' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--Through the instant appeal, appellant has challenged the final seniority list of Field Assistants of Agriculture Research Wing as it stood on 1-9- 2000 circulated vide letter dated 14-9-2000 whereby appellant's seniority position was disturbed.
He jointly along with other Field Assistants preferred departmental appeal which was not responded to within stipulated period. Hence, this appeal.
2. In support of appeal, it was mainly contended that appellant and private respondents were serving as Field Assistants in the Agriculture Department. The appellant and private respondents Nos.3, 4, 6, 7 and 8 belong to Agriculture Research Wing while private respondent No.5 belongs to Adaptive Research Agriculture Extension Wing. The seniority lists of both the Wings right from the beginning were/are being maintained separately as is evident from the seniority lists of 1989, 1991 and 1995 of the officials of Agriculture Research Wing and that of 1993 of the officials of Adaptive Research Agriculture Extension Wing. In all the three seniority lists of 1989, 1991 and 1995 appellant's name was placed as proper place below the private respondents Nos.3,4,6,7 & 8. Respondent No.5 who belongs to Adaptive Research Agriculture Extension Wing was assigned seniority as Serial No.6 of the seniority list of 1993 of that Wing. This fact, according to learned counsel for appellant by itself was sufficient to prove that respondent No.5 has no concern with the employees of Agriculture Research Wing. However, all of sudden and without any justifiable reason in the latest seniority list of Agriculture Research Wing as it stood on 1-9-2000 circulated through letter dated 14-9-2000 (impugned herein), the name of private respondent No.5 was illegally and malafidely included therein, that too over and above the appellant. This illegal, and mala fide act on the part of respondent No.2 not only disturbed the appellant's old seniority position but also deprived him from promotion as on the basis of the impugned seniority list, all the private respondents were promoted- to the post of Assistant Research Officer (B-17) vide order dated 16-12-2000. Learned counsel for appellant, therefore, prayed that this Honouable Tribunal may be pleased to direct respondent No.2 to exclude the name of private respondent No.5 froth the impugned seniority list, set aside the order dated 16-1272000 promoting private respondents to the post of Assistant Researeh Officer and be further pleased to direct respondent No.2 to consider appellant's name along with other senior deserved employees for promotion to the post of Assistant Research- Officer (B-17).
3. In rebuttal, learned, 'counsel for respondent No.5 argued that respondent No.5 was appointed much prior to appellant as Field Assistant, Agriculture Research, Agriculture Department on 24-1- 1982. He was posted in Rice Research Sub-Station, Larkana, under the management, control and administration of Director General, Agriculture Research, Sindh at Tando Jam and is still under the same administrative department. However, in the year 1983 the Government of Sindh, Agriculture Department to booster research in agriculture sector started new set-up/wing in the name of "Adaptive Research Wing". Resultantly only the assets and liabilities of Rice Research Sub-Station, Larkana were transferred to the newly set-up/wing, while the respondent No.5 and one Chowkidar in exigencies of services were allowed to work in the said Rice Research Institute/Sub-Station, Larkana, but at no stage services of respondent No.5 were transferred to the newly set-up Adaptive Research Wing and he was continued to be employee of "Agriculture Reserch Wing". Further, it was submitted that respondent No.5's seniority was not being maintained in both the Wings, therefore, he moved an application for assignment of seniority. Ultimately, by order dated 9-3-1999, passed by respondent No.2 the missing time of respondent No.5 was ordered to be included in the seniority list of Field Assistants for the year ending 31-12-1995 of Agricultute Research Wing at Serial 'No.21 i.e. Below Mr. Abdul Razak and above Mr. Shamsuddin. Thus in the subsequent seniority list assiled in the instant appeal, name of respondent No.5 was rightly placed at proper place. Learned counsel for respondent No.5 also challenged the very maintainability of the appeal, on the ground that before invoking the jurisdiction of the Tribunal, a joint departmental appeal was filed which under sub-rule (2) of rule 3 of the Sindh Civil Servants (Appeal) Rules, 1980 was not competent, therefore, the instant appeal on the basis of incompetent departmental appeal is also not maintainable.
Besides, no departmental appeal was preferred against the promotion order dated 16-12-2000 before filing the instant appeal, therefore, in the absence of departmental appeal, this appeal on this count also is not competent.
4. Learned Asstt. A.G. Adopted the arguments advanced by Mr. Abdul Latif Ansari, learned counsel for respondent No.
5. Private respondents Nos.3, 4, 6, 7 and 8, however, after filing the written statement jointly with respondent No.5, chose to remain absent.
5. We have considered the above submission and with the able assistance of learned counsel appeared on behalf of their respective parties, have gone through the case papers.
