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Appeal No. 392(R) of 1984, decided on 6th July, 1985.

---S. 4--Civil services--Seniority, determination of--Civil servant transferred from one post to another equivalent post, under general rules, held, would get his seniority from date of his appointment to such other post and not from date of his previous appointment--Only exception would be where a civil servant was transferred from one Division to another Division alongwith post, work and duties.

---S. 4--Fundamental Rules, &.426--Abolition of post--Rights of civil servant selected for discharge from service owing to abolition of post- Government, held, was not bound to give any appointment to a person who had been selected for discharge owing to abolition of even a permanent post--Government, however, could provide such civil servant with equivalent post, but if it was not possible, he would be entitled to compensation, pension or gratuity--Such civil servant could be appointed to another establishment even on a lower pay--Provision of Fundamental Rules though not specific with regard to seniority but relatable to pension only, envisage that a retrenched civil servant has no right whatsoever for absorption to equivalent post, and if so absorbed, the action of Government would be as a matter of grace--Such civil servant could not be given terms and conditions to affect other persons adversely.

---S. 4--Civil service--Seniority, determination of--Retrenched civil servant absorbed in another Division having no right to adversely affect seniority of a regular employee thereof, grant of seniority to such retrenched civil servant was set aside by Service Tribunal in appellate jurisdiction.

Amir Akbar Khan for the State.

Respondent No. 3 in person.

Date of hearing: 30th May, 1985.

- In this appeal, there is contest of seniority in B-18 between the appellant, Sarfraz Khan Jadoon and Muhammad Yousuf Chohan respondent No.3, herein.

2. The appellant joined the Ministry of Education as Technical Assistant on 31-8-1963, after having been selected by the Federal Public Service Commission. He was promoted to the post of Research Officer on 20-1-1973 in N.P.S.-17. He earned further promotion as Senior Research Officer, N.P.S.-18, with effect from 16-4-1977. Respondent No.3 was originally a confirmed employee of the Province of Punjab. He was selected and appointed directly in N.P.S.-18 in the Department of Weights and Measures, under the Ministry of Industries on 23-11-1973. On 1-4-1980, he was transferred to the Ministry of Education as Senior Research Officer in N . P . S. -18.

3. Respondent No. 3 having been placed senior to the appellant, the latter has come up in appeal before us. Though some preliminary objections were taken in the written objections, they were not argued before us. The question to be determined is whether on the facts and in the circumstances of the case, the appellant has a right to be placed senior to respondent No.3, or not.

4. On the directive of the President, the Cabinet Division on 7^th November, 1979, issued a letter to all the Secretaries, wherein it was stated that all establishments, as a measure of economy, be suitably pruned. It was also mentioned that the persons rendered surplus as a result of pruning will, unless otherwise adjusted, be carried on a separate pool to be administered by the Establishment Division and will either be progressively absorbed in other posts or retrenched in due course.

5. In pursuance of the aforesaid policy letter, the Ministry of Industries in 1979 decided to abolish the Department of Weights and Measures, where respondent No.3 as already stated, was serving in N . P . S . -18. When the Establishment Division received the information, it issued a letter on 24-9-1979, stating, inter alia, that respondent No.3 and other employees of the Weights and Measures Department shall become surplus after 30-10-1979. The Ministries and Divisions were requested to absorb such persons in an equivalent post. The Department was, however, abolished on 30-6-1980. Before that, respondent No.3 was accepted by the Ministry of Education for appointment to the post of Senior Research Officer (B-18) with effect from 1-4-1980 vide their letter, dated 5-4-1980.

6. The appellant having been promoted in the Ministry of Education as Senior Research Officer (B-18), with effect from 16-4-1977, claims seniority over respondent No.3, who actually joined the said Ministry as Senior Research Officer (B-18) with effect from 1-4-1980.

7. While placing respondent No.3 senior to the appellant, the date of the former's actual appointment in B-18 in the Department of Weights and Measures was taken into consideration. That date, as already stated, is 23-11-1977 and is prior to the date of promotion of the appellant in B-18, which was 16-4-1977. The case of the Government and that of respondent No.3 is that respondent No.3 was given seniority from the date of his initial appointment in B-18 under the Federal Government and in pursuance of the direction contained in Office Memo., dated 7-6-1980 issued by the Establishment Division. This Office Memo. refers to the absorption of surplus staff in accordance with the directive of the President communicated to the Ministries and Divisions by the Cabinet Division vide their letter, dated 7-11-1979, already referred to above. In the Office Memorandum of 7-6-1980, para. 3(h), which has been relied upon, reads as under:-

"The previous service of the regular surplus personnel shall be counted towards seniority in the cadre/post, if absorbed against an equivalent post and their pay shall be fixed under normal rules in consultation with the Audit/Finance Division."

