1993 S C M R 798

[Supreme Court pf Pakistan]

Present: Muhammad Afzal Zullah, CJ.,
Abdul Qadeer Chaudhry and Muhammad Afzal Lone, l!
Maj. (Retd.) MUHAMMAD MATLUB KHAN---Appellant
versus
GOVERNMENT OF PAKISTAN through
Secretaries, Establishment and
Defence Divisions, Islamabad
and 2 others---Respondents
Civil Appeals Nos. 258 and 259 of 1991, decided on 22nd December, 1992.
(On appeal from the judgment and order, dated 16-6-1991 of the Federal Service Tribunal,
passed in Appeal No.143(R) of 1990)..
Civil Servants Act (LXXI of 1973)---
----Ss.8. 2(b) & 23---Seniority---"Civil servant"---Definition---Person on deputation and
employed on contract was excluded from the purview of definition of "civil servant"---Appellant
joined the Intelligence Bureau on 1-7-1978 on deputation from the Ministry of Defence initially
for a period of two years and deputation period was extended from time to time until he retired
from the Army Service on 15-2-1983 and was absorbed as Assistant Director with effect from
the date of his retirement---Rules framed under the authority of Civil Servants Act, 1973
provided that a deputationist with three years approved service, could permanently be absorbed.
but there was no provision for regular induction of a person serving on contract and that too, by
adversely affecting the rights of the other civil servants---Induction Policy also expressly
ordained that the re-employed officer on contract will not have any seniority and will not be
placed on the regular gradation list---Held, appellant could claim seniority from the date of his
regular induction in the Intelligence Bureau i.e. w.e.f. 15-2-1983 and the respondent who had
joined the said Bureau on 25-10-1974 through Public Service Commission and was promoted as
Assistant Director w.e.f. 15-4-1982 was thus senior to the appellant
Muhammad lqbal Khokhar v. Government of the Punjab PLD 1991 SC 35 ref.
C.A. No.258 of 1991.
Bashir Ahmad Ansari, Advocate Supreme Court with Shah Abdur Rashid, Advocate Supreme
Court instructed by Ejaz Muhammad Khan, Advocate-on-Record for Appellant.
Faqir Muhammad Khokhar Deputy Attorney-General instructed by Ch. Akhtar Ali,
Advocate-on-Record for Respondents Nos.l and 2.
M.S. Siddiqi, Advocate Supreme Court instructed by Imtiaz Muhammad Khan,
Advocate-on-Record for Respondent No.3.
C.A. No.259 of 1991,
Faqir Muhammad Khokhar, Deputy Attorney-General instructed by Ch. _Akhtar Ali,
Advocate-on-Record for Appellants.
M.S. Siddiqi, Advocate Supreme Court instructed by Imtiaz Muhammad Khan,
Advocate-on-Record for Respondent No.l.
Bashir Ahmad Ansari, Advocate Supreme Court for Respondent No.2.
Date of hearing: 22nd December, 1992.
JUDGMENT
MUHAMMAD AFZAL LONE, J.---These two` appeals by leave to appeal, one filed by Major
(Recd.) Muhammad Matlub Khan (CA.258 of 1991) and the other by Federation of Pakistan and
others (C.A.259 of 1991), arc directed against the acceptance of appeal of Muhammad Jamil
Khan, respondent, by the Federal Service Tribunal vide its judgment, dated 16-6-1991.
2. The facts, as stated in the (cave grant order with the modification that he word `petitioner' is
substituted by the "appellant", arc reproduced below:---
"Major (Retd.) Muhammad Matlub Khan, and Federation of Pakistan, both, being aggrieved by
the same judgment, have filed these two separate petitions. However, Muhammad Jamil Khan
has not sought leave to appeal from the judgment, whereby he was denied the relief of setting
aside the notification dated 16-5-1989, against which he did not prefer a departmental appeal nor
did he prefer an appeal to the Service Tribunal against that order.
