[Appellate Jurisdiction]

Present: SHAFIUR RAHMAN, ABDUL QADEER CHAUDHRY AND RUSTAM S.SIDHWA, JJ

Ch. ABDUL GHAFOOR
Versus
COLLECTOR, CENTRAL EXCISE AND LAND CUSTOMS, LAHORE and others

Civil Appeals Nos. 130,131 and 132 of 1984, decided on 20.9.1990

[From judgment and order of Federal Service Tribunal, dated 9.1.1983, passed in Service Appeals Nos. 110(R)/1981, 197(R)/1980 and 87(R)/1981 respectively].

Seniority–
—Government servants-Seniority of-Determination of-Statutory rights of civil servants, prior to enactment of Civil Servants Act, i9/3, had to be determined by conditions then prevailing and not by provisions of Rules or Acts subsequently made-During period from 1957 to July 1959, examinations held for post of Deputy Superintendent, Central Excise and Land Customs, were not qualifying examinations but were examinations to prepare a Select List of candidates awaiting promotion—Held: It will not be correct to say that. Seniority-cum-fitness was always basis for promotion or that selection was criteria that prevailed and not a competitive examination and a Select List— C.A. 130/1984 abated and CA. 131 and 132 of 1984 dismissed.
[Pp.84&85]A,B,C&D PLD 1972 SC 127 and 1982 SCMR 888 distinguished.

Mr. Zaheer Ahmad Klian, Advocate, Supreme Court and Mr. Ejaz Ahmad
Klian, AOR (absent) for Appellant (in CA. 130 and 131/84).
Mr. Muhammad Afzal Siddiqui, Advocate, Supreme Court and Mr. Manzoor
Ilahi, AOR for Appellant (in C.A. 132/84).
Ch. Akhtar Ali, AOR for Respondent (in all appeals).

Date of hearing: 9.5.1990.

JUDGMENT

Shafiur Rahman, J.–Leave to appeal was granted under Article 212(3) of the Constitution to examine the following questions of law arising in the above three appeals, out of which one appeal (CA.No.130/1984) on account of appellant’s death has since abated:-“(0 Whether the Tribunal could in 1980 treat seniority to be a vested right by reference to a rule of seniority of earlier date and not of the date when it was claimed in the face of Section 8 of the Civil Servants Act which expressly says that seniority shall not be a vested right of a civil servant?

(ii) Whether the Service Tribunal could justifiably hold a qualifying examination for promotion to be a competitive examination and determine the rights of Civil Servants qualifying at the examination as if they qualified in competition and not on the principle of eligibility alone?
(iii) Whether Muhammad Anis Khan respondent No.l was not himself affected adversely by the accepting once of the principle by the Federal Service Tribunal that those who passed the examination before the policy letter of the Board of Revenue dated 10.7.1959 could alone qualify for the benefit when he qualified after 10.7.1959?

(/v) Whether there has been any departure from the principle of selection and seniority-cw/72 -fitness at any stage so as to create any right such as may be enforcible under the law”.

2. The dispute in these appeals relates to seniority in the grade of Deputy Superintendent, Central Excise and Land Customs. In 1976, a provisional seniority list of the Officers of this grade appeared which was challenged before the Service Tribunal but was adjudged to be provisional and hence the appeals before the Tribunal pre-mature. Subsequently, two seniority lists appeared; one on 13.11.1980, also called ‘provisional and the other on 15.1.1981 which was expressed to be ‘final’. This seniority list aggrieved the respondent in C.A.131/84, Muhammad Anis Khan, and Qazi Waheed-ud-Din appellant in C.A.No.132/84. The appeal of Muhammad Anis Khan was accepted by the Tribunal whereas that of Qazi Waheed-ud-Din dismissed.
3. The controversy which has now come up before this Court lies in a narrow compass. It is with regard to the nature of the departmental examinations prescribed and conducted from February, 1957 to 10th of July, 1959 and the rights of those who qualified in examinations held during that period. A more extensive reproduction of the various letters having bearing on the subject is to be found in the Tribunal’s Order under appeal, but the relevant portions of the same are being reproduced in this order to make the background intelligible and clear. By a letter dated 20th of April,1956, the Central Board of Revenue took a decision as hereunder:- “The Board for some time had under consideration of giving a suitable status to the Deputy Superintendent of Central Excise and Land Customs in the Central Excise Collectorates and it has been decided that this post should be re-classified as Class-II non-gazetted with effect from the date of these orders”.

