1998 P L C (C.S.

) 871
[Supreme Court of Pakistan]
Present: Nasir Aslant Zahid, Munawar Ahmad Mirza and Abdur Rehman Khan, JJ
KHALID RASHID SHAHBAZ
versus
FEDERATION OF PAKISTAN and others
Civil Appeal No. 844 of 1993, decided on 29th April, 1998.
(On appeal from the judgment dated 3-7-1993 passed by the Federal Service Tribunal,
Islamabad in Appeal No. 161(R) of 1992).
(a) Civil Servants Act (LXXI of 1973)---
----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 3---
Constitution of Pakistan (1973), Art. 212(3)---Merger of autonomous body viz. Pakistan
National Centre with Information and Broadcasting Division through notifications---
Incumbents of posts in Pakistan National Centre automatically became members of
information group---Combined tentative seniority lists were prepared and circulated---
Competent Authority on recommendation of Sub-Committee of Standing Organisation
Committee on Career Planning ordered separate cadre of two Departments and separate
identity---Service Tribunal dismissed appeal of employees of Pakistan National Centre
against non-merger of two groups--Validity---Leave to appeal was granted to consider
whether finding of Service Tribunal that no merger of two cadres had taken place was
erroneous and whether order of Prime Minister as Competent Authority was based on
factually incorrect report and that Service Tribunal should not have hesitated in interfering
with same.
(b) Civil Servants Act (LXXI of 1973)---
----S. 5---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R. 3---
Constitution of Pakistan (1973), Art. 212---Officers belonging to Pakistan National Centre---
Alleged merger into Information Group--Factum of merger disputed by the Government---
Effect---Source of office memorandum regarding inclusion of officers belonging to Pakistan
National Centre into Information Group was not disclosed by appellants---Nothing on record
suggested that appellants ever went through process of regularisation by adopting prescribed
methods---Appellants' reliance on tentative seniority list was not warranted, for such list was
issued only for ascertaining respective positions and objections, if any---Tentative seniority
list, except inviting attention for seeking correction, would not create any legitimate basis for
conferring right or ground for cause of action---Service Tribunal having dilated upon main
aspects of case, conclusions drawn by it in impugned judgment did not suffer from any
striking error or legal infirmity.
Fazal Ellahi Siddiqui, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-
Record for Appellant.
Maulvi Anwar-ul-Haq, Deputy Attorney-General with Ch. Akhtar Ali, Advocate-on-Record
for Respondents.
Respondent No. 4 in person.
Malik Muhammad Jaffar, Advocate Supreme Court for Respondents Nos. 6 and 11.
Applicant in person (in Civil Miscellaneous Appeal No. 987 of 1997)
Date of hearing: 24th April, 1998.
JUDGMENT
MUNAWAR AHMAD MIRZA, J.---This appeal is directed against judgment dated 3rd
July, 1993 passed by Federal Service Tribunal, Islamabad in Appeal No. 161(R) of 1992.
2. Relevant facts as asserted on behalf of appellant are that Pakistan National Centre was an
autonomous body prior to 23rd June, 1979 when it was declared as Government Department
under the administrative control of Information and Broadcasting Division enjoying status of
attached department. Ministry of Information and Broadcasting through two separate
notifications, namely, (i) No.3(47)/77-AD.1 (PB) dated 14th October, 1986 and (ii) S.R.O.
No.115(KE) of 1988 dated 25th September, 1988 framed rules applicable to the employees
of Pakistan National Centre and subordinate offices. However, Deputy Secretary to
Government of Pakistan, Establishment Division, on 9th July, 1987 issued office
memorandum No.2/1/86-GP.2., whereby officers of Pakistan National Centre were
included/merged in the information group, which is reproduced below:--
"Subject: Inclusion of Officers of Pakistan National Centre in the Information Group.
The undersigned is directed to refer to Ministry of Information and Broadcasting O.M.
No.2(9)86-IG, dated 4th November, 1986, on the subject and to inform that 22 officers may
be included from the date of their posts were included in the Information Group i.e. 2-6-
1979, as consequent upon inclusion of their posts of the Pakistan National Centre in the
Information group, the incumbents of the posts automatically became members of the Group
in the same capacity in which they hold these posts. However, such incumbents would retain
the same capacity in- which held the posts i.e. without changing the nature of their
appointment. On their regularisation in these posts vide rule 7 of the recruitment rules, they
could become regular members of the group from the date they were placed on regular basis
or from the date their posts were included in the Information Group, whichever is later.
(Sd.)
