The Supreme Court has held that seniority of a person will be reckoned from the date of his transfer to the new office when he is transferred in a situation where it is open to him to accept or refuse such transfer. A two-member bench, comprising Justice Faisal Arab and Justice Syed Mansoor Ali Shah, declared this on the appeal of Federal Board of Revenue against the verdict of Federal Service Tribunal, Islamabad.
Muhammad Arshad Hilali (respondent) was appointed as Preventive Officer (BS-11) on 19.07.1988 and was posted in Customs House, Karachi. One Sultan Naeem Akhtar was working as Inspector (BS-11) in Collectorate of Customs and Central Excise, Peshawar. They being in the Customs department holding posts in equal grade made a request for mutual transfer, which was accepted in 1991 and the respondent was permanently absorbed as Inspector Customs in Peshawar, while Sultan Naeem Akhtar was absorbed as Preventive Officer and posted in Karachi.
In 2011 when FBR circulated the seniority list of the inspectors of Customs department who were appointed up to 1990, the respondent found his name missing. He made representation claiming that as he was appointed as Preventive Officer in 1988 he be given seniority in the list of inspectors from the date when he was initially appointed in 1988 and not from the date of his transfer in 1991.
When FBR issued the final seniority list of inspectors in 2014, respondent was not given seniority from the date of his initial appointment, but from the date of his absorption as inspector in 1991.
He again made a departmental representation seeking his seniority to be reckoned from the date of his initial appointment i.e. 19.07.1988 which was not accepted. He then preferred appeal in the Service Tribunal and succeeded in his endeavour by securing declaration that his seniority in the array of inspectors be reckoned from the date when he was initially appointed in 1988.
The Customs department challenged the order in the apex court that the respondent who was working as Preventive Officer in Karachi since 1988 was transferred to Peshawar in 1991 and absorbed on the post of Inspectors on the basis of mutual transfer with one Sultan Naeem Akhtar and not compulsorily transferred at the instance of the department, therefore, the respondent cannot claim seniority in the list of inspectors from the date of his initial appointment and is entitled to claim seniority only from the date when he was transferred to Peshawar as inspector.
The court noted that 6(i)(a) of Serial No. 30, Chapter III Part II of Estacode (1989 edition) 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.
However, 6(i)(b) of the same says; "When a person is compulsorily transferred to another office as a result of conscription, or along with the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade in the new office."
The court noted 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 recognised 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. The apex court set aside the Service Tribunal judgement.
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