IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
 
PRESENT: 
 
MR. JUSTICE FAISAL ARAB 
 
MR. JUSTICE SYED MANSOOR ALI SHAH 
 
 
CIVIL PETITION NO.396 OF 2017 AND  
C.M.A.NO.1012 OF 2017 
(Against the judgment dated 01.12.2016 of 
the Federal Service Tribunal, Islamabad in 
Appeal No. 72(P)CS/2015) 
 
 
Secretary Revenue Division / Chairman, FBR and another 
 
…Petitioner(s) 
VERSUS 
Muhammad Arshad Hilali 
 
…Respondent(s) 
 
For the petitioner(s): 
Mr. Imran Fazal, ASC 
 
 
For the respondent(s): 
Mr. Jehanzeb Raheem, ASC 
 
 
Date of hearing: 
26.04.2019 
 
JUDGMENT 
 
 
 
FAISAL ARAB, J.- The 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. 
 
2. 
 
In 2011 when FBR circulated the seniority list of the 
Inspectors of Customs department who were appointed upto the 
year 1990, the respondent found his name missing. He made 
representation claiming that as he was appointed as Preventive 
CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 
2
Officer in the year 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 the FBR 
issued the final seniority list of Inspectors in 2014, respondent was 
not given seniority from the date of his initial appointment i.e. from 
1988 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 responded. He then preferred appeal in 
the Service Tribunal and succeeded in his endeavor by securing 
declaration that his seniority in the array of Inspectors be 
reckoned from the date when he was initially appointed in 1988. In 
granting such declaration, the reason which prevailed with the 
Service Tribunal was that when the seniority of four Valuation 
Officers, who were later absorbed in service as Appraisers was 
reckoned from the date of their initial appointment as Valuation 
Officer (the posts of Appraisers and Valuation Officers being of the 
same grade), on the same analogy the respondent could not be 
discriminated and ought to have been given the same treatment. 
Against such decision, the Customs department has preferred this 
petition seeking leave to appeal.  
 
3. 
 
Learned counsel for the petitioner argued 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 
CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 
3
is entitled to claim seniority only from the date when he was 
transferred to Peshawar as Inspector. 
 
4. 
 
Learned counsel for the respondent, on the other 
hand, argued that it is a clear case of discrimination as in the case 
of transfer of four officers of equal grade to another post i.e. from 
Valuation Officers to Appraisers, their seniority was reckoned from 
the date of their initial appointment and not from the date of 
transfer to the new post. When we called upon the counsel for the 
respondent that keeping aside the plea of discrimination for a 
moment on what principle of service law respondent claims that 
his seniority be reckoned from the date when he was initially 
appointed and not from the date of his transfer, learned counsel 
referred to paragraph 6 of instructions contained in Serial No. 30, 
Chapter III Part II of Estacode (1989 edition), which reads as 
follows:- 
 
“6. Seniority on transfer from one office to another.- (i) 
The instructions in the foregoing paragraphs regulate 
the position of a deputationist in his parent office. As 
regards his seniority in the office to which he is 
transferred, it should be determined in the following 
manner:- 
 
(a) 
When it is open to the person concerned to 
accept or refuse an offer of appointment in 
another office, he should-count his seniority 
in the new office from the date of his 
transfer to that office. 
 
(b) 
When a person is compulsorily transferred 
to another office as a result of conscription, 
or alongwith 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.” 
 
 
5. 
 
The import of paragraph 6(i)(a) above appears to be 
quite contrary to what respondent’s counsel intend to advance 
CIVIL PETITION NO.396 OF 2017 AND C.M.A.NO.1012 OF 2017 
4
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 
ground to raise the plea of discrimination.  
 
6. 
 
In the circumstances, we are of the view that the 
Service Tribunal committed error when it accepted the plea of 
discrimination and granted seniority to the respondent from the 
date of his initial appointment in violation of the principle laid 
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5
down in paragraph 6 of Serial No. 30 of Estacode for the simple 
reason that he could only be allowed to count his previous service 
towards seniority had he been compulsorily transferred at the 
instance of the department and not at his own. This petition is, 
therefore, converted into appeal and allowed and the impugned 
judgment is set aside.  
 
CMA No. 1012/2017 
7. 
 
As the main petition has been converted into appeal 
and allowed, this CMA for stay has become infructuous and is 
disposed of accordingly.  
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
26th of April, 2019 
Approved For Reporting 
Khurram