' JUSTICE (RETD.) ABDUL GHANI SHAIKH, CHAIRMAN.---These 38 appeals involve common questions of facts and law, were. By consent of the parties counsel heard together and being disposed of through this common/consolidated judgment. Appeals Nos.360,361,363 to 378/1999 (in all 18) have been filed by promotee Section Officers, while Appeal No.370 of 1999, 6 to 22, 27 and 28/2000 have been filed by directly recruited Section Officers.
2. The case of promotee Section Officers as per contents of their respective memo. Of appeals, in brief is that they were initially appointed as Junior Clerks and were promoted time to time and lastly as Section Officers in October, 1987 and October, 1988, while the private respondents were directly recruited as Section Officers much after their promotions. In the seniority _ lists as stood on 15-1-1989, 20-3-1991, 4-10-1992, 1-11-1994, 12-12-1994, 1-1-1996 and 1-4-1997 they all were shown seniors to the private respondents, which seniority position was never challenged by any of the private respondents, thus the same attained finality and past and closed chapter. Besides, they were also allowed Selection Grade-18. However, vide Letter/Notification dated 24-3-1998, final seniority list as stood on 19-3-1998 was issued wherein the promotee Section Officers (appellants) were relegated to lower position and the directly recruited Section Officers (private-respondents) were shown over and above. However, because of numerous complaios, the said final seniority list was treated as 'Provisional' vide Notification dated 6-4-1998 and the objections from the aggrieved persons were invited. All the promotee Section Officers filed their objections challenging the validity and legality of the Provisional seniority list,'but without considering the same, the respondent No.1 vide Notification dated 19-9-1999 issued final, seniority list as stood on 19-1-1998. Feeling dissatisfied, the appellants (promotee Section Officers) filed their respective departmental appeals, which remained unresponded. Heice, these appeals.
3. As against above, the case of directly recruited Section Officers as narrated in their respective memo. Of appeals, in brief, is that according to rule 5(1) of the West Pakistan Secretariat (Services Rules) 1962 and Recruitment Rules of 1993, 50% of the posts of Section Officers to be filled by initial appointment and 50% by way of promotion, but during the years 1980, 1982, 1983, 1986, 1987 and 1988 the posts of Section Officers were filled by way of promotion, many of them were promoted against the seats/quota reserved for direct recruits and therefore, in view of the settled law the Section Officers who were promoted in excess of their quota were to the rank junior. The department prepared final seniority list vide Notification dated 243-1998 as stood on 19-3-1998, wherein the grievances of the directly recruited Section Officers appointed in 1988, 1992 and 1996 were redressed. However, the status of said seniority list was subsequently changed as 'Provisional' vide Notification dated 11-4-1998. In order to settle the seniority issue between promotee and directly recruited Section Officers, a High Powered Committee was constituted under the chairmanship of the Chici Secretary, which after due deliberation and consultation resolved that seniority list issued vide Notification dated 24-3-1998 be treated as final seniority list, but instead, another Seniority list dated 19-8-1999 was prepared wherein the direct recruits batch of 1988 has been benefited while the direct recruits of 1992 and 1996 were discarded. Feeling dissatisfied, the aggrieved directly recruited Section Officers preferred departmental appeal (s), which remained unresponded.
4. Mr....Abdul Ghafoor Mangi, learned counsel for promotee Section Officers (appellants in Appeals Nos.361, 363 to 378 of 1999) contended vehemently that in last seven seniority lists issued in between 1989 and 1997 prior to the impugned seniority list, these appellants have been shown senior to the promotee private respondents, but none of them at any stage challenged the said seniority lists, the same thus attained, finality and cannot be altered without affording -opportunity of being heard. These appellants were promoted on regular basis much prior to the appointment of private respondents, therefore, under section .8(3)&(4) of the Sindh Civil Servants Act, 1973 read with Rules 10 & 11 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, the civil servant appointed earlier on regular basis shall, rank senior to those appointed lam, but while preparing the impugned seniority list this mandatory provision of law/rules was violated. While referring to the cases of Syed Ali Muqlade Wahidi and Fazal-e-Qadir reported in 1984 PLC (C.S.) 546 and 1984 PLC (C.S.) 151 respectively decided by the Federal Service Tribunal, learned counsel stated that only first seniority list to be treated as 'Provisional' and every other list as a final his. He submitted that these appellants enjoyed seniority position over and above the private respondents for' over a decade without objection and thus acquired vested right which under the principle of locus poenitentiae cannot be altered, varied or rescinded. On the point of fixation of 50% quota for promotee and direct recruits, he stated that at the time when these appellants were promoted the provision of quota was discontinued in view of the report of the Civil Services Commission (1978- 79), whereby direct appointment to B-17 was discontinued thus the quota, if any, in no case would be applicable so far the present appellants are concerned. Besides, as argued by learned counsel, the ratio of quota cannot be extended for fixation of seniority for which the only date of entry in particular grade/cadre on regular basis is the criteria as per mandatory provision of law. He, therefore, prayed that impugned seniority list being in violation of law may be set aside and the seniority list of Appeal, 1997 may be restored.
