoted prior to 15th August, 1973, and those who were promoted after that date. On the merits the petitioner contended before the Tribunal that the two posts constituted one cadre, whereas the Government maintained that the service structure had undergone a material change with the introduction of national pay scales since 10th August, 1977, with the result that the two posts now constituted two separate cadres. The learned Tribunal ultimately reached the conclusion that since the changed position of the petitioner on the seniority list and his consequential reversion are based upon the decision of the Tribunal in Abdul Wahid's case on interference was called for. The appeal of the petitioner was accordingly dismissed by order, dated 31st August, 1985. The petitioner being aggrieved by this decision seeks to call in question the same by this petition for leave to appeal.

8. The learned counsel for the petitioner has invited our attention to the case of Muhammad Umer Malik and others which was also decided by the learned Service Tribunal in the light of the orders passed in Appeal No. 123/L/80 (Abdul Wahid's case). This Court has granted leave to appeal in that case which is Civil Petition No. 181/82 Muhammad Umer Malik etc. v. Service Tribunal etc. (Civil Appeal No. 82/82). As the correctness or otherwise of the basic judgment of the learned Service Tribunal is under consideration in another case before this Court and in view of the substantial questions of law of general importance raised in this petition, we grant leave to appeal. The appeal shall be prepare dl on the present record but it will be open to the parties to file additional documents if any. The appeal shall be heard alongwith Civil Appeal No. 82/82.

9. So far as the miscellaneous application for interim relief we order notice to the respondents but status quo shall be maintained until the decision thereof.

M.I. Leave granted.

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