(M. Hashim Leghari) Deputy
Secretary to the Government of
Pakistan"
3. It is the case of appellant that after above inclusion/merger of the officers belonging to
Pakistan National Centre into information group of Ministry of Information, combined
tentative seniority lists of all the officers were prepared and circulated on 18th May, 1989
and 12 December, 1990 It has been asserted that appellant and twenty-one officers belonging
to Pakistan National Centre were regularised by Ministry of Information and Broadcasting,
Government of Pakistan, vide Office Memo. No. 2(9)/86-IG, dated 4th November, 1986.
Subsequently, pay scales and details with regard to regularisation were also specified by the
Ministry through office order No.3(47)/77-AD.I(Pt)(PNC). dated 3rd June, 1987. At this
stage it would be pertinent to mention that while issuing copies of these letters to
Establishment Division and Director-General, Pakistan National Centre. Islamabad, at item
No. 9, following note was also incorporated:--
"9 . D.G. PNC, Islamabad. The matter of induction of these officers in the
Information Group is under consideration in the Establishment Division/F.P.S.C. The
decision in this respect will be implemented accordingly as and when communicated."
4. It appears that respondents were aggrieved from the combined tentative seniority list dated
18th May, 1989 and 12th December, 1990, Respondent No. 4 categorically stated that
objections and representations were made to the authorities challenging alleged
inclusion/merger of appellant and others to Information Group. Record reflects that a Sub-
committee was constituted under Prime Minister Secretariat's directive vide U.O.No. 1813-
SO/ME, dated 10th September, 1991 to examine the grievance. Eventually, a detailed report
was submitted by the sub-committee towards the end of October, 1991, which was approved
by the Prime Minister and following decision was conveyed vide No. 1(5)/91-IG, dated 6th
November, 1991:--
SUBJECT: Report of the sub-committee of the standing organization committee on career
planning of information group.
The Prime Minister has been pleased to approve the recommendations submitted by the
sub-committee of the standing organization committee on career planning of Information
Group and authorised their immediate implementation. These recommendations inter alia
include:
(i) Increase of twenty two posts in the sanctioned strength of the Information Group (BPS-21,
two BPS-19, twelve, BPS-18, nine and BPS-17, Minus one), besides 20% of the posts as
leave/deputation reserve.
(ii) Pakistan National Centre will remain as an attached Department of' the Ministry and its
employees would continue in the separate cadre accordance with Recruitment Rules already
framed by the Pakistan National Centre. Pakistan National Centre employees shall neither be
posted nor promoted against Information Group posts and will receive their promotion
against the Pakistan National Centre's vacancies itself. Pakistan National Centre will
however be a dying cadre and all future vacancies for initial recruitment will be filled in by
the Information Group Officers.
(iii) Immediate steps are being taken for implementation of the recommendations of the
Committee, as approved by the Prime Minister."
5. Appellant felt aggrieved from said decision and filed Service Appeal No.161(R) of 1992
before Federal Service Tribunal, Islamabad on 30th March, 1992, praying for following
reliefs: --
" .... It is, therefore, prayed that it be declared:
(1) that the order of the Prime Minister No.l/5/91-IG, dated 6-11-1991 is null and void,
passed without lawful authority and is one without any legal effect whatsoever;
(2) that the P.N.C. continues to be a part and parcel of the Information Group;
(3) that the seniority list issued on 12-12-1990 is made final with the position of all the
P.N.C. officers including the appellant (at No.6) remaining intact.
It is further prayed that till the decision of this appeal, the promotions to B-19 and above be
made from the combined seniority list of 12-12-1990, giving proper benefit to P.N.C. officers
of their seniority, and for that purpose seniority list dated 20-1-1992 of B-18 officers be kept
out of reckoning.
It is still further prayed that a very early decision be given in the matter to avert a fight
between the now two cadres of the civil service and to save a whole class of P.N.C. officers
from being ruined or locked up in a long drawn litigation."
6. Private respondents contested the appeal and filed a detailed written statement. Several
preliminary objections concerning maintainability of appeal were raised. It was specifically
pleaded that appellant was never validly appointed, absorbed or inducted as civil servant
either under the provision of Civil Servants Act, 1973 or Civil Servants (Appointment,
Promotion and Transfer) Rules, 1973 coupled with Recruitment, Appointment Rules for
Information Group, 1988. It was explained that factually final seniority list was issued
through Memorandum No. l(1)/92-IG, dated 24th May, 1992 and Notification No.2(16)90-
IG, dated 31st August, 1992 showing separate seniority list and promotions of officers
relating to Information Group wherein officers/employees of Pakistan National Centre were
excluded. It may be pertinent to notice that said list was neither challenged by appellant, nor
by any other person belonging to Pakistan National Centre. The validity of alleged letter of
merger/inclusion of officers belonging to Pakistan National Centre into 'Information Group'
dated 9th July, 1987 has also been challenged. Respondents claim that alleged induction or
inclusion of the incumbents by allowing retrospective seniority, which affects their service
rights, apart from lacking legislative backing or legal sanction, was otherwise contrary to law
and rules.
