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Appeal No. 116(R) of 1981, decided on 11th December, 1986.

‑‑‑S.25‑‑Civil Servants Ordinance (XIV of 1973), S.25‑‑Rules made under Civil Servants Laws‑‑Prospective‑‑All rules made under Civil Servants Act or Civil Servants Ordinance, held, had to be construed with prospective operation and not with retrospective operation.

‑‑‑S.8‑‑Civil Servants Ordinance (XIV of 1973), Civil Service of Pakistan (Composition and Cadre) Rules, 1954, R.37‑‑All‑Pakistan Services (Change in Nomenclature) Rules, 1973‑‑Seniority of C.S.P. Officers‑ Rules affecting seniority‑‑Application of rules‑‑All rules affecting former Officers of C.S.P. would be applicable to situations existing after enactment of Civil Servants Ordinance, 1973 and Rules made thereunder‑‑Seniority of C.S.P. Officers in All‑Pakistan Unified Grades, held, could not be distorted‑‑Any seniority to which a Member of Grades was entitled before constitution of Secretariat Group could not be destroyed by any subsequent change in principles of seniority‑‑By making a provision in relevant Office Memorandum, that seniority should count from date an officer became Deputy Secretary or was promoted to Grade‑19, whichever earlier, distortion in seniority of other Federal Services was removed, but in case of C.S.P. Officers this formula could not work as there was no scale comparable to Grade‑19 (Junior Administrative Grade) and C.S.P. Officers used to be promoted to Joint Secretary's Grade from senior C.S.P. scale comparable with Grade‑18, and post of Deputy Secretary was never a promotion post in cadre‑‑Thus if after coming into force of Civil Servants Act, an officer of former C.S.P. who was senior to his colleagues working as Deputy Secretary in Secretariat, but an officer who was working in a Province and elsewhere, would, when brought to Secretariat later, retain his seniority vis‑a‑vis his colleagues‑‑In other words, if an officer of former C.S.P. was appointed as Deputy Secretary in Secretariat sub‑group. within All‑Pakistan Unified Grades, he would count his seniority from date he completed eight years of service if any of his colleagues junior to him had already been promoted‑‑Respondent Government applying said principle in case of respondents 2 and 3 and declaring them senior to appellant in All‑Pakistan Unified Grades/Secretariat sub group‑‑Respondents 2 and 3 could, therefore, be considered for promotion prior to the consideration of appellant.

Muhammad Amir Akbar Khan for the State.

Respondents 2 and 3 (absent).

Dates of hearing: 9th, 10th, 16th and 17th October, 1985.

‑‑The appellant, M. Ramizul Haq, was serving the Federal Government since 21 December, 1964, after having been selected for the post of Section Officer by the Federal Public Service Commission. In 1975, he was selected for the post of Deputy Secretary by method of appointment commonly known as 'Lateral Entry" and was officiating in that capacity since 15th October, 1975. Dr. Muhammad Arif and Mr. Shakeel Ahmed, respondents 2 and 3, who originally belonged to the defunct‑C.S.P. were serving as Deputy secretaries since 29th October, 1976. In the seniority list published in 1976, the appellant was shown at Serial No. 238, while respondents 2 and 3 were at Serial No. 294 and 297 respectively. Both these respondents were promoted to the post of Joint Secretary with effect from 23rd November, 1980, ignoring the appellant whose name in the seniority list was initially placed higher. Apprehending that his name was not sent to the Central Selection Board for appointment as Joint Secretary, the appellant made a representation on 14th February, 1981, in order to know whether his name had been placed before the Central Selection Board alongwith the names of respondents 2 and 3, who had been selected, despite being junior to him in the cadre of Deputy Secretary the appellant, however, did not receive any reply to his representation. Presuming that his name was not sent to the Selection Board alongwith the names of respondents 2 and 3 for promotion (at this stage, we light say that the presumption of the appellant was correct, because the fact was never denied by the respondents), the appellant filed the present appeal before the Tribunal, and prayed as follows:‑

