International Lawyer Law Firm: Acting Charge according to NHA Appointment and Promotion Rules 1995

PLJ 2000 Tr.C. (Services) 102 [Federal Service Tribunal, Islamabad]

Present: MUHAMMAD AYUB KHAN AND SYED MUHAMMAD ZAFAR BABAR, MEMBERS

GHULAM NABI MORAI etc.~Appellants versus

CHAIRMAN NATIONAL HIGHWAY AUTHORITY and others-Respondents

Appeals Nos. 14(R), 61(R), 62(R), 63(R), 64(R), 65(R), 73(R),74(R), 75(R), 80(R), 82(R), 891(R), 90(R) & 110(R) of 1998, decided on 31.10.1998.

(i) Civil Procedure Code, 1908 (V of 1908)-

—O. I, R. 3-Necessary party-Necessary party is one without which judicial matter could not be disposed of. [P. 105] B

(ii) National Highway Authority (Appointments and Promotions) Rules 1975--

—R. 11--Appointment on Acting Charge Basis—Seniority/Promotion- Appointment under S. 11(6) of National Highway Authority (Appointments and Promotions) Rules 1995, being on Acting charge basis does not confer any right for promotion on regular basis, includingseniority. [P. 108] D

(Ui) National Highway Authority (Appointments and Promotions) Rules 1975--

—R. 11-Civil Service-Seniority list-Challenge to--Entitlement--Seniority list showed that appellant (civil servant) was junior in all respects to respondents as far as his appointment to B-18 was concerned-Appellant was not entitled to file appeal against seniority list in circumstances. [P. 119] E

(iv) National Highway Authority (Appointments and Promotions) Rules 1975--

—R. 11—National Highway Authority Employees Service Rules, 1995 R. I— Service Tribunals Act (LXX of 1973), S. 4~No employee of subsequent date could be made senior to appointee inducted earlier-Principle of seniority-cum-fitness has been kept in view as per National Highway Authority (Appointment and Promotion) Rules, 1995-Principle of seniority had rightly been maintained-No controversy whatsoever with - respect to determination of seniority of employees has been pointed out whether regular or work charge for the reason that seniority reckons from the date of regular appointment and Rule contained in National Highway Authority (Appointment and Promotion) Rules, 1995, do not lack anything of the same were properly attended to and implemented-Federal Service Tribunal suggested that new sub-rule (3) be added after sub-rule (2) of R. 1 of National Highway Authority Employees Service Rules, 1995 to the effect that "National Highway Board Employees Service Rules, 1974, are hereby repealed'-Appeals relating to seniority list being not competent were dismissed in circumstances. [P. 120] H & I

(v) Service Tribunals Act, 1973 (LXX of 1973)--

—-S. 4~Civil Service-Provisional seniority list-Challenge to~Legally no exception/grievance could be made to Provisional seniority list and for the matter legal remedy in the form of filing appeal was not available. [P. 106] C

(vi) Statutes Interpretation of--

—In absence of superseding provision either in the Act or the Rules, legal construction/implication is that earlier law would stand superseded bysucceeding law for obvious reason that two laws on same points could not go side by side. [Pp. 104 & 119] A & G

Hafiz S.A. Rehman, Advocate for the Appellants (in Appeals Nos. 14(R)/98, 73(R)/98to 75(R)/98, 80(R)/98, and 110(R)/98.

Mr. Fazal Elahi Siddiqui, Advocate for Respondents Nos. 3, 4, 5, 6, & 9 in Appeal No. 14(P)/98, 3, 4, 5, 6, 7, 8, 9,10, 11, 12, & 13 in Appal No. 80(R)/98, 5, 17 & 23 in Appeal No. 74(P)/98 & Mr. Abdul Rehamn Bhatti, Advocate for Respondents Nos. 2, 4 & 17 in Appeal No. 74(P/98 and for 23, 24 & 38 in appeal No. 83(R)/98.

Shah Abdur Rashid, Advocate for the appellants in Appeals Nos. 63(R), 64(R), 65(R)/98, 89(R)/98 and 90(R)/98.

Mr. Pr. MushratAli Jami, Advocate for Respondent No. 2 in Appeal No. 64(R)/98, Mr. F.E. Siddiqui, Advocate for Respondents Nos. 3, 4, 5, 6,8, 9,11,12, & 13 in Appeal No. 65(R)/98, 7, 9,11,12,13,14,15 & 17 in Appeal No. 90(R)/98.

Syed Zaffar Abbas, Advocate for the Appellants in Appeals Nos. 61(R)/98 & 62(R)/98.

Mr. F.E. Siddiqui, Advocate for Respondents Nos. 3, 4, 6, 8, 9,10 & 12 in Appeal No. 61(R)/98 & for 3,4, 7, 8 & 12 in Appeal No. 62(R)/98.

Dr. G.S. Khan, Bar-at-law for Res. Nos. 11, 13, & 14 in Appeal No. 61 & 62/98 10, 12 & 13 in Appeal No. 65(R)/98, 3, 5, & 6 in (73(R)/98) 10, 12, & 13 (80(R)/98).