7. The Tribunal, after detailed consideration of the main controversy, eventually dismissed
the appeal vide order dated 3rd July, 1993. On the same grounds Appeal No.162(R) of 1992
and 163(R) of 1993 were also dismissed.
Operative portion is reproduced below:-
8. After going through the facts and merits and arguments advanced by the parties, we
conclude as under:--
(i) That the appellants only challenged the provisional seniority lists of 18-5-1989 and
12-12-1990 which they had done without waiting for the final seniority list or final order.
This was an incompetent action of theirs, as they did not challenge/represent against the final
seniority list issued on 24-5-1992.
(ii) That the appellants did not challenge/represent against the promotion of valid group
officers i.e. private respondents against their promotion order issued on 31-8-1992. As such
their appeals were misconducted and incompetent.
(iii) That the appellants' induction to the group had not competently . , been made, as
indicated through letter dated 3-6-1987 and 9-7-1987 from the Ministry of Information and
Establishment Division.
(iv) That the appellants could not automatically become members of the Group, until and
unless a specific, administrative and competent order was issued in this regard with the
approval of the competent authority.
(v) That recommendations of the Sub-Committee of the Standing Organization Committee
were valid and P.M. was competent to approve the recommendations. Accordingly, letter
issued on 6-11-1991 by the M/o Information was in order.
9. The appeals are, therefore misconceived incompetent, without meaningful merit and
substance and these are accordingly dismissed. This judgment shall mutatis mutandis apply
to other connected Appeals Nos. l62(R) of 1992 and 163(R)f 1993."
8. The above judgment was assailed only by appellant M. Khalid Rashid Shahbaz through
Civil Petition for Leave to Appeal No.456 of 1993. Leave to appeal was granted vide order
dated 4th December, 1993; paragraphs 4, 5 and 6 of said order are reproduced below:--
4. The petitioner challenged the order of the Prime Minister in appeal before the Federal
Service Tribunal, praying:
"(1) that the order of the Prime Minister No. l/5/91-IG, dated 6-11-1991 was null and
void, passed without lawful authority and was one without any legal effect whatsoever;
(2) that the PNS continued to be a part and parcel of the Information Group;
(3) that the seniority list issued on 12-12-1990 was made final with the position of all the
P.N.C. officers including the appellant (at No.6) remaining intact."
By its judgment dated 25-5-1993, the learned Tribunal dismissed the appeal. The petitioner
seeks leave to appeal from this Court.
5. In support of this petition it is inter alia contended that the Sub-Committee entirely
overlooked the office memorandum No.2/l/86-CP.2, dated 9-7-1987, of the Establishment
Division which clearly stated that with the merger of the posts of the Centre in the
Information Group the incumbents of the posts in the Centre automatically became members
of the Information Group in the same capacity in which they held those posts. Thus, its
finding that no merger of the two cadres had taken place was palpably erroneous. As the
order of the Prime Minister was based on a factually incorrect report of the Sub-Committee
the learned Tribunal should not have hesitated in interfering with it.
6. The contention raised in support of this petition needs examination. Leave to appeal is
granted."
9. During pendency of the above appeal, Mr. M. Yousuf Aziz, an officer of Pakistan National
Centre, towards 5th September, 1997, submitted an application under Order V, Rule 2(2)
read with Order XXXIII, Rule 6, of the Supreme Court Rules, 1980 for impleadment, which
was, however,' kept for consideration. Similarly, another application of the similar nature
was, submitted by Najma Farooqi on 1st October, 1997. M. Yousuf;" who appeared in the
Court on 24th April, 1998, frankly conceded that he became aware of the order passed by the
Prime Minister on subject matter of challenge in the present appeal during year 1993, but he
did not file representation or service appeal. It is also matter of record that some of the
officers belonging to Pakistan National Centre, who had filed Appeals Nos. 162(R) of 1992
and 163(R) of 1993 have not challenged the same before this court and said order against
them has already attained finality.