The facts giving rise to these petitions, as stated in the petitions and at the bar, are that Major
(Retd.) Muhammad Matlub Khan joined Pakistan Army on 24-11-1960 and was commissioned
on 21-4-1963. He was promoted to the rank of Major on 17-1-1970. He came over on
secondment to the civil post of Assistant Director, BPS-18, in the Intelligence Bureau with effect
from 1-7-1978, initially for a period of two years but the said period was extended from time to
time up to 15-2-1983, when he retired from the Army. From the same date he was re-employed
in the Intelligence Bureau on contract basis for a period of three years but, subsequently, the said
period was extended till 5-12-1988. By the notification dated 6-12-1988 he was inducted in the
Intelligence Bureau on regular basis with effect from 15-2-1983, the date when he retired from
the Army. Earlier the Intelligence Bureau had recommended to the competent authority that
since the appellant was continuously working .as Assistant Director with effect from 1-7-1978,
he be inducted in the civil post of Assistant Director from the same date. However, it was not
agreed to but it was done with effect from the date of Major (Retd.) Muhammad Matlub Khan's
first actual retirement from Army, that is 15-2-1983. It seems that Major (Retd.) Muhammad
Matlub Khan, on his representation, was allowed to retire from the Army with effect from
30-6-1978 and inducted on regular basis in the Intelligence Bureau by the notification dated
16-5-1989, with effect from 1-7-1978. The Intelligence Bureau circulated a Provisional Seniority
List of Assistant Directors on 8-1-1990 in which the appellant was shown at serial No.2 and
Muhammad Jamil Khan, respondent No.3, at serial No.6. This Provisional Seniority List was
objected to by respondent No.3. by making a representation to the Secretary, Establishment
Division, respondent No.l only claiming therein that the induction and absorption of the
appellant retrospectively with effect from 1-7-1978 was illegal for various reasons. He also
claimed seniority over the appellant in the cadre of Assistant Directors (BPS18) in the
Intelligence Bureau on the ground that he being appointee of the post through the Federal Public
Service Commission with effect from 25-10-1974 in BPS-17 and having been promoted to the
post of Assistant Director (BPS-18) with effect from 15-4-1982, ranked senior to the appellant,
who could not claim seniority over him in the cadre of Assistant Director.
The representation of respondent was rejected on 11-3-1990 whereupon he filed an appeal on
17-4-1990 before the Federal Service Tribunal."
3. The Intelligence Bureau was established in the year 1975. On 1-7-1978 when Major (Retd.)
Muhammad Matlub Khan (hereinafter called the appellant) came over on secondment to the
Intelligence Bureau as Assistant Director (BPS-18), the Recruitment Rules, 1976 "for posts in
Intelligence Bureau" were in force. These rules inter alia provided that a person serving in the
Intelligence Bureau, on transfer, and had rendered minimum approved service of 3 years, could
be absorbed permanently against the direct recruitment quota on the recommendations of the
Selection Board and with the approval of the appointing authority. These rules were superseded
by new rules promulgated w.e.f. 24-10-1981, which remained in force till December 1984, when
another set of Rules laying down method, clarification and other conditions for appointments to
BPS-17 and above in the Intelligence Bureau were issued. It may be stated that 1981 Rules were
silent on the mode of appointment by absorption. However, according to 1984 Rules a person
who had continuously served at least for 3 years on deputation in Intelligence Bureau, was
eligible for absorption against the post held by him in the direct recruitment quota. After such
induction he was to take his seniority from the date of absorption. The Tribunal made an
exhaustive reference to these rules in the impugned order and observed:--- (The, word
"respondent No.3" has been substituted by the "appellant")
"The absorption of the appellant in the Intelligence Bureau was, in the first instance, made with
effect from 16-2-1983, when the Rules of 1981 were in operation, and there was no provision
therein for appointment by absorption. Of course, there was provision in the 1976 Rules for
appointment by absorption of those persons who had served in the Intelligence Bureau on
deputation/secondment for at least three years and possessed requisite qualifications. The
appellant joined the Intelligence Bureau by way of secondment on 1-7-1978 and he could not be
absorbed in the Intelligence Burea earlier than the completion of his three years' service and
subject to the condition that he possessed requisite qualifications. Thus, the appellant could not
find his absorption in the Intelligence Bureau with effect from 1-7-1978 under the 1976 Rules
which were in the field at the relevant time. He could not find his absorption with effect from
16-2-1983 as there was no provision of absorption in the then existing rules of 1981. This is one
aspect of the case.