Sh. Iftekhar Ahmed, Advocate for National Highway Authority alongwith Mr. S. Altaf Hussain Bukhari, Deputy Director (Personnel), Departmental Representative in all the above mentioned appeals.

Dr. G.S. Khan, Bar-at-Law for Respondents No. 5, 6 & 7 in Appeal No. 110(R)/98.

Dates of hearing: 9.9.1998 to 11.9.1998.

JUDGMENT

Muhammad Ayub Khan, Member.-The learned counsel for the parties have been heard and record perused. 2. Before discussion of the aforesaid appeals, it is advisable to give a reference to the law prior to the enactment of the National Highway Authority Act, 1991 (hereinafter referred to as the Act) and the rules framed thereunder and known as National Highway Authority Employees Services Rules, 1995 (hereinafter called as the Rules) and such law was known as National Highways Board Employees Services Rules, 1974, framed under the powers delegated to the National Highways Board by the Federal Government under Resolution No. 4(l)SO-Indus/74 dated 4th December, 1974 and as per Rule 2 :1 thereof--

"i) all the employees in full or part time employment of the Board, including those who were on:

(a) contract basis; or

(b) re-employed; or

working either in the Board's Office or its subordinate Officers except those categories where statutory provisions for such categories existed" and Regulation No. 4(l)SO-Indus/74 dated 7th August, 1978.

3. It appears, if we are not wrong, that the Board's Rules of 1974 do not stand superseded either by the Act or the Rules and as such thereappears anomalous situation for the reason that ordinarily the succeeding jlaw supersedes the earlier enactment Anyhow in the absence of such

£• superseding provisions either in the Act or the Rules, as the case may be, the legal construction/implication is that the earlier law ipso facto stands superseded by the succeeding law for the obvious reasons that two laws on the same points cannot go side by side.

4. The definition clause (2) of the Rules indicates that the same definitions have been imported from the Board's Rules, 1974, within minor variations here and there and by such construction and legal implications the earlier Rules can be construed to have been superseded. It was contended before us that there was two categories of employees under the Board :--

(i) Who were employed/appointed against one hundred and forty six regular sanctioned posts, and the other (ii) work charge employees appointed on work charge basis against various Projects-posts.

They have been inter alia defined by Rule 2 (Definitions) of the Rules as under :--(c) "Employee" means a person regularly appointed by the competent

authority for service of the Authority, (o) "Permanent Post"means a post carrying a definite rate of pay sanctionedwithout limit of time.

(q) "Workcharge" means an employee appointed for a short period paid out of contingencies.

5. We had the privilege of hearing most experienced and SeniorAdvocates of the standing:--

(i) Mr. Justice (R)

Shah Abdur Rashid, who also remained Chairman, Federal Service Tribunal for two terms and now Advocate, Supreme Court of Pakistan.

(ii) HafizS. A. Rehman, Advocate, Supreme Court of Pakistan. (iii) Dr. G. S. Khan, Bar-at-Law. (iv) Mr. Abdul Rahim Bhatti, Advocate.

(v) Mr. Fazal Elahi Siddiqui, Advocate. (vi) Raja Muhammad Asghar Khan, Advocate. (vii) Sh. Iftekhar Ahmed, Advocate;

and perusing the opinions rendered by the Law and Justice Division as well as the Establishment Division which will be discussed to relevant stage.

6. In the wake of the above back-ground now we come down to discussion of the factual side of the appeals and prior to that the limitationaspect is examined first.
LIMITATION:

7. A scrutiny of all the appeals with respect to the limitation indicates that they have been filed within time except Appeal No. 110 (R)/1998 and as such all are declared within limitation excluding the said ; appeal. Examination of this last appeal, however, indicates that hone of the respondents has raised any objection to the point of limitation and in the absence of which we condone the delay merely in the ends of justice for ' equating the appellant with rest of the appellants and the respondents.

8. A crucial question under consideration in all the appeals is as to ' whether the seniority counts from the dates of regular appointments, if any,under the Board or from the date of notification of the Work Charge ) Employees and for determination of this crucial issue, facts of each appealwill have to be kept in view.

9. An argument was advanced specially by the learned counsel Mr. Abdul Rahim Bhatti, Advocate appearing on behalf of some of therespondents and further supported by Dr. G.S. Khan, Bar-at-Law, that the _rappeals were not property filed due to omission of necessary parties which,according to them, were the Ministry of Law and Justice Division as well as the Establishment Division on the ground of their tendering opinions in thecases. This objection is groundless in the sense that mere rendering of an opinion/advice by some authorities ipso facto cannot create ground for their "impleadment being, in no case, having played any role as authority or were instrumental in the disposal of the departmental appeals. Necessary party is

a one without which a judicial matter cannot be disposed of such as a party which has passed adverse order to the detriment of an appellant whereas in 3 the instant case both the Divisions simply rendered opinions which were not binding on the respondents, if any, warranted legally. In view of this situation we repel the objection so raised.