5. In rebuttal, learned counsel appearing for private respondents argued that tinder rule 5 of the West Pakistan Secretariat (Section Officers) Service.,Rules ,1962, read with Notification dated 10-10- 1993 issued by Government of Sindh, Services and General Administratio Department, Karachi, 50% of the posts of Section Officers shall be filled by initial recruitment and 50% by way of promotion.
Since the appellants were promoted beyond the prescribed ratio, therefore, in view of the settled law their promotions have the character of ad hoc appointments. Reliance is placed on (1) 1985 SCMR 186 (Federation of Pakistan v. Azam Ali and others) (2) 1985 SCMR 1107 (Malik Ghulam Rasool v. Govt. Of Punjab and others), (3) PLD 1993 SC 10 (Muhammad Nawaz Khan v. Muhammad Ijaz Rashid and others), and (4) 1994 PLC (C.S.) 921, Nasimul Haque Malik v. Chief Secretary, Sindh and others). As regards report of the Civil Services Commission (1978-79), it has been contended that it was never implemented and the same, being a recommendation, has no legal value, besides it applies only to the employees of Federal Government.
6. Further, it has been submitted by learned counsel appearing for direct recruits Section Officers that the seniority list earlier issued vide Notification dated 24-3-1998 was purely in accordance with the existing rules and was final but without any legal justification at the instance of promotee Section Officers, the same was treated as 'Provisional' and fresh seniority list was prepared through impugned Notification dated 19-8-1999 wherein the benefit which was allowed to direct recruits batch of 1988 was not extended to the direct recruits batch of 1992 and 1996. Therefore, the seniority list issued vide Notification dated 24-3-1998 may be restored.
7. We have carefully considered the submissions raised at the Bar and with the able assistance of learned counsel for the parties have gone through the case files and the case-law referred to by them.
8. Contention that only first seniority list to be treated as 'Provisional' and every other list a 'Final Seniority List' has no force. Seniority lists were liable to be changed from time to time on account of new inductions into services and various grades thereof. Therefore, no finality could be attached to seniority lists. Reference in this regard is invited to the case of Chaudhry Nazar Muhammad v. Govt.
Of Punjab and others, 1996 SCMR 68, wherein it has been observed:-- "Seniority lists were liable to change from time to time on account of new inductions into services and various grades thereof---No finality was attached to seniority lists---Such lists, however to conform to rules for time being applicable to its preparation, maintenance and revision---Seniority list' of one year, therefore, would not of its own force be decisive of corrections and validity of subsequent lists."
9. Next contention that in view of report of the Civil Services B Commission (1978-7.9), the provision of quota and direct appointment to 17 were discontinued, therefore, the ratio of 50% quota would not be applicable to promotee Section Officers, has also no substance. The same was merely a report whereby certain suggestions were recommended to be adopted. The said recommendation cannot annul the Act and the Rules framed thereunder. The 50% ratio between the direct and promotee Section Officers was fixed under the West Pakistan Secretariat (Section Officers) Service Rules, 1962 read with Notification dated 10-10-1993 issued by the Government of Sindh in pursuance of sub-rule(2) of rule 3 of the Sindh. Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. The Rules framed under the provisions of Statute cannot be amended, discarded or bypassed through policy decision or any other recommendation. If any authority on this point is needed, reliance can be placed on the case of Muhammad Bhai and another v. Islamic Republic of Pakistan, PLD 1980 Karachi 166.
10. Now the only question, which requires consideration, determination and adjudication, is:-- "Whether the impugned Notification dated 19-8-1999 relating to the fixation of interse Seniority between promotees and direct recruits Section Officers is in conformity with the prescribed Rules and settled preposition of law."
' Admittedly all but two of the contesting Section Officers (who are 75 in all) were promoted and directly recruited as per method of recruitment provided in rule 5 of the erstwhile West Pakistan Secretariat (Section Officers) Service Rules, 1962, which reads as under:- "Method of recruitment:--(1) Recruitment to the Service shall be made as follows:--
(a) Fifty per cent of the vacancies shall be filled by initial . Recruitment based on the result of a competitive examination .Held by the Commission.