The second aspect of the case to be examined is whether the appellant could find permanent
footing in the Intelligence Bureau by way of induction. The induction of Army personnel in the
civil service policy was issued on 10-2-1980, published in ESTACODE (1989) at page 164. The
induction policy lays down three modes of entry of officers of Armed Forces in the civil service.
In the first category in the induction of young officers of Armed Forces of Pakistan up to eight
years commissioned service in accordance with the provisions contained in Chapter II of the
Policy. In the second category for induction in the civil service are the officers of the rank of
Major or equivalent, who were to retire or had retired on completion of the prescribed age or
service limit in the manner and procedure provided therefore, contained in Chapter III of the
Policy. In the third category are the officers of the rank of Major or equivalent who were to retire
or had retired before completion of prescribed age or service limit and the retired officers of the
rank of Lt. Colonel and above and equivalent who could be absorbed by re-employment in
accordance with the provisions of Part IV of the Policy. The case of the appellant did not fall in
the first category of the young officers."
The second aspect of the case is that:---
"The appellant held the rank of a Major in the Army at the time of his secondment to the
Intelligence Bureau. He retired from the Army service on 15-2-1983 on completion of requisite
service in the Army. His case for induction in the civil service on his retirement from the Army
was, therefore, to be regulated in accordance with Part III of the Policy issued on 10-2-1980,
published in ESTACODE (1989) at page 164. His induction was to be made there under through
the High Powered Selection Board that was to be constituted by the President for the purpose. He
could count his seniority in the grade in which he was inducted from the date of his induction. As
regards his induction from 1-7-1978 from which date he sought his retirement from the Army, he
was deemed to have retired permanently and his induction was to be regulated in accordance
with the provisions of Part IV of the Policy, which provides that the officers of the rank of Major
or equivalent who retired or may have retired before completion of the prescribed age limit or
service were eligible for re-employment on contract for three to five years renewable up to the
age of sixty on the terms and conditions mentioned therein. The terms and conditions laid down
there under provide that the re-employed officers will not have any seniority and would not find
place on regular gradation list. In that eventuality, the appellant could not have the benefit of
induction in the Intelligence Bureau and he could be treated to have been appointed on contract
he could not have even that much benefit as the induction policy was issued on 10-2-1980. In
fact, his appointment on contract after his retirement from the Army in 1983 was in keeping with
law that prevailed at that time and the case of his induction seems to have been processed
keeping aside the relevant rules and orders and the legal position does not seem to have been
highlighted in submitting the case to the competent authority for obtaining orders.
The legal position portrayed above would show that the appellant was not eligible for induction
in the civil service at any time muchless after his appointment in the civil service on contract
after his retirement from the Army service in the year 1983 and he is not entitled to have any
place in the seniority, list."
As the respondent (Muhammad Jamil Khan) had not sought removal of the Notification dated
16-5-1989, his appeal was allowed to the extent that a direction was given that the appellant shall
not override the seniority position of the respondents.
