IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT:  
Mr. Justice Umar Ata Bandial 
Mr. Justice Yahya Afridi 
 
CIVIL APPEALs NOs.1219 TO 1222 OF 2015 
(On appeal from the judgment/order dated 30.07.2015 passed 
by Federal Service Tribunal, Islamabad in Appeal No.460(R)CS to 
461(R)CS of 2013) 
& 
 
CIVIL APPEALs NOs.248 TO 251 OF 2018 
 
 
Chairman, Federal Board of Revenue,  
Islamabad  
 
… Appellant 
(CAs.1219 -1220 of 2015 
& C.As.248-251 of 2018)  
Muhammad Mohsin Rafiq & others  
… Appellants 
(CAs.1221&1222 of 2015) 
 
 
 
 
 
 
Versus 
Mrs. Naureen Ahmed Tarar and others  
… Respondents  
(in CA.1219 & 1221/2015)  
 
Mrs. Ambreen Ahmed Tarar, etc.  
… Respondents  
(in CA.1220 & 1222/2015)  
 
Muhammad Junaid Jalil and others  
… Respondents  
(in CA.248/2018)  
 
Syed Shakeel Shah & others   
… Respondents  
(in CA.249/2018)  
 
Dr. Iftikhar Ahmed & others  
… Respondents  
(in CA.250/2018)  
 
Muhammad Saleem & others  
… Respondents  
(in CA.251/2018)  
 
 
 
 
For the appellants  
(CAs.1219 -1220 of 2015 & 
C.As.248-251 of 2018)   
: Hafiz S.A.Rehman, Sr. ASC.  
 
 
 
For the appellants  
(CAs.1221 -1222 of 2015) 
: Mr. Mahmood Ahmed Qazi, ASC.  
 
 
 
Respondent No.1 
(CA.1219 & 1221 of 2015)   
: In-person.  
 
 
 
For respondents (20-21)  
(CA.1219-1220 of 2015)   
: Ch. Abdul Sattar, ASC. 
 
 
 
Respondents (No.3, 5, 7, 
13, 17-19, 22, 23) 
(CA.1219-1220 of 2015)   
: Ex-parte 
 
 
 
CA.1219/2015, etc. 
2
For Respondent No.1 
(CA.1220 &1222 of 2015)   
: Rana Asif Saeed, ASC.  
 
 
 
For Respondents (No.2, 4, 
6, 8-12, 14-16)  
(CAs.1219-1220 of 2015) 
: Mr. Mehmood Ahmed Qazi, ASC. 
 
 
 
For respondents (11&12)  
(CA.1221 of 2015)   
: Ch. Abdul Sattar, ASC. 
 
 
 
Respondents (No.2-10, 13) 
(CA.1221 of 2015)   
: Ex-parte 
 
 
 
For respondents (10&11)  
(CA.1222 of 2015)   
: Ch. Abdul Sattar, ASC. 
 
 
 
Respondents (No.2-9 & 
12-14) (CA.1222 of 2015)   
: Ex-parte 
 
 
 
For Respondent No.1 
(CA.248-251 of 2018)   
: Mr. M. Shoaib Shaheen, ASC.  
 
 
 
For Respondents (7-8) 
(CA.248-250 of 2018)   
: Kh. M. Farooq, Sr. ASC.  
Syed Rifaqat Hussain Shah, AOR.  
 
 
 
For Respondents (5-6) 
(CA.251 of 2015)   
: Kh. M. Farooq, Sr. ASC.  
Syed Rif aqat Hussain Shah, AOR. 
 
 
 
Date of hearing 
: 20.02.2019. 
 
 
 
O R D E R 
 
 
UMAR ATA BANDIAL, J. C.M.As. NOs.1560 & 1562 
OF 2019. These Misc. Applications for setting aside ex-parte order 
dated 10.12.2012 passed against the respondents mentioned 
therein are allowed. The respondents may join these proceedings 
subject to all just and legal exceptions. 
2. 
 
CIVIL APPEALS NO.1219 TO 1222 OF 2015. Leave 
was granted in these appeals vide order dated 23.11.2015 in the 
following terms: 
“We have read the relevant rules. The question 
whether determination of seniority could in any way 
be linked with the passing of exams in first, second 
and third attempt or it is their qualification 
CA.1219/2015, etc. 
3
simpliciter, which matters in this behalf. The points 
raised require consideration. We, therefore, grant 
leave in these cases.”    
 
3. 
 