1. APPEAL No. 14(R)/1998

10. It is alleged that the appellant was appointed Director (B-19) on regular basis with effect from 30th April, 1994, by order dated 5th May, 1994, and Seniority Last was circulated on 8.3.1995 but none filed objections thereto and as such it had attained finality. Later on, Directors (B-19) were appointed on work charge basis under rule 20(2) of the Rules with effect from 9.3.1995 and another Seniority List was circulated on 21.5.1995 wherein the seniority of the appellant was kept in tact but in the impugned Seniority List dated 10.9.1997 the appellant earlier shown at Serial No. 4 was brought down to Serial No. 11 and thereby showed Respondents Nos. 2 to 8 senior to him while earlier they were shown at Serial Nos. 5 to 11 Le. junior to the appellant. The short answer to the above averments is that both the earlier Seniority Lists, referred to by the learned counsel for the appellant, were provisional and as a result of the objections earlier invited a
final Seniority List impugned under the appeal was prepared. Legally no exception/grievance can be made to a provisional Seniority List and for that matter legal remedy in the form of filing of an appeal is not available. There is no an iota of doubt about it due to the pronouncement of the superiorCourts.

11. The appellant (a B-18 Officer) was inducted to the National Highway Authority as Director (Engg) in B-19 with effect from 30.4.1994 byorder dated 5.5.1994 with the consent of the Sindh Government. The Audit Section of the National Highway Authority, however, raised an objection to
the regularization of the appellant and an irregular drawal of payment of Rs. 76,704/- vide order dated 29.10.1991 (at Page-232 of the file) and byorder dated 30.12.1991, it was indicated at its para-2 that since* the deputation of the appellant was under the direction of the former PrimeMinister of Pakistan, therefore, he was absorbed on deputation and approval through Establishment Division was simply a formality. It is to observe that
the Establishment Division vide OM dated 20.2.1991 had regretted its inability to agree with the proposal of the Communication Division regardingthe deputation of the appellant and then by OM dated 21.12.1991 the competent authority was pleased to repatriate the appellant to his parentGovernment with effect from 1.1.1992. Earlier he remained on deputation for a period from 21.11.1990 to 31.12.1991 and under letter dated 10.3.1992
(Page 236) it was observed that the competent authority was pleased to order repatriation of the appellant to his parent Department with effect from
1.1.1992 but it appears that all these orders were not complied with and on the contrary flouted grossly and the appellant lingered on deputation withNational Highway Authority and instead of repatriation he was promoted to B-20 with effect from 29.9.1995 in violation of the rules on the subject. Itappears that his case was not properly processed by the competent authority as required and he was thrust upon the said Authority.

12. A perusal of the impugned Seniority List indicates that all the respondents were inducted in between 2.2.1986 and 15.7.1990 to B-19 whereas the appellant was inducted in B-19 with effect from 30.4.1994 without observance of the legal formalities specially in spite of the serious objection raised by the Establishment Division which is the concerned Department in service matters, including the cases of deputationists etc. The appellant was initially inducted on deputation but later on he was ordered to be reverted to his parent Department i.e. Government of Sindh, due to many serious objections but instead of sending him back he was made to induct in B-19 as aforesaid and thereafter without formal process of his case by the requisite Selection Board/Committee, he was inducted to B-20 with effectfrom 24.9.1995 like all the respondents who were promoted from this date to B-20. As all the respondents are senior to him in lower grade i.e. B-19,therefore, the appellant can legally not compete with them.

13. It appears that the competent authority for promotion to B-20 and above is the President, National Highway Council under Rule 6 of theNational Highway Authority's (Appointments and Promotions) Rules, 1995, and Rule 3(1) thereof requires that :-- (1) Appointment of posts shall be made by any of the following methods, namely,

(a) by promotion in accordance with Chapter II of these Rules;and

(b) by initial appointment in accordance with Chapter-Ill ofthese Rules;

whereas Rule 10 in Chapter-II relating to the Appointment by Promotion lays down that:

"No promotion shall be made to posts unless the employee concerned has completed such minimum length of service as specified in Schedule-Ill."

and under Schedule-Ill, Serial No. 1, the minimum length of service foi promotion from B-19 to B-20 is as follows:

"SI. Post with Condition of

No. Basic Scale Eligibility

1. BS-19toBS-217 years in BS-17 and above, in case of initial appointment in BS-18 it will be 12 years and in case of initial appointment in BPS-19 it will be 5 years."

There is nothing on the file to show about the date of the appellant's induction in B-18 and in such like cases the appointment, if at all is required to be made, will be on Acting Charge Basis under Rule 11(1) of the said NHA (Appointments and Promotions) Rules, 1995 and such appointment under Rule 11(6) does not confer any right for promotion on regular basis, including seniority. Sub-rule (6) of Rule 11 reads:

"Acting charge appointment shall no mean an appointment by promotion on regular basis for any purpose including seniority." and as such his induction to B-19 shall be altogether eliminated and ignored. In view of this position all the respondents would rank senior to him in the lower grade i.e. B-19.