4. The facts are not in dispute. The particulars of service of both the sides have been correctly
given in the impugned judgment. Admittedly, the appellant joined the Intelligence Bureau on
1-7-1978 on deputation from the Ministry of Defence initially for a period of two years. The
deputation period was extended from time to time, until he retired from the Army service on
15-2-1983. As stated earlier, vide Notification, dated 16-12-1988, he was absorbed as Assistant
Director (BPS-18) with effect from the date of his retirement. This absorption appears to be in
line with Rule 6 of 1976 Rules, which permitted permanent absorption against direct recruitment
quota of the persons serving in Intelligence Bureau on transfer and holding at least three years'
minimum approved service to their credit. Thereafter, the appellant was re-employed on contract
w.e.f. 15-2-1983, in the first instance for three years. Subsequently, the contract was extended up
to 15-2-1988. During his service on contract basis in suppression of Notification dated
6-12-1988, in pursuance of the directive of the Prime Minister's Secretariat, as already noted,
vide Notification dated 16-5-1989, the appetent was absorbed as Assistant Director (PBS-18) in
the Intelligence Bureau against direct quota retrospectively w.e.f. Ist July, 1978. This was wholly
illegal, for, 1980 Rules did not cater for such absorption and under both 1976 and 1984 Rules at
least three years approved service with the Intelligence Bureau, on transfer, was the condition
precedent for such regular induction. Thus, looked from any angle, the appellant could neither
qualify for absorption from a date earlier than completion of three years approved service, nor
his seniority be reckoned from Ist July, 1978. It may be pointed out that, according to the
definition of the term "civil servant" given in section 2(b) of the Civil Servants Act, 1973,
persons on deputation and employed on contract are excluded from the purview thereof. Of
course, in pursuance of the rules framed under the authority of the Act, a deputationist with three
years approved service, could permanently be absorbed, but there was no provision for regular
induction of a person serving on contract and that, too, by adversely affecting the rights of the
other civil servants. We entirely agree with the Tribunal that the prohibitions imposed by law on
regular induction of the appellant w.e.f. Ist July, 1978; were not brought to the notice of the
Prime Minister when the directive culminating in Notification, dated 16-5-1989, was procured
from him. It appears that his attention was also not drawn to para. 24 of the induction policy
dated 10-2-1980 which expressly ordained that "the re-employed officers on contract will not
have any seniority and will not be placed on the regular gradation list".
5. The learned counsel for the appellant, however, urged that clause "b-ii" of section 2 relating to
the exclusion of persons employed on contract from the definition of the term "civil servant"
would apply only if his service was commenced on contract basis, but there is no lawful ground
for such an assumption. He also referred to section 7 of the Federal Public Service Commission
Ordinance, 1977, Rule 15 of the Rules of Business, 1973 and section 23 of the Civil Servants
Act, 1973, to justify the appellant's absorption retrospectively. We find that section 7 ibid
empowers the Federal Public Service Commission to conduct tests and examinations of persons
other than officers of the Armed Forces for their appointment for All Pakistan Services, Civil
Service of the Federation and other posts in connection with the affairs of Pakistan. We are
unable to discover as to how these provisions can be of any nail to the appellant. Likewise, rule
15 has no bearing on this case. Reliance on section 23 is also inapt. While construing section 22
of the Punjab Civil Servants Act, 1974, which is para materia with section 23, in Muhammad
Iqbal Khokhar v. Government of the Punjab (PLD 1991 SC. 35) it has been maintained that the
Governor has to act justly and fairly. The grant of seniority in exercise of the powers vesting in
him under section 22 which was in violation of the rights of the others, conferred on them by
law, was not held permissible, It has already been observed that the appellant's permanent
absorption and grant of seniority to him w.e.f. 1-7-1978 is not countenanced by service laws.
Moreover, section 23 confers powers on the President and there is nothing on the record that the
orders on which the appellant's claim is founded had also the blessings of the President.
6. It is noteworthy that the appellant never objected to his employment on contract from
16-5-1983 to 15-12-1988, rather he himself solicited such an employment. He fully knew that his
such employment did not qualify him to acquire the status of civil servant i.e. why he asked for
regularization of the period of service, he remained on contract, but there was no room for such
regularization in law. Upon the Rules regulating the seniority, envisaged by section 8 of the Civil
Servants Act, the appellant could claim seniority from the elate of his regular induction in the
Intelligence Bureau i.e. w.e.f. 15-2-1983. The respondent joined the Intelligence Bureau as
Assistant Director on 25-10-1974 (BPS-17) through Public Service Commission and was
promoted as' Assistant Director (BPS-18) w.e.f. 15-4-1982. He was thus senior to the appellant.
The only relief claimed by him in the appeal before the Tribunal was regarding his seniority and
this relief was rightly given to him.
There is no merit in these appeals, which are hereby dismissed leaving the parties to bear their
own costs.
M.BA./M-1728/S Appeal dismissed.