TN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
MR. JUSTICE GULZAR AHMED, CJ
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
Civil Appeal No.799 of 2021
(Against judgment dated 12.11.2018 passed by
the Federal Service Tribunal, Islamabad
in Appeal No. 1 208(R)(CS)/2016.)
Syed Arshad Au
Appellant
Versus
Secretary M/o Housing & Works, Islamabad & ...
 Respondents
others
For the Appellant Mr. Muhammad Ramzan Khan, ASC
For Respondents # 1-4 : Mr. Sohail Mehmood, Addl. AGP
Mr. Abdul Razzaq, S.C. M/o H&W
For Respondents # 5-6
Date of Hearing
Mr. Rashid Hafeez, ASC
22.12.2021
ORDER
Guizar Ahmed, CJ. - The appellant was employed with the
Ministry of Housing and Works ("the Ministry"). He was promoted
as an Assistant on 06.08.2003 w.e.IT 04.08.2003. The private
respondents were appointed as Assistant respectively on
19.03.1990 and 02.09.1991 in the Statistics Department, where
the services were declared to be surplus. They were transferred
and absorbed in the Ministry on 06.08.2003 as Assistants. Final
Seniority List of Assistants (BS-14) in the Ministry was circulated
vide Circular dated 31.12.2015. The name of the appellant
appeared at Serial No.4 whereas the names of the private
respondents were shown at Serial Nos.2 and 3. The appellant
submitted representation against the Final Seniority List which
was not responded to and thereafter, he filed a service appeal
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before the Federal Service Tribunal. By the impugned judgment
dated 12.11.2018, the service appeal filed by the appellant was
dismissed.
2.
Leave to appeal was granted by this Court vide order dated
1.2.08.2021 to consider the submissions made by the appellant's
counsel as noted in the order.
3.
The learned counsel for the appellant has not argued on the
point which is noted in the leave granting order, rather has raised
a submission that the private respondents being direct recruits
their names ought to appear junior to the appellant who is a direct
recruit in the Ministry and promoted as Assistant w.e.f.
04.08.2003. The learned counsel for the appellant has referred to
two judgments one Abdul Qadeer Vs. Government of Pakistan and
another (2005 SCMR 1560) and Director General Intelligence H
Bureau Vs. Amir Mujahid Khan (2011 SCMR 389). Both the H
judgments have been read and apparently, they are
distinguishable for the reasons that they did not deal with the
question as is argued by the learned counsel for the appellant.
4.
Rule 6 of the Civil Servants (Seniority) Rules, 1993 which
existed at the time when the dispute arose in the present case is as
follows:
"6. inter se seniority of civil servants appointed in
the same calendar year—Persons appointed by
transfer in a particular calendar year shall, as a class,
be senior to those appointed by promotion or by initial
appointment to such Posts in that year, and persons
promoted to higher posts in a particular calendar year
shall, as a class, be senior to those appointed by initial
appointment to such posts in that year."
5.
Subsequently, that rule was amended and it is admitted by
the learned counsel for the appellant so also the learned counsel
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appearing for the respondents that the subsequent amended rule
is not applicable to the case in hand.
6.
The very reading of the rule shows that the persons
appointed by transfer in a particular calendar year shall as a class
be senior to those appointed by promotion or by initial
appointment to such post in that year, and persons promoted to
higher post in a particular calendar year as a class be senior to
those appointed by initial appointment to such post in that year.
This rule makes it quite clear that persons appointed by transfer in
a particular calendar year shall as class be senior to those
appointed by promotion or by initial appointment to such post in
that year. The appellant was promoted on 06.08.2003 w.e.f.
04.08.2003 to the post of an Assistant while the private
respondents were appointed as Assistants by transfer on
06.08.2003. The rule as read above clearly shows that the private
respondents were appointed by transfer on 06.08.2003 and the
appellant being promoted on 06.08.2003 with effect from
04.08.2003 and both transfer and promotion having taken place in
the Calendar Year 2003, those appointed by transfer will be senior
to those who were promoted. It is not the case of the appellant that
the private respondents were transferred at their own request.
7.
In the case of Tikka Khan and others vs. Muzaffar Hussain
Shah and others (2018 SCMR 332) a learned 3-Member Bench of
this Court has observed as follows:
"A look at the rules reproduced above would reveal
that one deals with determination of seniority on
appointment by transfer and the other deals with the
determination of seniority on merger. A bare reading of
the Rule 4 reveals that the case of the respondents is
not of appointment by transfer or appointment on
deputation. It is not even a case of absorption by any
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attribute. The case of the respondents precisely is that
many Ministries were abolished and reorganized in the
wake of the Constitution (18th) Amendment) Act, 2010
and that they being the employees of the Ministry
abolished were transferred to the Ministry reorganized.
Transfer of the respondents to the Ministry
reorganized cannot be seen through the prism of Rule
4 of the Rules mentioned above. Their case is fully
covered by serial No. 33(6) of Estacode, Vol-I, Edition
2007. In this context, their case would be more akin to
Rule 4A rather than Rule 4 of the Rules. No canons of
interpretation would scratch or strike off their past
service when they on abolition of the Ministry, were
compulsorily transferred to the Ministry of Religious
Affairs and Interfaith Harmony. Their past service has
to be respected and recognized for determining their
seniority, It would, thus, be unfair and unjust to treat
the respondents junior to the junior most civil servants
in the Ministry for none of their faults. The view taken
by the Service Tribunal is, therefore, not amenable to
any change or modification."
In the case of Seeretaru Revenue Division / Chairman, FBR and
another vs. Muharnamd Arshad Hilali (2019 SCMR 980) this Court
while considering the implication of rule 6 has observed as follows:
"5. The import of paragraph 6(i)(a) above appears to be quite
contrary to what respondent's counsel intend to advance before
us. It clearly provides that where a person is transferred to
another office in a situation where it was open to him to accept
or refuse such transfer, his seniority was to be reckoned from
the date of his transfer to the new office. The only exception to
this rule is contained in paragraph 6(i)(b). It states that where a
person is compulsorily transferred to another office then he is
allowed to count his service in the previous office towards his
seniority in his new office. In the case of transfer of four other
officers of the department, example of which has been quoted as
precedent in the present case, their seniority may have been
reckoned from the date of their initial appointment but nothing
was brought on the record as to the circumstances in which such
transfers had taken place. In the present case, one thing is clear
that the respondent sought his transfer to his new office on his
own volition on the basis of mutual consent with another officer
of the same grade. He was not compulsorily transferred at the
instance of the department, hence the recognized practice
contained in paragraph 6(i)(a) of Serial No. 30, Chapter III Part
II of Estacode (1989 edition) clearly disentitles him to count his
previous service towards seniority in the new office. When on a
principle of law one upon his transfer is not entitled to seek
seniority from the date of his initial appointment then if
someone else has been granted seniority in violation of such
principle, which too is not clear, the same cannot be made a
-I
C.A.799/2021 
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ground to raise the plea of discrimination."
8. The law having been settled by this Court and also the very
reading of rules 6 ibid, as it existed at the time of dispute having
arisen between the parties, we are of the considered view that the
private respondents having been appointed by transfer in the year
2003 and the appellant having been promoted in the year 2003
and all being promoted or being transferred to the post of
Assistant, the private respondents shall acquire senior position
than that of the appellant. No illegality in the impugned judgment
is pointed out calling for interference by this Court. The appeal is,
therefore, dismissed.
Islamabad, the
22d December, 2021.
Naveed Ahrnad 
r:L Approved For Reporting
