Injustice has pervaded every fabric of the Government Institutions

            The last 62 years’ ruling of both the Military and Political Parties have created so huge heaps of filth in every Government Department that it is impossible for a few Courts or a few Judges of the Apex Court to clear it. Both the ordinary citizens and the Civil Servants (High Graded and Low Graded) deplore the injustices. Now who is the real and law-breaker who is victimizing the citizens of the Country, is the real controversy to be found out.

            Sub-section 5 of Section 8 of the Civil Servants Act, 1973 provides, “The seniority lists prepared under sub-section (1) shall be revised and notified in the official Gazette at least once in a calendar year, preferably in the month of January.

            Sub-section (1) provides that “For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.”

            No depiction is required to highlight the importance of Seniority List of the Civil Servants. When a department fails to revise the seniority list of even its own employees then how it can give good to the other citizens. This is the reason that cases are piling up in the Courts and there is no end of litigation. When departmental high ups themselves become unjust then such kind of situation emerge as has been given in the following report of THE NEWS by Mr. Ansar Abbasi.

            My suggestion is that the Chief Justices of all the High Courts should be directed by the Chief Justice of Pakistan to ask the head of every Provincial Department to submit the copies of the Seniority Lists of every cadre for every year of Civil Servants in that Department to the Government Servants of the respective cadres etc. because it has noted that the departments not maintaining proper seniority lists due to which the promotions from one post to another or from one scale to another not done on proper time.

            My other suggestion is that the Chairman and Members of both Federal and Provincial Service Tribunals should not be serving or retired officers because they depend on the mercy of the Provincial Government for Posting, Transfer, promotion, etc. It is beyond my comprehension that when I shall be dependant on someone for every matter and then I shall subject him under my command! The Judges of the Tribunal should be under the High Courts for their general control and supervision as well as for the appointment of Judges/Members not being members of the Provincial Service. It is not in my knowledge that any Member of the Service Tribunal might have applied for such post. The majority of the Members find place in the Tribunal when they are not considered fit for any other place in the opinion of the Provincial Government. The spirit behind the transfer is not to give well-talented persons having judicial minds that is why when their any judgment is impugned before the Supreme Court seldom get applause from the apex Court. In 2007, the Tribunal decided an Appeal against the Teachers; the matter went to the Supreme Court. The Apex Court said that “…..view taken by Tribunal being erroneous cannot be sustained at law. In fact, it suffers from clear misconception of law and misconstruction of the Circular letter dated 11-8-1991…..and set aside the judgment of the NWFP Tribunal. Recently, the Tribunal remanded my appeal to the Department but did not mention the reasons for the Remand. Accordingly, both I and the respondent departments were placed on the same positions on which we were on the first day of the hearing.

            Actually, dispensation of justice is a very careful job because it involves the valuable rights of the people.. If the cases are decided haphazardly without using the judicial minds it creates more hardships for the people. Judge should be of a nature to go deep to the root of the matter and then decide the case.

            In my case not a single authority from the Supreme Court was mentioned which I had submitted in support of my arguments that whether they agree or disagree with the Judgments of the Supreme Court presented to the Tribunal on each point of CONTENTION. My whole judicial conduct before them proved as the Court’s procedure before my illiterate grandmother when none of the Supreme Court’s Judgments found place in their Remand Judgement. Their direction for the consultation with Finance Department was beyond my comprehension when the Finance Department was itself a party to the whole proceedings. Consultation is done with that department which is either not a party or whose advice is mandatory under the law.

            When I read the Remand Judgment, I thought that it would have been a different judgment had the Judges were from the Judiciary. Actually, the Finance Department has issued notification dated 30-3-2009 contrary to the rulings of the Supreme Court regarding the back benefits. The Provincial Government has openly violated the rulings of the Apex Court but the question is again who is to implement the rulings.

            It is equally injustice to leave all the Government Servants in a Province on the mercy of the Judges of the Tribunal who do not care in writing the judgments mainly due to their lack or imperfect Judicial Knowledge. They are persons from different background i.e. from administration. Administration is something else and judicial exercise is something else. If the job of Tribunal is dispensation of justice then its judges should be from the Judiciary and not from the Administrative Departments.

            On 30-3-2009, I presented a case to the Tribunal regarding admissibility of Advance Increments and other matters. In addition, I also claimed interest/damages. Mr. Sultan Mehmood, a Member of the Tribunal asked me to satisfy him that the Tribunal had the jurisdiction on this question. First he differed with me and asked me that for damages I should go to the Civil Court. He relied on the Section 3 of the Service Tribunal Act, 1974 but I differed and showed him the relevant Article of the Constitution and also an authority from the Superior Court then he got satisfaction. I also got satisfaction from his dealing the cases and his curiosity.

On 16-4-2009, the said Judge/Member said during the preliminary hearing said that Riba (Interest) was forbidden and receiving it was a sin and un-Islamic. I replied whether DEVALUATION of currency of Pakistan was Islamic and justifiable? When the Government was destroying the purchasing power of its citizens by the devaluation of currency then for me taking interest as compensation was fully justifiable. I told him that interest even up to 14 percent has been allowed by the Superior Courts when it found a party aggrieved. When I quoted the Judgments of the Superior Courts then he took a summersault and said that he was not impeding me to claim interest along with the original amount illegally withheld by the all the respondents but should bring it in another appeal after when the instant appeal was decided.

A Judge should know both the substantive law and procedural law before he sit to hear the facts of the case. I also thought for a moment that before my raising this matter, none had ever handled this issue before this Tribunal. So I was the first one to give satisfaction to the Tribunal regarding the jurisdiction on the matter.