On 5th of December,1956, the Central Board of Revenue issued a policy decision as hereunder-

“The Board had decided that henceforth the Inspector of Central Excise & Land Customs will be required to qualify in a promotion examination for selection as Deputy Superintendent. The syllabus and Rules for the Promotion Examination are being forwarded by the Board separately. Promotion to the grade of Deputy Superintendents will be made henceforth in the light of decision mentioned above”.

On 21st February,1957, the details of the Promotion Examination were circulated: In it also it was provided (hat “only those Inspectors who qualify at this Examination will be eligible for selection as Deputy Superintendents in the Department”. A fact noted by the Tribunal and also spelt out from the record of an earlier decision of this Court in the Central Board of Revenue, Government of Pakistan Vs. Mr Asad Ahmad Khan (PLD 1960 S.C.81) was that during the period under consideration i.e., February 1957 to July, 1959, the Departmental Selection Board stood abolished. The Inspectors who qualified at the examinations were picked up in order of seniority assigned in the examination as and when the vacancies of Deputy Superintendents of Central Excise and Land Customs came into existence. There was no element of selection apart from the examination result, intervening during this period. In the Supreme Court judgment this has been expressed in the following words:-
“In the beginning of 1957 the Departmental Promotion Committees were abolished and selection for promotion to the newly-created post of Deputy Superintendent in Class-II was based solely on the result of competitive examination held by the Department which was open to all Inspectors of Central Excise and Land Customs”.
The Service Tribunal has also proceeded on this assumption of fact. It is correct, previous to this period and subsequent to this period there happened to be a Selection Board which exercised powers with regard to make a selection from amongst those who had qualified at the examination. When the Departmental Selection Boards/Committees were revived after July, 1959, they treated those Inspectors who-had qualified at the examination held between February,1957 and July,1959, and had not been promoted to the rank of Deputy Superintendents in the same manner as were treated those who qualified after July,1959. This controversy which was brought before the Tribunal namely, whether those who qualified during this period had to be treated in the same manner as those who qualified subsequently or in a manner different.
4. he Tribunal has held that those who qualified during the period February, 1957 to July, 1959 an examination had distinction inasmuch as they had a
vested right to be promoted as Deputy Superintendents as and when the vacancy came into existence without any intervention of further selection while those previously qualified or subsequently qualified had to undergo a process of selection and qualification at the competitive examination was not sufficient by itself to entitle them to get promoted to the rank of Deputy Superintendent.
5. The learned counsel representing the appellant has relied on two decisions of this court on the cases of seniority of the same Department relatable to most the same period to contend that no vested right can be claimed or could be granted. These decisions are Muhammad Suleman Klian Vs. Pakistan through
he Secretary, Ministry of Finance (Revenue Division), Government of Pakistan & 10 others (PLD 1972 SCMR 127) (?) and S^bdul Ghaffar Wasli Vs. Tlie Collector of Central Excises and Land Customs and others (1982 SCMR 888).
6. The various methods by which recruitment or promotion to higher posts can take place may be any one of the following: –
(/) Seniority alone; (//) Seniority-cum-fitness; (HI) Selection alone;
(/v) Merit at a competitive examination; and
(v) Selectees’ list of persons prepared under any of the above Rules.
Seniority alone had never been the criteria in the Department for promoting Inspectors to the rank of Deputy Superintendents. It was mostly seniority-cum-fitness; seniority being a matter of record and fitness being adjudged by reference to their record of service, interview or other test or examination, all included. Pure selection was also not the basis ever for promotion to the rank of the Deputy Superintendent of Customs and Excise. A competitive examination has the distinctive feature of having no fixed marks for appointment to the higher grade. Those securing top positions are appointed against the existing vacancies and the left over have to take the subsequent competitive examinations. Passing at one competitive examination does not preclude or create any right in respect of subsequent competitive examinations. In that sense, the competitive examination prescribed during the period February,1957 to July,1959 was not really competitive. It was competitive in the sense that those qualifying at the examination were brought on a Select List of Inspectors awaiting appointment as Deputy Superintendents as and when the vacancies occurred. This List had to be exhausted before the successful candidates of any subsequent similar examination could come up for consideration for promotion. It is this last system of Select List prepared on the basis of a prescribed competitive examination that the promotions were being made out of the List, without having further selection made out of it during the period February,1957 to July,1959. Once a person was brought on the Select List he was not required to undergo any further Selection . nor was he tq be superseded by any subsequent year Selectee. In that sense a. vested right had accrued to a person who had been brought on the Select List against those qualifying examination competitive or otherwise subsequently.