14. For the aforesaid discussion the appellant's appeal must fail.

2. APPEAL No. 61(R)/1998

15. A perusal of the impugned Seniority List available on the file,indicates that the appellant was initially appointed on :-

1.9.1975 to B-17.

23.3.1981 to B-18&

31.10.1995 to B-19

whereas all the respondents have been promoted prior to the appellant in B-18 and above and specially in B-19 which dates are in between 2.2.1986 to 15.7.1999. It also appears from the Seniority List that respondents, Khursheed Alam, M. Uzair Fail, Syed Najmul Hassan, Malik M. Aslam, Abdullah Mahesar, Mir Hassan Rind and S.A. Latif have been promoted to B-20 with effect from 24.9.1995 whereas the appellant is still in B-19 since 31.10.1995. Consequently this appeal must fail.

3. APPEAL No. 62(R)/1998

16. Similar are the facts of this appeal as have been mentioned earlier in Appeal No. 61(R)/1998 because as per the Seniority List dated10.9.1997 the appellant is junior to all the respondents to his appointment in B-18 (to B-18 with effect from 24.12.1981 and to B-19 from 31.10.1995) asagainst the respondents, namely,

1. Khursheed Alam,

2. M. Uzair Fazil,

3. Syed Najmul Hassan,

4. Malik M. Aslam,

5. Abdullah Mahesar and

6. Mir Hassan Rind.

who were directly appointed in B-19 with effect from 2.2.1986 (2 incumbents), 9.8.1987, 16.8.1987, 10.4.1990 and 27.5.1990 whereas S.A. Latif was appointed on 15.7.1990 and all these have been promoted to B-20 with effect from 24.9.1995. The appellant cannot on any count compete with the respondents and accordingly his appeal must also fail.

4. APPEAL No. 63(R)/1998

16. A perusal of the impugned Seniority Last dated 10.9.1997 (Pages K/2&3) indicates that the appellant Abdur Rauf Chaudhry was appointed to B-18 and B-19 with effect from 25.2.1988 and 31.10.1995 respectively whereas all the respondents though inducted in B-19 with effect from 31.10.1995 yet all of them are senior to him. The dates of appointments of the respondents are indicated below against their names :

SI. No.	Name	Appointment to BPS-18 BPS-19
1.	Tahir Ahmed Khan	1.8.1985 31.10.1995
2.	Sirajul Huda	1.8.1985
3.	Syed Raza Hamid Zaidi	3.11.1985
4.	Rasheed Ahmed Memon	20.4.1986
5.	Pervaiz Gul	15.3.1987
6.	Sadrul Ola Rizvi	19.7.1987
7.	S. M. Afzalur Rehtnan	2.8.1987 '
8.	Maqsood Hussain	9.8.1987
9.	Mujeeb Qadir	11.8.1987
10.	Muhammad Bashir	15.3.1987
11.	Arshad Mahmood	16.8.1987
12.	Atiq Ahmed	1.9.1987
13.	Muhammad Ramzan	4.9.1987
14.	Shaukat Hayat Khan	17.2.1988
15.	Mian Muhammad Asghar	22.2.1988
16.	YousafAli	24.2.1988
17.	Mukhtar Ahmed	24.2.1988 and
18.	{jaz Ahmed Chaudhry	24.2.1988

17. A bare perusal of the above statement shows that all the respondents are senior to the appellant in B-18 and as such his appeal mustfail.

5. APPEAL No. 64(R)/1998

18. A perusal of the impugned Seniority Lost annexed at Page 10-Aindicates that the appellant was inducted in B-18 and B-19 with effect from30.5.1993 and 22.8.1995 respectively whereas Respondent No. 2 was appointed to B-18 on 5.4.1990 but on the same date i.e. 22.8.1995 to B-19. As per mandatory requirement of Rule 17 of the Rules, reproduced hereunder, the incumbents, if having been promoted to the higher post on one and the same date, they will retain inter se seniority as in the lower cadre or post and viewed from this angle the respondent appears to have non-suited the appellant. Rule 17 of the Rules reads :

"17. In case where tow or more persons are promoted by direct recruitment in the same batch, the seniority shall be determined as under -

(i) inter se seniority as in the lower cadre or post shall be retained."

and hence the appeal must fail.

6. APPEAL No. 65(R)/1998

19. As per the impugned joint Seniority List dated 10.9.1997 for the incumbents in 8-20 and below (Page 10-A) the appellant was appointed toB-19 on 8.2.1995 whereas all the respondents have been inducted to B-19 from 2.2.1986 to 13.2.1990 and as such he appears to be most junior to therespondents. Consequently his appeal has no merits which is accordingly dismissed.

7. APPEAL No. 73(R)/1998

20. Our observations in this appeal are the same which we have expressed in Appeal No. 65(R)/1988 for the reasons that the appellant waspromoted to B-18 on 17.3.1977 and to B-19 on 31.10.1995 whereas all the respondents have been promoted to B-19 in between 2.6.1988 to 26.10.1992and as such the appellant cannot legally compete with them. This appeal, therefore, also fails and is dismissed.