The dispute between the parties concerns the seniority 
of probationers qualifying in the 25th Common Group who have 
been placed in the Customs & Excise Group. Their terms and 
conditions of service as probationers is laid down in Section 6 of 
the Civil Servants Act, 1973 (“Act”). Section 25 of the Act 
empowers the competent authority to frame rules for carrying out 
the purposes of the Act. The Occupational Groups and Services 
(Probation, Training and Seniority) Rules, 1990 (1990 Rules) were 
framed by the competent authority, inter alia, for regulating the 
fixation of the seniority among probationers after their Final 
Passing Out Examination (“FPOE”). At the time when the initial 
appointment of the members of 25th Common Group was notified 
on 11.07.1998, the 1990 Rules as originally framed were still in 
vogue. However, during the period of probation of the 25th 
Common Group commencing in July, 1998 and ending on 
13.08.2003, these rules underwent amendment on 28.04.2001. A 
substantial change in the method of reckoning seniority was 
introduced by the amendment. This was done by including the 
number of attempts availed by a probationer to clear the three 
specialized training examinations as one of the criteria for 
determining seniority. The relevant amendment was made in sub-
Rule (2) of Rule 6 of the 1990 Rules which is reproduced below: 
(2) 
A probationer who does not qualify in the Final 
Passing Out Examination shall: 
(a) 
lose his one increment if he fails in the first 
attempt.  
CA.1219/2015, etc. 
4
(b) 
be relegated in seniority to the bottom of his 
batch if he fails in the second attempt; and 
(c) 
be discharged from the service under clause 
(a) of sub-section (2) of section 6 of the Civil 
Servant Act, 1973, if he fails in the third 
attempt.” 
 
 
4. 
 
Prior thereto the seniority of the probationers at the 
end of successful passing of their training examinations was 
provided in Rule 7(4): 
 
 
7. 
Seniority. 
 
 
 
… 
(4) 
For the purpose of determining the inter-se 
seniority 
of 
the 
probationers 
who 
commence 
their 
training 
with 
initial 
training programme the marks obtained by 
a 
probationer 
in 
the 
competitive 
examination of the Commission or his 
notional marks, as the case may be, shall 
be added to the marks obtained by him in 
the initial training programme, specialized 
training 
programme 
and 
the 
marks 
obtained by qualifying the Final Passing 
Out Examination in his first attempt.  
 
5. 
 
The additional criterion of the number of attempts 
availed by a probationer for fixing his seniority in the batch was 
implemented in the present case by the provisional seniority list 
issued on 03.06.2008. The same criteria were adopted again for 
arriving at the final seniority list issued on 21.12.2012 by the 
appellant-department. These seniority lists were challenged by 
respondent No.1 in appeals before the departmental authority and 
thereafter before the learned Service Tribunal. The Tribunal held in 
favour of the respondents on the ground that the amendment in 
the Rules had been applied retrospectively. More particularly, the 
private respondents in the present lis are all members of the 
CA.1219/2015, etc. 
5
Customs & Excise Group from the 25th Common. They were 
promoted to BS-18 by FBR on regular basis vide notification dated 
13.08.2003. Therefore, it is contented that the 1990 Rules which 
deal with probationers had ceased to apply to them. Consequently, 
the two seniority notifications referred to above had been wrongly 
framed. It may be pointed out that the promotion notification dated 
13.08.2003 was based solely on the result of the first CSS exam 
notified by Federal Public Service Commission and made no 
reference to the results secured by the probationers in the 
subsequent examinations held during their probationary training 
to assess their merit and capability. 
6. 
 
Before us, the only dispute is whether the amendment 
made on 28.04.2001 in the 1990 Rules (“2001 amendment”) 
reproduced above applies to the present case or not? The 
respondent No.1, who has addressed the Court in-person, 
however, went further to claim that the 1990 Rules should not be 
applied to determine inter se seniority of the batch mates. Instead  
the result of the CSS examination should be treated as the basis of 
seniority of the probationers as already done by notification dated 
13.08.2003 pursuant to which the batch as a whole was promoted 
to BS-18.  
7. 
 
We have heard the learned counsel for the parties. 
Just to give an idea of the several anomalies that are apparent in 
the final seniority list dated 21.12.2012, a copy thereof is placed 
herein below: 
 
CA.1219/2015, etc. 
6
 
 
Perusal of the above list reveals that respondent No.1 is at Sr. 
No.18 thereof. She secured a total of 1748.35 marks in the (CSS, 
CTP, STP and FPOE) competitive examinations that were held. On 
the strength of her total marks she ought to be at Sr. No.10 of the 
list, next after Muhammad Jamil Nasir, who secured a total of 
1751.63 marks. However, on account of the weightage attached to 
the number of examination attempts by the 2001 amendment, the 
respondent No.1 was relegated to Sr. No.18 because she passed 
her 
FPOE 
in 
the 
second 
attempt. 
Another 
respondent, 
Mrs.Ambreen Tarar, stands at Sr. No.23 of the list having secured 
a total of 1744.1 marks, but is placed below Mr. Khaleel Ibrahim 
Yousfani, who secured a total of 1629.1 marks. If the seniority 
CA.1219/2015, etc. 
7
position was to be based purely on the number of total marks, 
then Mrs. Ambreen Tarar would have ranked at Sr. No.11 just 
below Mrs. Naureen Ahmad Tarar. However, she is at Sr. No.23 
because she passed the FPOE in her 3rd attempt.  
8. 
 