(b) The remaining fifty per cent of the vacancies shall be filled by selection on merit with, due regard to seniority from among the Superintendents of the West Pakistan Secretariat (Ministerial)
Service, or if no such Superintendent are considered suitable for appointment to the service from amongst the Assistants of the West Pakistan Secretariat (Ministerial) Services."
' Two of the contesting Section Officers namely Moazam Ali (Appeal No.27 of 2000) and Khalilur Rehman Sheikh (Appeal No.28 of 2000) were inducted directly under the method of appointment Notified by S&GAD, Government of Sindh, on 10-10-1993, which reads as under:-- "(i) 50% initial appontment;
(ii) 50% by promotion as under:
(a) 30% by promotion from amongst the Superintendents (B-16) working in the Sindh Secretariat.
(b) 20% by promotion from amongst the Private Secretaries (B-16) .Working in the Sindh Secretariat."
' Adherence to rule 5 of Service Rules of 1962 and Notification dated 10-10-1993 supra, which spells out the mode and method of recruitment and adherence to ratio of promotees. And direct recruits (which remain 50:50 in both) forms the cardinal basis for deciding the real controversy between the parties.
11. Simple perusal of the method of recruitment, makes it abundantly clear that every time when a vacancy becomes available, the C same has to be filled in the proportion of 50: 50 from each category of promotee and direct recruits.
12. It has been contended that appellants in appeals Nos.360, 361, 363/1999 were promoted much earlier on regular basis than the direct recuits, therefore, under sections 8(3) & (4) of the Sindh Civil Servants Act, 1975, the Civil Servant appointed earlier on regular basis shall be ranked senior to those appointed later. It is true that these Section Officers were promoted earlier on regular basis.
This, however, by itself not create the eligibility or the right nor alters the statutory position. Rule 8 of the Sindh Civil Servants Act, 1973, cannot be read in isolation. The eligibility of a departmental candidate for promotion has been expressly provided for in section 9 of the Sindh Servants Act, 1973, which reads as under:-- "9(1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service, or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed---
(a) in the case of a selection post, on the basis of selection on merits; and
(b) in the case of a non-selection post, on the basis of seniority-cumfitness."
13. An narrated above, it is not disputed that West Pakistan Secretariat (Section Officer) Service Rules, 1962 so also method of recruitment notified by Sindh Government on 10-10-1993, regulating the maintenance of quota of direct recruits and the promotees held the ground. Even otherwise, adherence to quota laid down in the rules governing a particular class of civil servants has been taken care of in section 9 of the Act of 1973, creating an eligibility' of departmental employees for promotion to the higher grade only against the reserved posts and none else. In a very similar situation, the Honourable Apex Court in a case of Federation of Pakistan v. Azam Ali and others, 1985SCMR 386, observed that:-- "It follows from section 9 of Act, which provision the Tribunal failed to even take note of that departmental candidate are eligible for promotion only against the quota reserved under the rules of their promotion. It is not disputed that the reservation was in the ratio of 75 to 25 per cent, in favour of the direct recruits. The departmental candidates were, therefore, not eligible for promotion against quota in excess of the quota reserved for them. The fact remains that promotion for excess of the quota was made. It could be by altering the ratio itself which was never expressly done or it could be as envisaged in the Act itself pending recruitment in accordance with the prescribed method. The direct recruitment takes some time in advertising the posts, in determining the eligibility and in selecting the candidates. While this procedure is being undergone it may be that the promotion posts meant for direct recruits cannot be kept unfilled and the jobs cannot remain unperformed. To cater for .Such a situation the departmental promotion is provided for but it is only pending the selection of the dire& recruits and such an appointment on the strength of the definition of ad hoc appointment qualifies as ad hoc appointment. An appointment cannot be treated as regular even though it be made in violation of section 9 of the Act. The Tribunal, it appears, has while interpreting rule 7 of the Appointment, Promotion and Transfer Rules and the other provisions ignored altogether the existence and the legal effect of section 9 of the Act. The view taken of in isolation is not in accord with the express provisions of section 9 of the Act."
' The above dictum was followed in subsequent case of Malik Ghulam Rasool v. Government of Punjab, 1985 SCMR 1107 wherein it was declared that promotion/appointment of petitioner in that case being on adhoc basis in excess of quota reserved for promotees and against a post meant for initial reeruitment, on arrival of rightful person, he would stand reverted in normal course.
Similarly in the case of Muhammad Nawaz Khan v. Muhammad Ijaz Rashid, PLD 1993 SC 10, it has been observed that direct recruits appointed against reserved seats having fallen vacant earlier in time shall rank senior to promotees holding officiating appointment, though promoted earlier than the direct recruits. Azam Ali's case was relied and referred to in the case of Nasimul Haque Malik v. Chief Secretary, Sindh and others 1996 PLC (C.S.) 921 decided by Honourable Supreme Court of Pakistan.