8. APPEAL No. 74(R)/1998

21. A scrutiny of the impugned Seniority List at Page 10-A of the file indicates that the appellant and all the respondents were promoted to
B-18 with effect from one and the same date i.e. 31.10.1995. The appellant was appointed/promoted to B-17 on 25.11.1993 whereas all the respondentswere promoted/appointed to B-17 in between 11.8.1987 and 30.9.1992. In other words, viewed from this angle the appellant seems junior to them inlower grade.

22. However, as per the averments made in the appeal (Para-4) the appellant was appointed by transfer in B-17 (as per Annexure-"B") whereasaccording to Para-5 of the appeal all the Respondents Nos. 2 to 24 were allegedly appointed in B-17 in between 4.4.1988 to 22.10.1990 and were
inducted in the National Highway Authority under Rule 20(2) of the Rules. The appeal also fails.

9. APPEAL No. 75(R) 71998

23. It is alleged that the appellant was appointed in B-17 on 5.4.1990 and promoted as Deputy Director (Finance) in B-18 with effect from22.8.1995 vide Annexure "B" whereas Respondent No. 2 was appointed in B-18 on 17.4.1990 purely on work charge basis while Respondents Nos. 3and 4 were also initially appointed in B-17 on work charge basis with effect from 9.3.1995 by order dated 25.4.1995 (Annexure-"C") under Rule 20(2) of
the Rules. This appeal is also dismissed.

10. APPEAL No. 80(R)/1998

24. In this appeal our decision is the same which we have recorded in Appeal No. 65(R)/1998 and accordingly this appeal also must fail.

11. APPEAL No. 82(R)/1998

25. The appellant contends that he was appointed in B-17 on 21.2.1988 vide order dated 28.2.1988 (Annexure-"B") against one of 146sanctioned posts under the defunct National Highway Authority Board wheres Respondents Nos. 2 to 36 were initially appointed in B-18 on thedates, mentioned below, against their names :--

SI. No.	Respdt No.	Name BPS&		Date of Appointment
1.	2.	Tahir Ahmed Khan	18	1.8.1985
2.	3.	Sirajul Huda	18	1.8.1985
3.	4.	Syed Raza Hamid Zaidi	18	3.11.1985
4.	5.	Rashid Ahmed Memon	18	20.4.1986
5.	6.	Pervez Gul	16	30.8.1984
6.	7.	Sadrul Ola Rizvi	18	19.7.1987
7.	8.	Afzal-ur-Rehman	18	2.8.1987
8.	9.	Maqsood Hussain	18.	9.8.1987
9.	10.	Majeeb Qadir	18	11.8.1987
10.	11.	Muhammad Bashir	18	16.8.1987
11.	12.	Arshad Mahmood	18	16.8.1987
12.	13.	Atiq Ahmed	18	1.9.1987
13.	14.	Shaukat Hayat Khan	18	17.2.1988
14.	15.	Mian Muhammad Asghar	18.	22.2.1988
15.	16.	Yousaf Ali	18	24.2.1988
17.	18.	Mukhtar Ahmed	18	24.2.1988
18.	19.	Qaz Ahmed Chaudhry	18	24.2.1988
19.	20.	Khair Muhammad Solangi	18	• 25.2.1988
20.	21. -	Saadullah Khan Tareen	18	31.10.1985

SI. No.	Respdt No.	Name BPS&		Date of Appointment
21.	22.	M. Shahbaz Ahmed	18	1.12.1988
22.	23.	M. Azfar Ahsan Khan	18	17.8.1988
23.	24.	Abdullah Jan	18	10.12.1988
24.	25.	Ziauddin	18	12.12.1988
25.	26.	Imran Khan Yousafzai	18	13.12.1988
26.	27.	Tariq Mahmood Qureshi	18	18.12.1988
27.	28.	Maj. Retd. Shahd Allauddin	18	20.12.1988
28.	29.	Muhammad Yousaf	18	5.4.1990
29.	30.	Abdus Samad	18	5.4.1990
30.	31.	LatifHussain	18	12.4.1990
31.	32.	Muhammad Zafar Iqbal	18	21.5.1990
32.	33.	Naeem Mahmood Khan	18	22.9.1990
33.	34.	Mansoor A. Sirohey	18	14.11.1990
34.	35.	Abdul Aziz Langah	18	24.11.1990
35.	36	Shahid Ihsanullah	18	1.8.1990

on work charge basis whereas Respondents Nos. 37 to 39 were initially appointed in B-17 on 9.8.1987,11.8.1987 and 17.2.1988 respectively on work charge basis but were converted into regular establishment with effect from 9th March, 1995 by order dated 25.4.1995 under Rule 20(2) of the Rules. The appellant was promoted to B-18 from 31.10.1995 by order dated 18.12.1995 while pursuant to the advice of the Establishment Division the respondents were inducted/promoted with effect from 9.3.1995 and that Respondents Nos. 2 to 20 were also promoted to B-19 without issuance of final Seniority List. Consequently the appeal fails and is hereby dismissed.