Manzoor Ahmad Yousafzai

Saturday, 17 April 2010.

Seniority list changed after 29 years to avoid SC action

Monday, April 12, 2010

By Ansar Abbasi

ISLAMABAD: After 29 years, the government has finally revised the 1981 seniority list of its Secretariat Group, giving backdated promotions, apparently to avert disciplinary action and possible contempt proceedings in the Supreme Court against the two most influential federal secretaries.

Principal Secretary to the Prime Minister Nargis Sethi and Finance Secretary Salman Siddique are threatened with such SC action.

Following an order, issued by a six-member Bench of the Supreme Court on March 25, 2010, the Establishment Division has revised the seniority list of the Secretariat Group and issued Pro forma promotion orders of Dr Aleem Mahmud from the date his next junior was promoted to higher scales more than a decade back.

This decision is also expected to encourage many other retired and serving senior bureaucrats to reclaim their backdated seniority. The apex court decided on the inquiry committee’s report, submitted by three senior officers of the Establishment Division against non-compliance on the orders of the Supreme Court, contained in its judgment dated 13-5-1998.

The inquiry report fixed responsibility on Tariq Saeed Haroon, the then Establishment Secretary but now retired; M Aslam Sanjrani, the then Additional Secretary, Establishment Division, but now retired; Salman Siddique, the then Joint Secretary, Career Planning Establishment Division and now Secretary Finance; Nargis Sethi, the then Joint Secretary, CP, and now Principal Secretary to the Prime Minister; and Abdul Wadood Khattak, the then DS CP, now dead.

Referring to the said inquiry report, the six-member bench of the Supreme Court observed on 25-3-2010 that “ ... in view of the above-referred inquiry report, two options are available to the court i.e. either to proceed against above mentioned officers or to direct the government to initiate action against them; and as a consequence of action, applicants shall be given preformed promotions without any delay. We would also like to observe that appellants had suffered unnecessarily, prima facie on account of conduct of the officers, named here in above and for the redressal of their grievances, they had to knock the door of the court ....”

The Supreme Court bench comprised the Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry, Justice Ch Ijaz Ahmed, Justice Khilji Arif Hussain, Justice Rahmat Hussain Jafferi, Justice Tariq Pervez, and Justice Khalilur Rehman Ramday.

Establishment Secretary Ismail Qureshi, when approached, said the government has implemented the Supreme Court decision after which there is no requirement for initiating action against Nargis Sethi, Salman Siddique and others.

Qureshi explained that after the March 23, 2010, order of the Supreme Court, the then Deputy Attorney General Khawar Shah wrote to the Establishment Division the Supreme Court is inclined to ignore proceeding against the officers, including the principal secretary to the PM and the finance secretary if the court’s decision in Dr Aleem Memood’s case is implemented.

The Establishment secretary said the government has implemented the Supreme Court’s order by issuing revised seniority list of the Secretariat Group and giving Pro forma promotion to Dr Aleem from the date when his juniors were promoted.

When faced with the Supreme Court or the government action against the principal secretary to the prime minister and the finance secretary, the 1981 seniority list has been revised in 2010 whereas Pro forma promotion orders of Dr Aleem Mehmood were issued on April 2, 2010, from the date his next juniors, Syed Shahid Hussain, Dr Zafar Altaf and AW Kazi, were promoted to higher scales.

Dr Aleem Mehmood, who had retired as a federal secretary a few years back, will also get all financial benefits. It is pertinent to mention that the Secretariat Group was constituted vide Office Memorandum dated February 21, 1975, and later modified in April 1976. The first seniority list of deputy secretaries was issued in June 1976 and was undisputed. It was only after the filing of an affidavit dated October 20, 1985, by Asrarul Haq in FST in appeal No (L) 1980 in case of Hameed Akhtar Niazi Vs. Establishment Division that it was revealed that the seniority list of June 1976 was surreptitiously changed without circulation wherein defunct CSP’s were assigned seniority as the deputy secretary w e f the date of completion of 8 year service in BS-17 and above without processing their cases through mandatory selection boards and that three batches of lateral entrants (1973-74-75) were assigned seniority from the dates they were appointed as deputy secretary.

The Establishment Division, which lost its case in the Supreme Court with cost refused to implement the FST/SC decisions. This was in-spite of the advice given by the then Law Secretary on 23-2-93 that “ the principle of law laid down or upheld by the Supreme Court in Wahidi’s case have to be followed in all future matters...”

An identical decision was subsequently delivered on May 13, 1998, vide judgement cited as 1998 SCMR 1687 in case of Dr Aleem Mahmud Vs. the respondents of S A Wahidi. The appeal of Hameed Akhtar Niazi filed in 1980 was eventually decided by the Supreme Court on 13 June 2002 (P L D 2003 Supreme Court 110) and in respect of defunct CSP’s it was held that “we agree with the findings of the Tribunal to the effect that prescribed length of service for promotion to BS-19 is 12 years in BS-17 and above.”

Interestingly, the 1981-seniority list was never revised in the light of above three judgments of the Supreme Court and all promotions between 1976 and 2010 took place on the basis of unrevised seniority list.

Dr Aleem Mehmood filed criminal original application No 55 of 1998 which came up for hearing in 2006, and the chief justice of the Supreme Court ordered a high level inquiry on 5-10-2006, and the court also expressed its displeasure with the manner in which the Supreme Court judgement was not implemented. Dr Aleem is now happy and says the government may well have avoided such prolonged litigations amongst its senior officers and could have created a conducive work environment.