6. As regards the period preceding and the period subsequent to the period in dispute, it was not a Select List which was prepared but a List of persons eligible for consideration for promotion and a process of selection had further to intervene as between those eligible after clearing the examination and this distinguishing feature made their claim not at all a vested one but dependent on the process of selection which had to be undergone.
7. As regards the first question on which leave to appeal has been granted, section 8 of the Civil Servants Act provides that seniority shall not be a vested right. Nevertheless in recognising the rights of seniority before and after the enforcement of the Civil Servants Act, instructions of the Establishment Division (Serial No. 155, page 221/222 ESTACODE, 1989 Edition) provide, as hereunder:- “In the case of groups where the cadre has not been amalgamated with any other cadre, the seniority in different grades as determined under the previous rules before the promulgation of the Civil Servants Ordinance, 1973 (15.8.1973) shall not be disturbed. However, seniority of persons promoted to higher grades after 15.8.1973 shall be determined strictly in accordance with the provisions of sub-section (4) of section 8 of the Civil Servants Act,1973”.I 8. In view of this circular/instruction of the Government, the seniority rights lof the Civil Servants prior to the enactment of the Civil Servants Act had to be determined by the conditions then prevailing and not by the provisions of the Rules or the Acts subsequently made. On the facts narrated it is clear that the examinations held from 1957 to July,1959 were competitive whereby those passing that examination were placed on a Select List in order of seniority earned in the examination and got promoted in order of seniority as and when vacancy occurred, without intervention of any further selection, qualification or condition. In view of that situation prevailing during that short period, it was not a qualifying examination but an examination to prepare a Select List of candidates awaiting promotion. It was prior to that period and subsequent to that period, that the examinations were held to be qualifying examinations, making the persons passing those examinations only eligible, awaiting further selection by the Departmental Selection Committee or Interview Board, for promotion. The rights under the two systems were different and its distinguishing features are there which actually distinguish the two cases earlier decided by this Court where examinations were taken to be the qualifying examinations and not competitive with a view to prepare a Select List.
9. As regards the date and year when Muhammad Anis Khan, respondent o.l in Civil Appeal No.131/84 qualified, the record presented before this Court is not very consistent. For example, in one of the Lists presented before us he is shown to have passed the competitive examination on 31.5.1960. In another List his year of qualifying in the examination is shown as 1959. This being a factual question, would require the attention of the Central Board of Revenue and the result will follow in the light of the judgment given by the Service Tribunal with regard to the period covered by the decision.
10. An impression has been created that as soon as this system of competitive examination and Select List was adopted, a departure had to be made therefrom the light of the decision of the High Court in Asad Ahmad Khan’s case, when the Training Section of the Central Board of Revenue made slight amendments in the Rules. No doubt such an impression is created by the amendments which were introduced but the fact remains that there was no Selection Board for making promotions from February,1957 to July,1959 and the merit list prepared at the examination without any further scrutiny was adopted as the basis for making promotion to that extent. Therefore, it will not be correct to say that the seniority-cum-fitness was always the basis for promotion or that Selection was the criteria that prevailed and not a competitive examination and a Select List.
11. In view of these findings, the two appeals C.A.No.131/1984 and 132/1984 are liable to be dismissed. In the case of Qazi Waheed-ud-Din, (C A. 132/1984), we find that his qualification year is 1960 and it was a period subsequent to the Select List system. Therefore, he would not be entitled to the benefit as has been or could be claimed hose who passed the competitive examination held between February,1957 and July,1959.
12. The result of the above discussion is that the appeal of Ch Abdul Ghafoor (CA.No.130/84) stands abated. The other appeals (Civil Appeals No.131/1984 and 132/1984) are dismissed with no order as to costs.

(MBC) Appeals dismissed.

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