12. APPEAL No. 89(R)/1998

26. It is stated at Para-3 of the appeal of the appellant that he was appointed to B-17 on 8.6.1987 vide Annerure -B against one of the regular sanctioned posts of one hundred and forty six strength under the defunct National Highway Board whereas (per Para-4) Respondents Nos. 2 to 17 were initially appointed in B-18 on the following dates :--

RESPONDENT DATES OF

Nos. EPS APPOINTMENT

2. 18 31.10.1985

3. ' 18 1.12.1988

4. 18 17.8.1988

RESPONDENTS DATES OF

Nos. EPS APPOINTMENT

5.	18	10.12.1988
6.	18	12.12.1988
7.	18	13.12.1988
8.	18	18.12.1988
9.	18	20.12.1988
10.	18	5.4.1990
11.	18	5.4.1990
12.	18	12.4.1990
13.	18	21.5.1990
14.	18	22.9.1990
15.	18	14.11.1990
16.	18	24.11.1990
17.	18	1.8.1992

respectively on work charge basis and were inducted to B-18 with effect from 9.3.1995 under Rule 20(2) of the Rules.

13. APPEAL No. 90(R)/1998

27. As per Para-3 of the appeal the appellant was appointed to B-17 to 20.7.1991 (vide Annexure-B) and prior to that he was a project employee with effect from 14.6.1988 under the defunct National Highways Board whereas Respondents Nos. 2 to 17 were initially appointed to B-18 on the dates mentioned below :--

RESPONDENTS DATES OF

Nos. BPS APPOINTMENT

2.	!8	31.10.1985
3.	18	1.12.1988
4.	18	17.8.1988
5.	18	10.12.1988
6.	18	12.12.1988
7.	18	13.12.1988
8.	18	18.12.1988
9.	18	20.12.1988
10.	18	5.4.1990
11.	18	5.4.1990
12.	18	12.4.1990

RESPONDENTS DATES OF

Nos. EPS APPOINTMENT

13.	18	21.5.1990
14.	18	22.9.1990
15.	18	14.11.1990
16.	18	24.11.1990	&
17.	18	1.8.1992

respectively on work charge basis and were inducted to B-18 with effect from 9.3.1995 under Rule 20(2) of the Rules.

28. A perusal of the Seniority List dated 10.9.1997, available on the file, shows that the appellant is junior in all respects to the respondents as

far his appointment to B-18 is concerned. No doubt Fazal Nawaz Khattak and Gulzar Russian are also in BPS-17 yet they are senior to the appellant

being appointed on 11.8.1987 and 1.11.1986 as against the date of 4.4.1988 of the appellant's appointment Rest of the respondents are shown in B-18 in

between 31.10.1985 and 1.8.1992. Thus the appeal of the appellant must also fail.

14. APPEAL No. 110(R)/1998

29. As per the allegations in the appeal the appellant was allegedly appointed in B-18 against one of the regular sanctioned posts of one hundredand forty six under the National Highway Board on 12.4.1981 and was promoted to B-19 w.e.f. 31.10.1995 whereas the respondents were inductedin B-19 on the following dates :--

Nos. & NAME OF DATE OF

RESPONDENTS APPOINTMENT

2.	Altmash Khan	8.2.1995
3.	Raja Nowsherwan Sultan	9.6.1988
4.	Lt. Col. Ghulam Hussain	9.6.1992
5.	Dr. Tajul Iskm	10.6.1992
6.	Mobin Ahmed Siddiqui	26.10.1992
7.	S.ALatif	24.9.1995
8.	Aurangzeb	13.2.1990

30. A perusal of the aforesaid statement based on the Seniority List dated 10.9.1997, amply proves the seniority of the respondents which is far earlier than that of B-19 of the appellant i.e. 31.10.1995 and Consequently this appeal must also fail.

NATIONAL HIGHWAYS BOARD, EMPLOYEES SERVICE RULES. 1974.

31. As these rules were preceding the National Highway Authority Act, 1991 and National Highway Authority Employees Services Rules, 1995,
hence for clarification of certain points it is advisable to give a brief reference to the same.

32. Regarding Rule 2 : 1 reference is made to Para-2 of this order wherein it has been dealt with and in order to avoid repetition we need notdiscuss the same over here and similarly with respect to the "Definitions" as contained in Para 3:1 of the said Board's Rules, the same have beenincorporated in the National Highway Authority Employees Services Rules, 1995 with minor variations here and there and the same have also beendiscussed in Para-4 (supra).

33. Relevant Para 6:1 of the National Highway Board's Rules, 1974 relates to "Appointments and Promotions wherein the same principles havebeen incorporated as in Chapter-I relating to the National Highways Authority's (Appointments and Promotions) Rules, 1995. Section 6 of theseRules describes the authorities competent to make appointments to the various posts from B-20 and below and per Section 7;

"Promotion to higher posts shall be made on the basis of seniority-cum-fitness formula."

Chapter-n relates to "Appointment by Promotions" and the Competent Authority, Selection Committee/Board will have to keep in view Schedule-IV concerning qualifications and conditions laid down therein for initial appointment and only such persons who meet the requirements laid down in Schedule-Ill, shall be considered for promotion by the respective Selection Committees and Rule 10 requires that:

"No promotion shall be made to posts unless the employee concerned has completed such minimum length of service as specified in Schedule-Ill."