The learned counsel for State and respondent No.3 have argued that since respondent. No.3 was appointed under the Federal Government in a scale equivalent to that of Senior Research Officer earlier than the appellant, he had a right to be placed senior.

8. On behalf of the appellant, it has been argued that respondent No.3 being a confirmed employee of the Province of Punjab and having a lien on his post there, was liable to reversion according to his terms and conditions of service, and that the Federal Government was not bound to absorb him in accordance with the directive to the President. There is some substance in the argument, inasmuch as, if the Cabinet Division's letter is read as a whole, it would show that the intention was to absorb, as far as possible, the surplus staff, and if absorption could not be affected, then they should first be transferred to the Establishment Division on a surplus pool to wait for availability of posts, and if no post becomes available for a particular person, he should be retrenched in due course. The Cabinet Division letter does not refer to giving of seniority to the surplus staff nor it envisages the responsibility of the Federal Government to absorb each and every person. In spite of that the Establishment Division vide their Office Memorandum of 7-6-1980, in para. 3(h), already referred to, provided for giving seniority to the surplus staff on absorption. This Office Memorandum was issued on the basis of Cabinet Division's letter, which, as already stated, does not deal with the question of seniority. The principles laid down in the Office Memorandum do not appear to have received the approval of the President who is the rule-making authority in respect of civil servants. Para. 3(h) ibid. therefore, does not have any statutory force.

9. The appellant's claim that respondent No.3 should be reverted to the Province of Punjab cannot be accepted, inasmuch as, the Federal Government has decided to absorb him under it in spite of the fact that the letter of Cabinet Division, dated 7-11-1979 in spirit intended that such persons should go to their parent departments. We cannot direct that he should be reverted to the Province of Punjab. Despite that, the absorption of respondent No.3 under the Federal Government should not have been made in such a way, so as to affect the right of another person. Had respondent No. 3 been given seniority in the Ministry of Education with effect from the date of his appointment there, there would have been no controversy. A person transferred from one post to another equivalent post, under the general rules, gets his seniority from the date of his appointment to such other post and not from the date of his previous appointment. The only exception probably would be where a person is transferred from one Division to another Division alongwith post, work and duties. In the present case, the duties under the Ministry of Industry were quite different from those which were under the Ministry of Education. Respondent No.3, therefore, could not be placed senior to the appellant having joined the Ministry of Education much later.

10. The order of the Government placing respondent No.3 senior to the appellant also offends the spirit F.R. 426, which under the heading COMPENSATION PENSION reads as follows:-

'If an officer is selected for discharge owing to the abolition of a permanent post he shall, unless he is appointed to another post the conditions of which are deemed by authority competent to discharge him to be the least equal to those of his own, have the option:-

(a) of taking any compensation pension or gratuity to which he may be entitled for the service he has already rendered, or

(b) of accepting another appointment or transfer to another establishment even on a lower pay, if offered, and continuing to count his previous service for pension.

(c) of accepting another appointment on such pay as may be offered and combining to count his previous service for pension.

This provision clearly shows that the Government is not bound to give any appointment to a person who is selected for discharge owing to the abolition of even a permanent post. The Government can provide him with an equivalent post, but if it is not possible, he shall be entitled to compensation pension or the gratuity. He can also be appointed to another establishment even on a lower pay. This provision though not specific with regard to seniority, but relatable to pension only, envisages that a retrenched Government servant has no right whatsoever for absorption to an equivalent post and if he is so absorbed, the action of the Government is as a matter of grace. He cannot be given terms and conditions which affect other persons adversely.

11. In view of what we have stated above, we accept this appeal, and direct that the appellant be placed senior to respondent No.3, by altering the date of respondent No.3 to the post of Senior Research Officer, N.P.S.-18 from 23-11-1973 to 1-4-1980.

A.A./347/Lb/S

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