14. The crux of the above referred reported case is that every time a vacancy becomes available, the same,has to be filled in the proportion of 50: 50 from each category of promotees and direct recruits as provided under the rules, but if any category of, these groups is appointed in excess of their reserved quota, then such appointments/promotions have the character of ad hoc appointment and these appointments are not to be considered as regular. The seniority of such persons shall, therefore, not count from the date (s) from which the appointments/promotions were actually made but from the date or dates from which they would have been appointed, if the quota had been properly followed.
15. It is not the case of promotee Section Officers that the impugned seniority list has not been drawn/prepared according to the ratio prescribed. Their only grievance is that since they were promoted much earlier on regular basis as such they should have been ranked senior to those appointed later, which in view of what has been discussed above is not tenable.
16. So far case of direct recruits Section Officers is concerned, they pleaded that the seniority list earlier issued vide Notification dated 24-3-1998 was legal and proper but it was treated as 'Provisional' and fresh impugned seniority list through Notification dated {9-8-1999 was prepared whereby the benefit which was allowed to direct recruits of 1988 was not extended to the direct recruits batch of 1992 and 1996. This plea appears to be fallacious. There is nothing brought on the record to indicate as to how the benefit extended to batch of 1988 was not extended to them. As observed earlier that every time a vacancy becomes available the same has to filled in the proportion of 50: 50 from each category of promotees and direct recruits and if any category of these groups is appointed/promoted in excess of their quota in the particular year would rank junior. These direct recruits (appellants in Appeals Nos.379 of 1999, 6/2000 to 22/2000), claiming seniority over and above 21 promotees and 9 direct recruits. Out of 21 promotees 8 were promoted on 12-9-1983, 1 on 12-2-1984, 5 on 6-2-1986, 2 on 17-2-1986 and 5 on 21-10-1987, while out of 9 direct recruits, 6 were appointed on 25-9-1991. 1 each on 13-10-1991, 15-10-1991 and 2-6-1992. While appellants in Appeals Nos.27 and 28/2000 who too are direct recruitees appointed on 29-5-1.996 and 17-6-1996, claiming seniority over and above 68 promotee Section Officers, out of whom 5 were promoted on 20-10-1987, 14 were promoted on 5-10-1988, 1 on 26-12-1998, 24 on 1-2-1994, 1 each on 28-4-1994, 28-7-1994 and 28-8-1994 and 23 were promoted on 31-8-1995. Neither in the departmental appeal, nor in the memo. Of appeal nor during the course of arguments a single word has been said as to how the prescribed ratio in between the direct recruits and promotees was not maintained while preparing the impugned seniority list notified on 19-8-1999. Mere raising a plea in the absence of any mathematical calculation per se holds no ground to declare the impugned seniority as illegal, unjustified and in violation of the prescribed ratio. Contention that in the earlier seniority list notified on 24-3-1998 these direct recruits were shown over and above the promotee Section Officers and it was prepared after due deliberation and proper consultation by the High Power Committee, therefore, the same may be restored, carries no force. Admittedly, there was hue and cry at large scale against the said seniority list dated 24-3-1998 and the authority competent in order to rectify the mistakes, if any, declared the same as provisional and thus committed no wrong. However, after conducting thorough exercise and mathematical calculation, fresh seniority list dated 19-8-1999 impugned herein was drawn. It may be stated that in the previous seniority list the names of these Section Officers were also included who had either retired or expired long before. It is worthwhile to mention here that apart from section 21 of the General Clause Act, 1897, power of recession or recall of the earlier order is always available to the authority passing an earlier order. Admittedly, under section 8 of the Sindh Civil Servants Act, 1973, seniority is not a vested right of the Civil Servant. Thus, placement of any civil servant in the seniority list over and above other civil servants does not confer any vested right on him to invoke the doctrine of locus poenitentiae, as has constantly been followed by all the Courts/Tribunals. If any case-law is needed, reference can be made to Pakistan v. Muhammad Himayatullah Farukhi, PLD 1969 SC 407 and latest case of Muhammad Zakir Khan v. Govermnent of Sindh and others 2004 SCMR 497/2004-PLC (C.S.) 420. Needless to add that if the ratio between the two categories i.e. Between direct recruits and promotees in manifestly disturbed, rectification in that case is the only course of action left for meeting the ends of justice.
17. For the aforesaid reasons, these appeals being devoid of merit are hereby dismissed, leaving the parties to bear their own costs.
18. Announced in open Court.