Rule 11 relates to acting charge appointment meaning thereby that when an incumbent does not fulfil the requisite length of service, he cannot be promoted to a post on regular basis but the appointment, if made, will be on acting charge basis which does not confer any right of promotion or to seniority. In this respect Rule 11(1), (3) (5) and (6) respectively are referred to:

"11 (1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior officer/official belonging to the cadre as given in Schedule-IV who is otherwise eligible for promotion does not possess the specified length of service as given in Schedule-Ill, theAuthority may appoint him to that post on acting charge basis.

(3) In the case of a post in Basic Pay Scales 17 to 20 and equivalent, reserved under the rules to be filled by initial appointment, where the appointing authority is satisfied that no suitable officer drawing pay in Basic Pay Scale in which the post exists in available in that category and it is expedient to fill the post, it may appoint to that post on acting charge basis the most senior officer/official otherwise eligible for promotion in cadre in excess of the promotion quota."

"(5) Appointment on acting charge basis shall be made on the recommendations of the Selection Committee."

"(6) Acting charge appointment shall not mean an appointment by promotion on regular basis for any purpose including seniority."

Chapter-Ill relates to "Initial Appointment and per Schedule-IV it is mentioned in Rule 13 that candidate to be appointed must possess the requisite qualifications and experience while under Rule 6:6 of the NHA Rules the services of any employee from other Government Departments, autonomous Bodies etc. can be requisitioned for appointment on deputation. The provisions relating to seniority of the employees under the NHA Board's Rules, 1974, are contained in Rule 7:1 thereof which are reproduced hereunder in verbatim for ready reference:

"7:1 (b) In cases where two or more persons are promoted or appointed by direct recruitment in the same cadre on the same date, the seniority shall be determined as under :-

(i) Respective seniority in the cadre from which promoted shall be taken into account.

(ii) Persons "promoted" shall be senior to the persons "recruited". *

(iii) Seniority of the persons recruited directly shall be decided by the competent authority on the basis of merit

(iv) When seniority cannot be determined on the above criteria, seniority shall be determined on the basis of age, the elder being given seniority over the younger.

(c) Cadrewise seniority list in respect of all employees of the Board upto Grade 10 shall he maintained separately by the Board and
its subordinate offices.

(d) Contract employees shall not he shown on seniority lists ofvarious Cadres."

The same provisions/principles as contained in Rule 7:1, reproduced above, have been taken into consideration adequately in Rule 20(1) and (2) of the said NHA Rules, 1995. If is further to observe that the same principles are contained in the Civil Servants (Seniority) Rules, 1993, and thus there appears consistency in all the Rules.

34. Now coming to Section 18 of the NHA Act one finds that under
sub-section (1):

"Any person on deputation to the National Highways Board * immediately before the Constitution of the Authority shall, on the Constitution of the Authority, be deemed to be on deputation to the Authority on the same terms and conditions of service to which he was entitled in the National Highways Board.

(2) Employees of the National Highways Board immediately before the Constitution of the Authority, including a person ondeputation to any other organization in Pakistan or abroad, may, on the Constitution of the Authority, opt to become anemployee of the Authority.

(3) An employee exercising an option under sub-section (2) shall become an employee of the Authority on such terms andconditions as may be proscribed by Rules or Regulations," and such rules are contained in the National Highway Authority Employees Services Rules, 1995. 35. Chapter-Ill relates to seniority and under Rule 15: "An employee shall take seniority in his cadre from the date of his regular initial appointment"

and under Rule 16: "The seniority of an. employee promoted to higher post shall be reckoned from the date of his promotion" and under Rule 17:

"In case where two or more persons are promoted or appointed by direct recruitment in the same batch, the seniority shall be determined as under:

(1) inter se seniority as in the lower cadre or post shall be retained.

(2) Person promoted shall rank senior to the persons recruited in the same calendar year.

(3) Seniority of the persons recruited directly shall be decided by the competent authority on the basis of merit in accordancewith the recommendations of the selection committee: Provided that if the merits of two or more persons is the same, the person older in age shall be given seniority over the younger"

and according to Section 19:

"Deputationists, Contract Employees and Workcharge/Casual Employees shall not be shown on seniority lists of various cadres,"

but in the instant cases all the incumbents in B-20 and below have been indicated in one and the same joint Seniority List which means that all have become regular.

36. According to Rule 20(1) seniority of regular employees under the National Highway Authority Board: "Shall be reckoned from the date of their initial appointment/promotion in National Highway Board in that post," and under Rule 20(2) of the Rules the seniority of the erst-while work-charge employees then serving in the various projects is required to be determined from the date of notification of these rules which date is 9.3.1995 and not 30.9.1995 as mentioned in the opinion of the Establishment Division contained in 5/5/96-R. Ill dated 19.11.1996.