6. It is settled law that filing of a departmental appeal before invoking the jurisdiction of Service Tribunal related to the terms and conditions of the service of the civil servant concerned, is a condition precedent. Sub-rule (2) of rule 3 of the Sindh.. Civil Servants (Appeal) Rules, 1980, provided that where the order of (the competent authority) affects more than one civil servants, every civil servant shall prefer appeal separately. In the present case, the appellant has challenged two A orders, firstly, the final seniority list of Field Assistants of Agriculture Research Wing as it stood on 1-9-2000 circulated through letter dated 14-9-2000, to the extent of inclusion in it the name of private respondent No.5, and secondly the order dated 16-12-2000 whereby all the six 'private respondents were promoted to the post of Assistant Research Officer (B-17). So far seniority list is concerned, the appellant before filing the instant appeal, challenged the same before the departmental appellate forum by way of joint appeal along with 10 of his other colleagues. The said departmental appeal in view of sub-rule (2) of rule 3 of the Sindh Civil Servants (Appeal) Rules, 1980, was not competent. It is a will-settled principle of law that if law, provides that a particular thing is to be done in a particular manner/way, it is to be done B either in the same way or not at all. So far second order of promotion dated 16-12-2000 is concerned, there is no mention in the memo. Of appeal, if it was at all challenged before the departmental appellate forum before filing the present appeal. Therefore, this appeal for the aforesaid reason, is not legally competent and maintainable. It is pertinent to mention here that subsequent to filing this appeal, appellant as it appears from the perusal of the case file, challenged the promotion order before the departmental appeallate authority. However,, it was rejected as per order dated 2-4-2001, which too the appellant has not challenged. The promotion thus has attained finality.
7. On merits- too, the appellant has no case at all. There is no denying the fact that private respondent No.5 was appointed as Filed Assistant in the Agriculture Research, Agriculture Department on 24-111-1982. He was posted at Rice Research Sub-Station, Larkana funotioning uner the management and administrative control of the Directorate General, Agriculture Research.
Subsequently, under the Government directives, perhaps to booster research in agriculture sector, a new wing namely "Adaptive Research Wing" was set up. Vide Notification dated 28-12-1983 issued by the Government of Sindh, Agriculture. Department, the liabilities and assets of .The Rice Research Sub-Station, Larkana were transferred to the newly-established "Adaptive Research Wing". There is, however, nothing available on the record to indicate even remotely, if the services of the respondent No.5 were ever transferred to the said Adaptive Research Wing. This fact finds support from letter dated 24-12-1999 of the Director, Adaptive Research Sindh, Hyderabad, addressed to the Director General, Agriculture Research. Hyderabad, contents of which for the sake of convenience are reproduced as under:- "In response to your letter captioned under reference above and to state that, no doubt Mr. Ahmad Ali Bugti, Field Assistant of Agriculture Research is working in Agriculture Extension, since 1983. Since, seniority has not been maintained in 'Agriculture Extension Wing. Why because his services were not transferred to Agriculture Extension, except the assets/liabilities of the Rice Research Sub- Station, Larkana vide Notification No.15(13) S.O. (Ext.0/82), dated 28-2-1983.
' The services of Mr. Ahmad Ali Bugti, Field Assistant are too essential for the benefit of the research work of the Adaptive Research Farm, Larkana, in the best interest of Government.
' It is therefore, recommended that his seniority may kindly be maintained in Agriculture Research Wing, from the date of his initial appointment in Agriculture Research as decided in your letter number quoted under reference above . However, his relieving will be considered as and when his services are required in Agriculture Research on priority basis."
8. From the careful scrutiny of the record made available before us by contesting parties, the name of respondent No.5 was inadvertently omitted, from the seniority lists prepared/issued from time to time by the Directorate of Agriculture Research Sindh. This omission was, however, rectified subsequently vide order dated 9-3-1999, passed by respondent No.2, which reads as under:-- "After going through the appeal in detail, the missing name of Mr. Ahmed Bugti, Field Assistant (BPS-6) formerly worked at Rice Research Sub-Station, Larkana is hereby included at Sr. No.21 i.e. After Mr. Abdul Razak son of Ghulam Umer under Sr. No 20 and before Mr. Shamsuddin son of Sona Khan under Sr. No.21 in, the Seniority list Filed Assistants for the year ending 31st December, 1993, issued by Agriculture Research Wing."
' This order was not only acted upon/implemented but it is an admitted fact that appellant did not agitate this order dated 9-3-1999 before any higher forum. The same too thus has attained finality.
Therefore, same is binding , between the parties in view of the law laid down by the Honourable Supreme Court in Pir Bakhsh v. Chairman Allotment Committee (PLD 1987 SC 145). Besides, the omission which was rectified subsequently, did not provide the appellant any cause of action to assail the seniority list. Consequently, this appeal is not maintainable on that score also.
9. It may be stated that one Mr. Naimatullah Dasti, President (SARFA) Association had also challenged the inclusion of name of respondc.h No.5, in the impugned seniority list, before the Secretary, Government of Sindh, Agriculture Department, and it was rejected as per letter dated 1st September, 2000. Said Mr. Naimatullah Dasti, however, not assailed the said rejection order before this Tribunal. It is also pertinent to point out here that appellant has unnecessarily joined private respondents Nos.3,4,6,7 and 8 as party in the instant appeal, as according to appellant himself these private respondents belong to Agriculture Research Wing and were admittedly seniors to him.
10. The upshot of the above discussion is that there is no merit in the instant appeal, the same is accordingly dismissed. Parties are however, left to bear their own costs.