1996 P L C (C.S.

) 78
[Supreme Court of Pakistan]
Present: Ajmal Mian and Mukhtar Ahmed Junejo, JJ
Syed AFZAL AHMED HYDARI and another
versus
SECRETARY, DEFENCE PRODUCTION DIVISION and others
Civil Petitions Nos. 267-K and 268-K of 1994, decided on 4th July, 1995.
(On appeal from the judgment dated 4-7-1994 in Appeals Nos. 93-K, 94-K, 95-K and 96-K of
1994 of Federal Service Tribunal).
(a) Civil Servants Act (LXXI of 1973)---
---S. 8--Seniority list--Preparation of seniority list of the members of the staff working in a
department of such service, cadre or post---Provision of S. 8, Civil Servants Act, 1973 does not
stand in way of preparing separate seniority list for different occupational groups in an
establishment or a department--Maintenance of overall seniority list is not insisted by S. 8 of the
Act.
(b) Civil Service-
---- Service Rules, change in---Effect---Change in Service Rules appeared to be a step towards
specialisation of each of the groups in the department and did not harm or benefit any specified
person or group of persons---Such change could not be said to be mala fide.
Petitioners in person.
Nemo for Respondents.
Date of hearing: 4th July, 1995.
ORDER
MUKHTAR AHMED JUNEJO, J.-Petitioners Syed Afzal Ahmed Hydari and Mrs. Sabiha
Razee Siddiqui have moved separate petitions for leave to appeal against a common judgment
dated 4-7-1994 delivered by the Federal Service Tribunal dismissing Appeals Nos. 93-K, 94-K,
95-K and 96-K of 1994. Both the petitions are proposed to be disposed of under this judgment.
Petitioners Syed Afzal Ahmed Hydari and Mrs. Sabiha Razee were serving as Research Officers
in BPS-17 in Defence Science and Technology Organisation (hereinafter mentioned as DESTO)
Laboratories, under the Defence Production Division Government of Pakistan when SRO
No.17(KE)/88, dated 28-2-1988 was published in the Gazette of Pakistan dated 22-2-1988.
Under said SRO the Government of Pakistan in the Ministry of Defence, by exercising their
powers under sub-rule (3) of the Civil Servants (Appointment, Promotion and Transfer) Rules,
1973 made amendments in the Recruitment Rules for the posts in BPS-17 and above, in the
Defence Science and Technology Organisation. Said SRO provided inter alia that there would be
five Discipline Groups of the employees in DESTO and that promotion to a post in any Group
would be made by selection from amongst the persons who hold the posts in that group.
Aforesaid amendment in the Rules was challenged before Federal Service Tribunal, inter alia by
petitioners Afzal Ahmed and Mrs. Sabiha Razee Siddiqui but their appeals were dismissed on
7-3-1993. The Tribunal took view that the Government was competent to amend the rules that
the amendments made in the Rules had not affected rights of the petitioners. Leave to appeal
against the said judgment dated 7-31993 was refused by this Court under an order dated
10-8-1993 where it was held as below:--
"The conclusion of the Tribunal that the above amendments in Rules are intra vires, seems to be
in consonance with the judgment of this Court in case of Ch. Muhammad Inshaullah and others
v. Chief Conservator of Forests (F&E) Punjab and others, reported in PLD 1988 SC 155"
Subsequently on 28-2-1994 the Defence Production Division Government of Pakistan issued
under Office No. 4062/14/DESTOKar/Admin-2 a new seniority list in light of the SRO dated
28-1-1988. It was discipline-wise seniority list and was circulated amongst the concerned
Officers. In response petitioners Syed Afzal Ahmed and Mrs. Sabiha Razee filed Appeals Nos.
93-K/94 and 96-K/94 respectively with following identical prayers:--
'This Hon'ble Tribunal be pleased to: (a) set aside the discipline-wise seniority list; (b) Direct the
department to maintain the seniority list on the basis of overall seniority and as per proforma at
page 274 of ESTALODE 1989, (c) Pass such other orders and/or give directions in the matter to
the respondents as may be deemed fit in the circumstances"Under a single judgment
dated 4-7-1994 said appeals as well as two similar appeals were dismissed. Hence these petitions
for leave to appeal.
The petitioners of the two petitions argued their cases personally. Their common grievance
appeared to be amendment in the Rules ordered on 28-1-1988 under sub-rule (3) of the Civil
Servants (Appointment, Promotion and Transfer) Rules, 1973. They contended that the Rules in
vogue at the time of their appointment in 1966 and 1967 could not be changed to their detriment,
that the aforesaid amendment was in conflict with section 8 of the Civil Servants Act, 1973 and
that promotion of existing incumbents of posts in DESTO on the basis of `Discipline' is not legal.
Petitioners claimed promotion to higher posts in DESTO on the basis of over all seniority. They
submitted that the concept of "related discipline" did not find place in the rules, as per view of
the Federal Service Tribunal.
Legality of the amendments dated 28-1-1988 has already been examined in Civil Petitions Nos.
267-K and 268-K of 1993, decided on 10-8-1993, by a learned Bench of this Court, which, with
reference to amendments in the Recruitment Rules through SRO-17(KE)/88, dated 28-1-1988,
observed as below:
The conclusion of the Tribunal that the above amendments in Rules are intra wires,
seems to be in consonance with the judgment of this Court in case of Ch. Muhammad
Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others reported
in PLD 1988 SC 155".
After expression of such weighty observations, there is no scope for re-examining legality and
wires of the amendments in question. Moreover, the language of section 8 of the Civil Servants
Act enjoining upon preparation of seniority lists of the members of the staff working in a
department of such service, cadre or post, does not stand in way of preparing separate seniority
lists for different occupational groups in an establishment or a department. Section 8 does not
insist maintenance of over all seniority list.
The change in the Rules has not been proved to be mala fide, as it does not benefit or harm any
specified person or group of persons. The change E in question appears to be in consequence of
Establishment Division's Office Memo No.1/32/83-R-4, dated 24-7-1984 addressed to the
Defence Production Division, reproduced in Federal Service Tribunal's judgment dated 7-3-1993
in Appeals Nos. 169-K of 1988, No. 220-R/88 (No. 109-K of 1991) No. 84-R of 1989 and No.
91-K of 1991. It appears to be a step towards specialisation of each of the five groups. In any
case it cannot be said that change in the Rules is to the detriment of the petitioners or the persons
similarly situated. '
Petitioner Afzal Ahmed added that the Tribunal had excepted his case from being covered by the
amendments in question, by mentioning in the order dated 7-3-1993 as follows:--
"It has further been stated that the case of Mr. Hydari is again before the D.P.C. for
consideration. Therefore it is clear that the amendments in the Rules have not come in the way of
the appellants for future promotion".
Such observation cannot be construed to have given any guarantee to petitioner Hydari that his
case for promotion would not be hindered by the Rules as amended. This is clear from use of the
words "Have not come". Had there been an intention to except case of Hydari from purview of
the amendments, the Tribunal would have used the words "Will not come" instead of the words
"Have not come". Under the above observation the Tribunal gave its opinion that the
amendments had not made the Rules derogatory to petitioner Hydari and they had not reduced
his chances of promotion.
For the foregoing reasons, no case is made out for grant of leave to appeal and both the petitions
are hereby dismissed,
M.BA./A-1329/S Petitions dismissed.