37. However, in the opinion of the Establishment Division it was also recorded that :--

(i) the Law and Justice Division may also be consulted in the matter and this necessitates our attention.

OPINION OF JUSTICE & LAW DIVISION :

(ii) A perusal of the opinion rendered by the Law and Justice Division indicates that though the, learned Joint Secretary relied on Section 18(3) of the Act yet it does not create distinction between a regular employee and a work charge one which, he considers, mutally at par and probably this principle has been termed as expediency rule by the learned Draftsman/ Additional Secretary which, according to him, is violative of theprinciple of law and equity and also goes contrary to Section 8(4) of the Civil Servants Act, 1973, which enjoins reckoning of seniority from the date of regular appointment to a post, service or cadre and he has put a proviso to it * "if the case squarely falls within the object for which the rule was made" and the merger of the project employees with the HQs employees is not a simple case of initial recruitment and as such the expediency rule cannot be extended to their case and for this reason he agreed with the view-point (conclusion) of the learned Joint Secretary that the seniority of both the categories of employees under the National Highway Authority shall be reckoned from the date of appointment to the post/grade.

38. Practically we have gone through the various appeals but no such case came to our notice wherein an employee of a subsequent date wasmade senior to an appointee inducted earlier. The principle of seniority-cum- fitness appears to have been kept in view as per the National Highway Authority (Appointment and Promotion) Rules, 1995 read with the various Schedules Le. from I to IV. The principle of seniority has rightly been maintained. If any employee who was appointed against one of the one hundred and forty six regular sanctioned posts under the Board and whose induction is governed by Rule 20 (1) of the Rules could ipso facto be not placed senior if he was not promoted earlier to the date of notification dated 9.3.1995 of a work charge employee.

39. There is another aspect that by construction and implications the NHA Board Rules, 1974 stand superseded. It is stated that neither the Act nor for that matter the rules contain any Section or rule superseding the Board's Rules which, according to us, is a glaring omission. It is a mandatory requirement of law and its interpretation with the subsequent enactment whether original (Act and Ordinance) or subordinate (Rules and Regulations) superseded the earlier law for avoiding subsequent conflict inter se and complications. As this aspect of the matter escaped the notice ofthe learned Joint Secretaryand Draftsman/Additional Secretary in the Law and Justice Division due to not property fed the National Highway Authority, which fact is evident/discernible from the opinion itself. Had the National Highway Authority provided the relevant rules/opinion required,the opinion would have been definitely different than rendered as the National Highway Authority Employees Service Rules are complete in itself.Moreover, we are sitting over determination of inter se seniority of two contesting groups and the law, as it is, must be applied to it and the law/rule ought ( fjf^fty *° be ^ou* °f P⁸^⁶ °f ^our discussion. We would, however, like to reproduce below, the last two lines occurring in Rule 20(2) of the Rules which read:

"However, their service as Workcharge Employee will count towards qualifying service for consideration for promotions and for pay and pension."

According to our considered view, some words are not properly used and as such we suggest that the same be deleted from the said rule and these may. be styled as follows from the word "qualifying".

"Qualifying service for consideration of promotion, pay and pension" and the proposal is merely for adorning the words being not property styled and has created a confusion and it was for this reason that the learned counsel had tried to exploit it.

41. We are not here to sit over the viability or otherwise of the rules but are required to determine the Seniority of the incumbents and in thatrespect the rules on the subject, as referred to above, inclusive of the NHA (Appointments and Promotions) Rules in the light of various annexures andletters laid thereunder, are crystal clear and viewed from this angle, there appears no controversy whatsoever with respect to the determination ofseniority of the employees under the Board whether regular or work charge H for the reason that seniority reckons from the date of regular appointment and the rules contained in the Appointment and Promotion Rules do not lack anything if the same are properly attended to and implemented but we are constrained to observe that these have not been properly attended to so much so that only one Joint Seniority List of all the grades right from B-20 and below was prepared in disregard of mandatory provisions of Rule 18 of the Rules which require:

"Cadrewise Seniority List in respect of all employees of the Authority shall be maintained separately by the Administration Wing of the Authority and circulated annually."

42. A lost of inconvenience appears to have been caused to all concerned, including the employees of the National Highway Authority, the learned counsel of the Bar and we were also not an exception to it for thereason that in some appeals the rules were not provided whereas in theothers, copies, if so provided, were not legible and in some of the appeals Seniority Lists of unconcerned cadres were placed and it was a Herculean job to get the requisite information relating to the appointments of the incumbents from the joint Seniority Lists.

43. Before parting with the case we would also like to suggest that new sub-rule (3) shall be added after sub-rule (2) of Rule 1 of the National
Highway Authority Employees Services Rules, 1995, in the following words:

"(3) The National Highway Board Employees Service Rules, 1974, are hereby repealed."

44. Pursuant to the aforesaid discussion all the appeals fail and are hereby dismissed leaving the parties to bear their own costs. All theconcerned contestants shall be informed accordingly.

(A.P.) Appeal dismissed.

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Friday 20 March 2020

Acting Charge according to NHA Appointment and Promotion Rules 1995

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