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Appeal No. 243(R) of 1984, heard on 8th January, 1987.

‑‑‑General Principles of Seniority (Statutory Provision), p. 148 Seniority of civil servants inter se‑‑Civil servants serving in two different departments‑‑Determination of seniority on merger of such departments‑ Principle of seniority stated‑‑Seniority of civil servants working in different scales of pay, held, would not clash at any stage‑ ‑Promotees of a particular year would as a class be senior to those appointed by direct appointment in the same year.

‑‑‑S. 4‑‑Civil Servants Act (LXXI of 1973), S. 12‑A‑‑Seniority of civil servant at time of merger of attached departments‑‑Determination of‑ Civil servants serving in two different grades of pay at time of merger of such departments, held, would have no cause of action to challenge seniority inter se‑‑Initial order of appointment of a civil servant at time of merger even if was not according to Rules would be deemed to have been rectified by way of exclusion of such civil servant from purview of review under S. 12‑A of Civil Servants Act‑‑Appeal of civil servant being devoid of merit and also having been filed beyond period of limitation was rejected by Service Tribunal.

Fazal H. Choudhry for Appellant.

Respondent No. 2 in person.

Date of hearing: 8th January, 1987.

‑‑ The appellant, Muhammad Naim, Assistant Technical Wing, Ministry of Petroleum and Natural Resources has come in appeal against the impugned order dated 25‑4‑1984 rejecting his departmental appeal against the combined seniority list dated 22‑4‑1978 in which the appellant has been shown junior to respondent No.2, Mr. Riaz Ahmed Cheema, Assistant Incharge of the same Ministry.

2. The appellant was working as U.D.C. in the Directorate General of Petroleum where he was appointed as L.D.C. on 21‑2‑1968. He was later promoted as U.D.C. and then promoted as Assistant on 18‑5‑1974.

3. At this stage the Ministry of Fuel, Power and Natural Resources had two Attached Departments i.e. Directorate General of Petroleum and Energy Resources Cell. respondent No.2, Mr. Riaz Ahmed Cheema, a temporary U.D.C. with effect from 1‑4‑1972 in the National Assembly Secretariat was appointed directly as Assistant in the energy Resources Cell with effect from 11‑3‑1974. The advertisement regarding the appointment of Assistant was to the following effect:‑

" Assistant: Rs.275‑20-375‑EB‑20‑475 EB 25‑600 (Grade No.1l).

Qualification: B. A./B.Sc. or Intermediate with five years continuous service as U.D.C./L.D.C. in Government Departments. Knowledge of typing desirable."

4. On 13‑12‑1977 the two Attached Departments of the Ministry of Fuel, Power and Natural Resources, as mentioned above, were merged together into Petroleum Commission of Pakistan. Therefore, the combined seniority of the ministerial staff was published on 22‑4‑1978. respondent No.2 was shown at serial No.2 whereas the appellant was shown junior at serial No.9 of the combined seniority list. It was strongly contended by the learned counsel for the appellant that the seniority list in question was wrongly drawn up in that the appellant was senior to respondent No.2 whereas he was shown junior without taking into consideration his seniority on various counts. It was further contended that the appellant did not claim any seniority over other staff members from serial No.3 to 8 because he had no dispute with their seniority. It was submitted that firstly, respondent No.2 was appointed directly as Assistant whereas the appellant was a promotee of the same year i.e. 1974 and, therefore, according to the General Principles of Seniority (statutory provision) page 148 ESTACODE 1983 Edition, promotees of a particular year shall, as a class, be senior to those appointed by direct appointment in the same year. The relevant rule i.e. departmental promotees vis‑a‑vis direct recruits is quoted below:

"Officers promoted to the higher grade in a continuous arrangement and as a regular measure in a particular year shall as a class be senior to those appointed by direct recruitment in the same year."

Therefore, the appellant by virtue of being promotee remained senior to the respondent No.2 and should have been shown as such in the combined seniority list at the appropriate place.

5. Secondly, it was contended that direct appointment of respondent No.2 was not according to the qualifications laid down in the advertisement for the direct recruits. respondent No.2 lacked the length of service as well as the academic qualifications as laid down. He is only an Intermediate. Also having entered the National Assembly Secretariat as U.D.C. on 1‑4‑1972, he had completed about one year and 11 months service on the eve of his direct appointment in the Energy Resources Cell on 11‑3‑1974 as against five years of service for an Intermediate. respondent No.2 was, therefore, not eligible for direct appointment under these circumstances. Therefore, since initial order is wrong, the whole series of orders passed thereon are also illegal, void and liable to be upset.

6. The learned counsel for the respondents submitted that respondent No.2 joined the National Assembly Secretariat as U.D.C. on 1‑4‑1972 where he served for about two years in that capacity. He later applied for the job of Assistant in response to the advertisement cited above in the Energy Resources Cell under the Ministry of Fuel, Power and Natural Resources. As a result he was selected direct as Assistant and appointed with effect from 11‑3‑1974. At this stage the seniority of the ministerial staff working in the Directorate General of Petroleum and Energy Resources Cell was maintained separately. However, when these two Departments were merged together on 13‑12‑1977, respondent No.2 who was already working as Assistant Incharge in B‑14 was shown at the appropriate place of Serial No.2 in the seniority list published on 22‑4‑1978. At this point of time the appellant was still working as U . D. C. But later promoted as Assistant with effect from 18‑5‑1974 in B‑11. Therefore, the fact is that the seniority of 'respondent No.2 and the appellant did not clash at any stage because both were working in different scales of pay as brought out above. If, however, respondent No.2 had not been promoted as Assistant Incharge in B‑12 then probably a case could be made out under the General Principles of Seniority (statutory provision) page 148 ESTACODE 1983 Edition, as quoted earlier. The position cannot be, altered at this belated stage.

7. As regards the contention regarding the appointment of respondent No.2 being irregular, it was submitted that respondent No.2 was appointed as Assistant with effect from 11‑3‑1974. His case fell within the purview of section 12‑A of the Civil Servants Act, 1973. Even if the initial order of the appointment of respondent No.2 was not done according to the rules it would be considered to have been rectified by way of exclusion of respondent No.2 from the purview of review under section 12‑A of the Civil Servants Act. The irregularity, if committed, in the appointment of respondent No.2 stands condoned. It was further stated that the appellant has himself admitted that he challenged the seniority list issued on 22‑4‑1978 by way of representation to the competent authority on 30‑12‑1981. His representation was rejected on 25‑4‑1984. The appellant did not appeal against the original seniority list within the statutory period of 120 days to be counted with effect from 30‑12‑1981. He also did not appeal against the appellate order dated 25‑4‑1984 within 30 days of its communication. Therefore, the appeal is liable to be rejected being hopelessly time‑barred.

8. We have perused the record presented by the Department and also given serious consideration to the arguments stated above. We feel that there exists no clash of seniority between the appellant and respondent No.2 because at the time of merger of the two Attached Departments i.e. Directorate General of Petroleum and Energy Resources Cell, they were serving in two different grades of pay. Also the case of irregular appointment of respondent No. 2 stands condoned as explained by the learned counsel for the respondents. The case is even hopelessly time‑barred. The appeal is accordingly rejected without any order as to costs.

A.A/363/Lb/S

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