The learned Service Tribunal has also commented 
upon the disproportionate weightage given to the number of 
attempts resulting in a substantial change in the final seniority 
position of the probationers. However, we are of the considered 
view that the present matter may be decided on a fair basis solely 
by considering the legal aspects and implications of the 
probationary period of the private respondents that started on 
11.07.1998 and concluded on 13.08.2003. The 2001 amendment 
whereby the number of attempts was made a criterion of seniority 
was promulgated on 28.04.2001 during the term of the 
probationary period of the private respondents. As a result of the 
2001 amendment the seniority position of the private respondents 
is claimed to have been affected adversely. Seniority in service is a 
valuable right and the private respondents in the present lis had a 
legitimate expectancy that the probationary service law prevalent 
at the time when they entered their probation shall remain in force 
until their confirmation. The principle of legitimate expectancy 
aims at enforcing fairness and preventing arbitrariness. It was 
cogently articulated by the UK House of Lords in the case of 
Council of Civil Service Unions and others   vs. Minister for 
the Civil Service [1984] 3 All ER 935 wherein it was held that: 
“To qualify as a subject for judicial review the 
decision must have consequences which affect some 
person … either (a) by altering rights or obligations of 
CA.1219/2015, etc. 
8
that person which are enforceable by or against him 
in private law or (b) by depriving him of some benefit 
or advantage which either (i) he has in the past been 
permitted by the decision-maker to enjoy and which 
he can legitimately expect to be permitted to 
continue to do until there has been given an 
opportunity to comment or … advancing reasons for 
contending that they should not be withdrawn.”  
 
9. 
 
This 
rule 
of 
fairness 
and 
non-arbitrariness 
is 
recognised in our jurisprudence to mean that an advantage or 
benefit derived from a competent legal dispensation, departmental 
practice or established procedure that has been extended to and 
enjoyed by a person may legitimately be expected to remain 
available unless notice or opportunity to defend or adjust his 
position is given to that person. Discussion on the subject is 
available in Regarding pensionary benefits of the Judges of 
Superior Courts (PLD 2013 SC 29 at p.1008) and Al-Jehad Trust  
vs.  Federation of Pakistan (PLD 1996 SC 324). A useful 
discourse is also made in Union of India vs. Hindustan 
Development Corporation (AIR 1994 SC 988).   
10. 
 
There is no doubt that the ranking of passing 
probationers on the basis of the number of their attempts made to 
clear the prescribed examinations imposes a penal liability through 
loss of seniority. The change in law by the 2001 amendment 
therefore causes adverse consequences for the probationers. These 
consequences infringe the legitimate expectancy of the serving 
probationers by altering the legal dispensation under which firstly, 
their service rights are determined for the future and secondly, for 
changing the rules under which private respondents commenced 
CA.1219/2015, etc. 
9
their probationary training. Though procedural in content, the 
2001 amendment affected a substantive right of the probationers, 
namely, their seniority in the batch and in this respect by altering 
an accrued status, the said amendment had retrospective effect. 
Resultantly it is burdensome to implement the 2001 amendment 
upon the probationers who had already entered their probationary 
period prior to the enforcement of the said amendment. 
11. 
 
There is also the additional fact that one of the 
examinations envisaged in the 1990 Rules, namely, the STP, could 
not be held. This failure makes the categorization of the total result 
on the basis of number of examination attempts to be irrational 
and 
lopsided. 
The 
existing 
circumstances 
of 
incomplete 
examinations to test the probationers and the enforcement of the 
disputed 2001 amendment to an ongoing probationary course, 
have resulted in harsh and untenable consequences both in law 
and fact. This in itself provides justification to exclude the 2001 
amendment from application in the present case. However, it 
cannot mean, as opined by the learned Tribunal, that the 1990 
Rules should as a whole cease to apply to determine the inter se 
seniority of probationers on the eve of their confirmation. The 1990 
Rules are specially framed to deal with service terms and 
conditions of probationers. Their application is necessary for 
determining the rights and ranking of probationers at the time of 
their confirmation. Therefore, these Rules being a special law 
cannot be excluded from operation. However, on the principle of 
legitimate expectation and for the fact of the failure by the 
administrative authorities to complete the examination process 
CA.1219/2015, etc. 
10
envisaged in the 1990 Rules, it is harsh and unfair to implement 
amended Rule 6 of the 2001 amendment in its totality.  
12. 
 
As a result, we hold that the 1990 Rules in their 
(unamended) form as at the commencement of the probationary 
period in July, 1998 shall remain applicable for reckoning the 
seniority of the private respondents on the completion of their 
probation in BS-17. The judgment of the learned Service Tribunal 
is accordingly modified to the foregoing extent. The observations 
made by the learned Service Tribunal about the workability of the 
1990 Rules post the 2001 amendment are endorsed and for this 
purpose, the Federal Government needs to apply its mind to 
remove the salient anomalies highlighted by the learned Tribunal 
that exist in the application and implementation of the said rules. 
These appeals are partially allowed in above terms. 
11. 
 
CIVIL APPEALs NOs.248 OF 251 OF 2018. Since 
distinct questions of law and facts, as compared to the one raised 
and decided herein above, are involved in these appeals, therefore, 
they are adjourned to be heard separately.  
   
 
 
 
 
 
JUDGE 
 
 
 
 
Islamabad, 
20.02.2019. 
Irshad Hussain/* 
 
JUDGE 
 
 
APPROVED FOR REPORTING.  