(i) That respondent No.1, i.e. that Establishment Division be directed to submit the case of the appellant to the Central Selection Board for consideration for promotion to Grade‑20 as Joint Secretary in retrospect vis‑a‑vis those who are junior to the appellant as per Gradation List circulated in June 1976, and who have been promoted to Grade 20; and

(ii)That on his selection for promotion to Grade 20 as Joint Secretary, the appellant should be deemed to have been promoted with effect from the date the promotion was due in order of the seniority of the appellant in Gradation List of Secretariat Group (Grade 20) as circulated in 1976.

Thus the main grievance of the appellant is that he having joined as Deputy Secretary prior to respondents 2 and 3, was entitled to be promoted in preference to them, and that his case should have been placed before the Central Selection Board much earlier and at the latest by the time respondents 2 and 3 were considered for selection to the post of Joint Secretary in Grade 20.

2. Respondent No.1, the Establishment Division alone contested the appeal by filing a written statement justifying the promotion of respondents 2 and 3 prior to that of the appellant. It was stated that respondents 2 and 3 were senior to the appellant and had been so shown in the latest seniority list of 1979. It was, inter alia, pleaded that some officers of the C.S.P. serving in the Provincial Governments had wrongly been shown junior to the Deputy Secretaries of that service who were serving under the Federal Government. This, according to respondent No.1, created an unjust distortion in the inter se seniority of the former C.S.P. officers. It was also contended that the seniority of the former C.S.P. officers in the cadre could not be disturbed vis‑a‑vis, their own colleagues, as the Civil Servants Ordinance enacted on 15‑8‑1973 and the Rules made thereunder after its enactment specially the amendment of C.S.P. (Composition and Cadre) Rules, 1954, had not retrospective effect.

3. At the time of arguments, parties were on debate on the issue whether the list of 1976 was provisional or final and whether that could be changed subsequently in 1979. It was also contended on behalf of the appellant that in a case pending before the Supreme Court, the list produced by respondent, No.1 was different from that on which it is relying in the present appeal. This debate, in our opinion, is not material; for if respondent No.1 had been referring to different seniority list before the Supreme Court, that fact forms a separate issue. The substance of the present appeal, in our opinion, is whether an officer belonging to the former C.S.P. who incidentally was not serving as Deputy Secretary under the Federal Government, while his juniors were so serving, could on his appointment as Deputy Secretary be given seniority in the cadre of Deputy Secretary over those C.S.P. officers who were junior to him, but had joined as Deputy Secretary earlier.

4. The substance of the respondent's case is that members of the former C.S.P. who had a recognised seniority inter se had to be dealt with judiciously so that their original seniority in the cadre of C.S.P. is not disturbed. It was contended that respondents 2 and 3 were placed senior to the appellant, because their colleagues in the C.S.P. cadre already serving as Deputy Secretary had wrongly been shown junior to the appellant and several others. The intention was to keep intact the original seniority of the C.S.P. officers while being brought on the list in the Secretariat Group.

5. The learned counsel for respondent No.1 has argued that the appeal is not competent, because the prayer now claimed before the Tribunal was not the subject‑matter of his departmental representation. We have gone through the representation made by the appellant on 14‑2‑1981. No doubt, it does not specifically contain the prayer now made before us, nevertheless, when the representation is read as a whole, it would show that the main grievance of the appellant was that his name had not been considered for promotion to the post of Joint Secretary in Grade 20 in preference to respondents 2 and 3, who were allegedly junior to him. The preliminary objection, therefore, has no substance.