10. Mr. Fazal Ellahi Siddiqi, learned Advocate Supreme Court for appellant, contended that
officers/employees of Pakistan National Centre were included and merged into Information
Group by conscious decision dated 9th July, 1987 by Establishment Division of the Cabinet
Secretariat, Government of Pakistan; that Rules of 1986 and 1988 were framed by the
Ministry of Information and Broadcasting through Notifications dated 14th October, 1986
and 25th September, 1988 regulating appointments and transfer of the officers/employees of
Pakistan National Centre, who had been absorbed in the Information Group; that combined
tentative seniority list was twice issued, which reflected conscious action of the Government
towards amalgamation/merger of the officers belonging to the above-referred categories; that
officers/employees of Pakistan National Centre were placed at the disposal of the
Information Ministry and inter se transfers of the members of the Information Group and
attached department were effected, but the impugned judgment does not effectively dilate
upon the real impact of the above circumstances; and that the Tribunal acted illegally in
declining to set aside decision of Prime Minister's Secretariat vide No.l/5/91-IG, dated 6th
November, 1991 and in failing to uphold the inclusion/merger of appellant as member of
Information Group.
11. Respondent No.4, Ahsan Yusuf Khan, appeared in person and contended that Pakistan
National Centre was never statutory body and during all material times was nothing more
than a private registered body under Societies Acts, 1912 and 1925 and even the Notification
of Establishment Division dated 23rd June, 1993 clearly discloses that Recruitment Rules
were required for regulating services of officers appointed on ad hoc basis in Pakistan
National Centre; that the Office Memorandum No.2/1/86-CP, dated 9th September, 1987 did
not have any legislative backing or sanction and was issued by incompetent authority without
adopting prescribed method, therefore, has no legal validity; that rights of the respondents
who were regularly appointed as members of Information Group could not be adversely
affected by allowing seniority to the incumbents of the non-Governmental post with
retrospective effect and decision in this regard, if any, is repugnant to basic rights available to
civil servants; and that after passing of the order by Prime Minister's Secretariat on 6tb
November, 1991, a separate list of respondents, who are members of information Group, has
been issued, which was never challenged by the appellant at any stage of the proceedings.
12. Moulvi Anwarul Haq, Deputy Attorney-General, affirming above legal points argued that
the tentative seniority list did not create any legal right in favour of either party, therefore,
same could not be made basis of claiming any relief. He further contended that there is no
specific order by competent authority under any provision of law whereby the services of
officers belonging to Pakistan National Centre were validly merged into Information Group,
therefore, appellant cannot base his claim on mere casual actions of some of the Government
officers who otherwise were not competent in that behalf. Malik Jafar affirmed the above
stand and adopted the arguments.
13. We have minutely examined the available record and considered the arguments addressed
before us. Firstly, it may be seen that the source of Office Memorandum No.2/1/86-CP.2,
dated 9th July, 1987 regarding inclusion of officers belonging to Pakistan National Centre
into Information Group is not disclosed anywhere. Additionally, regularization of officers
belonging to Pakistan National Centre was subject to Recruitment Rules. There is absolutely
nothing on record which may indicate that appellant ever went through the process of
regularization by adopting prescribed methods. It was for appellant to substantiate that the
authority issuing office memorandum had any legislative backing or legal sanctity for
directing merger/amalgamation of the officers belonging to two separate and distinct groups.
Secondly, it may be seen that the main thrust of arguments rests upon the combined tentative
seniority list; inter se transfers of officers from attached department to Information Group
and vice versa and doctrine of locus poenitentiae. It is well-settled that tentative seniority list
is issued only for ascertaining the position and considering objections, if any, raised by the
persons being affected so that a final list, which has element of reliability, be prepared and
circulated. Tentative seniority list, except inviting attention for seeking correction, does not
create any legitimate basis for conferring right or basis for cause of action. Similarly, mere
factum of transfers unless power of merger has legal sanctity does not ipso facto provide
justification for claiming inclusion of the two distinct posts into single group. It is admitted
feature of the case that after communication of decision from Prime Minister Secretariat vide
No. l/5/91-IG, dated 6th November, 1991, the position stood rectified and independent
seniority list with regard to officers of Information Group was prepared in May 1992. Thus
factually above order stands implemented and objections raised on behalf of respondents
loses significance.
14. The learned members of the Tribunal have dilated upon the main aspects of the case and
conclusions drawn in the impugned judgment do not suffer from any striking error or legal
infirmity.
15. It may be mentioned here that applicant M. Yousaf Aziz despite knowledge had not
challenged the final seniority list issued on 24th May, 1992 wherein he was excluded from
the category of officers belonging to Information Group, therefore, he is not entitled to assert
any right by submitting application for impleadment specially after lapse of almost five
years. Besides, his case even otherwise is no better than appellant Khalid Rashid Shahbaz's
case.
For the above reasons, we find no substance in the appeal, which is dismissed. Parties are,
however, left open to bear their own costs.
A.A./K-18/S Appeal dismissed.