6. During the course of arguments, it was brought to our notice that a good number of officers of the former C.S.P. had been posted as Deputy Secretaries to the Federal Government after they had completes; 8 years of service in accordance with the then prevailing practice which was given statutory status by the provisions of the Rules made by S.R.O. 1238(1)/73, dated 21‑8‑1973, under rule 3 of the Civil Service of Pakistan (Composition and Cadre) Rules, 1954. It was explained that since a number of officers junior to respondents 2 and 3 in the cadre of C.S.P. had been appointed Deputy Secretaries under the Federal Government, the said respondents were made senior to them after giving them presumptive seniority in the cadre of Deputy Secretary from a date their next junior in the C.S.P. cadre was appointed to the post of Deputy Secretary. It was contended that this was done in order to remove the distortion in the seniority of the former C.S.P. officers and that had it not been so done, then many officers of the C.S.P. who were not at the relevant time serving as Deputy Secretaries under the Federal Government would have become junior to those officers of the C.S.P. who were junior to them in the C.S.P. cadre but had been posted as Deputy Secretary earlier than the appointment of their seniors on completion of 8 years service in accordance with the then existing Rules. The intention, it was stated, was to keep intact the seniority of the C.S.P. officers as originally fixed in the cadre under the Rules then in force.

7. On behalf of the appellant, it was contended that after the enactment of the Civil Servants Ordinance, 1973, the seniority had to be determined in accordance with section 8 of the Civil Servants Act and that it was immaterial if a former C.S.P. officer had or had not been serving as Deputy Secretary when the Lateral Entry Examination was held and officers were appointed as Deputy Secretary. According to the appellant, the cadre of C.S.P. having become defunct since 1973, no one could claim seniority on the basis of his emplacement in the former C.S.P. Cadre. The appellant referred to the Establishment Division Office Memo. No. 2/2/75‑ARC, dated the 12th April, 1976, reproduced at page 766‑768 at Serial No.18, under the heading "Secretariat Group" in ESTACODE 1983 Edition, wherein it is provided in para 8, that seniority of a Deputy Secretary shall reckon from the date of his continuous regular officiation as Deputy Secretary or in a post in Grade‑19, whichever is earlier. Reference was also made to para 3 (ii) of office memo. No. 2/2/75/ARC, dated 21‑2‑1975 (page 73 Part IV of the booklet "Administrative Reforms"), wherein it was provided that the post of Deputy Secretary could be filled in by a person who has rendered 12 years service in Grade‑17 and above. The appellant contended that in view of this clear authority, it was not possible or legal for the Government to promote respondents 2 and 3 from a date when they had rendered only 8 years of service even though their juniors had already been promoted on 8 years service formula.

8. On behalf of the Government, it was urged that prior to formation of Secretariat Group, Officers of C.S.P. Cadre were appointed as Deputy Secretary irrespective of seniority on the basis of suitability and availability and that all officers in senior scale (now Grade‑18) were eligible for appointment as Deputy Secretary if they had completed 8 years service. The post of Deputy Secretary for C.S.P. Cadre was never a promotion post and all senior scale C.S.P. officers irrespective of their seniority could be appointed Deputy Secretaries on completion of 8 years service in junior C.S.P. and senior C.S.P. scale. The post of Deputy Secretary, it was argued, was a tenure post for fixed maximum period and Deputy Secretaries had to go back as Deputy Commissioners, w etc. if the exigencies of service so required.

9. It appears to us that in the first instance cadres of C.S.P. and P.S.P. existed on All‑Pakistan basis. There was no other service which could be called as All‑Pakistan Service. Article 240 of the Constitution requires that All‑Pakistan Services can be created only by an Act of Parliament. No order or instruction can take the place of Act of Parliament. It was, perhaps, for this reason that no separate Cadre of APUG was formed. Rules 3 to 7 of the C.S.P. (Composition and Cadre) Rules, 1954. were amended. In new rule 3 ibid, it was provided that appointment to the Cadre post (first C.S.P. and then APUG) is to be made by the President in accordance with the Rules made by him 'for this purpose. It was also provided by way of amendment that every person not being a Member of the Service, who is appointed to a Cadre post in accordance with the Rules, shall, on appointment to that post, subject to approval of the President, become a Member of the Service. By promulgation of All‑Pakistan Services (Change in Nomenclature) Rules, 1973, the names of the Civil Service of Pakistan and Police Service of Pakistan, which were the only two All‑Pakistan Services, were changed to All‑Pakistan Unified Grades, and all persons who immediately before coming into force of these Rules were Members of the C.S.P. or P.S.P. were appointed in their existing posts to All‑Pakistan Unified Grades. It appears that the question of seniority was not examined when persons not being Members of the Service were appointed to APUG with the approval of the President vide Notification No. 1/1/73‑ARC, dated 14‑9‑1973. Nevertheless, the seniority lists were prepared of the Deputy Secretaries and Joint Secretaries, etc. and they included only those officers of the former C.S.P. who at the relevant time were serving against these posts. At that time, the Rule for appointment of the Deputy Secretaries was that a C.S.P. Officer who had completed 8 years service could be appointed as Deputy Secretary. No doubt, subsequently by Office Memo. No. 3/7/74‑AR.II, dated the 20th May, 1974, 12 years period was provided for Grade‑19 and for horizontal movement of Grade‑18 officers to the post of Deputy Secretary vide para 3 of Office Memo. No. 2/2/75‑ARC, dated 21‑2‑1975, but this deviation on the length of service is immaterial as far as C.S.P. Officers are concerned. Their names already existed as Members of C.S.P. and subsequently of APUG. Their seniority was to be changed in accordance with some principle and not by making any rule affecting their vested right. All Rules made under the Civil Servants Act or the Civil Servants Ordinance have to be construed with prospective operation and not with retrospective operation. All those Rules which affect the former Officers of the C.S.P. have to be applied for the situations existing after the enactment of the Civil Servants Ordinance, 1973,11 and the Rules made thereunder. The seniority of the C.S.P. Officers in APUG could not, therefore, be distorted. Any seniority to which a Member of the Cadre was entitled before the constitution of Secretariat Group, could not be affected by the provisions of section 8(4) of the Civil Servants Act, 1973. In other words, the seniority of such a person cannot be destroyed by any subsequent change in the principles of seniority. By making a provision in the relevant Office Memorandum that seniority shall count from the date when an officer becomes Deputy Secretary or is promoted to Grade‑19, whichever is earlier, the distortion in the seniority of other Federal Services was removed, but in case of C.S.P. Officers this formula could not work as there was no scale comparable to Grade‑19 (Junior Administrative Grade) and the C.S.P. Officers used to be promoted to the Joint Secretary's grade from Senior C.P.S. Scale which is comparable with Grade‑18, and the post of Deputy Secretary was never a promotion post in the Cadre. Thus, in our opinion, if after the coming into force of the Civil Servants Act, an officer of former C.S.P. who was senior to his colleagues working as Deputy Secretary in the Secretariat, but an officer who was working in the Province or elsewhere would, when brought to the Secretariat later, retain his seniority vis‑a‑vis his own colleagues. In other words, if an, officer of the former C.S.P. is appointed as Deputy Secretary in the Secretariat Sub‑group, within APUG, he would count his seniority from the date he completes 8 years of service if any of his colleagues junior to him had already been promoted. It is this principle which the Establishment Division has applied and we think that this is a proper course by which the distortion in the seniority can be removed.

10. For the reasons stated above, we hold that respondents 2 and 31 were senior to the appellant in APUG and hence the Secretariat Sub‑group, and, therefore, they could be considered for promotion prior to the consideration of the appellant.

11. At the end, the appellant argued that the impugned decision was taken mala fide in order to help particular persons belonging to a particular service. This allegation has not been established, and we have found from the record that all decisions were taken by the Establishment Division after obtaining independent legal advice.

12. For the reasons stated above, we dismiss this appeal but without any order as to costs.

13. This order is ex parte as far as respondents 2 and 3 are concerned.

M.Y.H./361/Lb.S

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