JUSTICE (RTD) ABDUL GHANI SHAIKH, CHAIRMAN - Through the instant appeal, appellant has assailed the Notification dated 04.11.2002 issued by respondent No. 3 whereby private respondent No. 4 has been assigned seniority over and above the appellant as Professor of Orthopaedic Surgery (BS-20).
2. Relevant facts for the purpose of disposal of the instant appeal are that appellant was initially appointed as Assistant Professor, Orthopaedic Surgery in teaching cadre on ad hoc basis on 07.04.1985. On being selected by the Sindh Public Service Commission, appellant was appointed as Assistant Professor or regular basis on 15.09.1987. While private respondent No. 4 was appointed as Assistant , Professor initially on ad hoc basis on 05.02.1987 and on regular basis on 30.05.1989.
However, they both were promoted as Associate Professor vide Notification dated 29.03.1993. In a seniority list appellant was at Sr. No. 4 while private respondent No. 4 was at Sr. No:
5. It may be stated that appellant and private respondent No. 4 were allowed to hold the "post of Professor of Orthopaedic Surgery (B-20) on acting charge basis vide separate Notifications dated 22.12.1992 and 12.0S.t993 respectively. However, by order dated 20.01.994 the then Chief Minister, Sindh, in exercise of powers u/s. 24 of Sindh Civil Servants Act, 1973, declared private respondent No. 4 as senior to appellant in B-20 in all respect. Appellant after availing departmental remedy which was dismissed vide order dated 31.05.1994, filed service appeal No. 86/1994 before this Tribunal, which by judgment dated 31.12.1996 was allowed whereby the original order dated 20.01.1994 and appellate order dated 31.05.1994 were set aside and appellant was declared senior to private respondent No. 4. On the one hand appellant submitted copy of this Tribunal's judgment to the Chief Secretary, Sindh for its proper implementation with a request that private respondent No. 4 may not be regularized to the post of Professor (B-20) before appellant's regularization as he has been declared senior to private respondent No. 4, On the other hand, private respondent No. 4 challenged this-Tribunal's judgment before Honourable Supreme Court of Pakistan in C.P.L.A. No. 29- K/1997. During pendency of C.P.L.A. Before Honourable Supreme Court and appellant's representation before the Chief Secretary, Sindh, the private respondent No. 4 vide Notification dated 07.03.1997 was promoted to the post of Professor of Orthopaedic Surgery (B-20) subject to the condition that same would be without prejudice to the seniority has senior which is sub-judice and he is allowed to continue on the same post in D.M.C. Karachi till further orders. Subsequent thereto, private respondent No. 4 did not press his C.P.L.A. Before Honourable Supreme Court which was accordingly dismissed as not pressed as per order dated 07.11.1997. Appellant challenged Notification dated 07.03.1997 by filing review petition before Hon'ble Supreme Court dated 05.04.1997 claiming that in view of this Tribunal's judgment and dismissal of C.P.L.A. Before Honourable Supreme Court as not pressed, he being senior to private respondent No. 4 and that he would be completing prescribed length of service for promotion to B-20 on 07.04,1997. However, appellant was promoted to B- 20 as Professor of Orthopaedic Surgery on regular basis vide Notification dated 27.08.1999. Appellant thereafter submitted a departmental representation to the then Chief Minister, Sindh claiming benefit of Rule 13 of the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1975 and seniority over private respondent No. 4. After lengthy correspondence between Health, Law and Services & General Administration Department so also legal opinion of Law Department, appellant vide Notification dated 07.01.2000 was allowed to retain his original seniority and he was placed over and above private respondent No. 4 in the light of Rule 13 of the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1975 for all practical purposes. According to appellant although the matter ended there once for all, but subsequent thereto on the representation of private respondent No. 4 and in exercise of the powers u/s. 24 of the Sindh Civil Servants Act, 1973, the Governor of Sindh (exercising powers of Chief Minister, Sindh) assigned seniority to private respondent No. 4 over and above appellant vide Notification dated 04.11.2000 and cancelled/withdrawn the earlier Notification dated 07.01.2000 issued in favour of the appellant. After availing departmental remedy, which remained unresponding, appellant has invoked the jurisdiction of this Tribunal.
3. In support of appeal, learned counsel for the appellant argued that as a matter of fact the dispute of seniority between appellant and private respondent No. 4 has already been settled once for all by this Tribunal in appeal No. 86/1994 earlier .Filed by appellant, which judgment was challenged by private respondent No. 4, in C. P:L.A. No. 29-K/1997 before Honourable Supreme Court of Pakistan and by order dated 07.11.1997, it was dismissed as withdrawn, thus the judgment passed by this Tribunal attained finality. Further, learned counsel submitted that meanwhile private respondent No. 4 was promoted as Professor initially on acting charge basis vide-Notification dated 07.03.1997 and then on regular basis vide Notification dated 08.04.1997 w.e.f. 07.03.1997 on the condition that the promotion shall not confer on him any right whatsoever to claim seniority over his seniors: Against which appellant preferred departmental appeal to the Governor of Sindh, the same was forwarded to S&GAD for necessary action. The matter was then referred to the Law Department and finally on the advice of Law Department duly supported by S&GAD, appellant vide Notification dated 07.01.2000 was declared senior to private respondent No. 4, however, in utter derogation of the law and the principles of natural justice, the said Notification was cancelled/withdrawn and private respondent No. 4 was assigned seniority over and above the appellant vide Notification dated 04.11.2000, which being illegal, mala i.e, ab initio null and void may kindly be set aside.
4. In rebuttal, learned counsel for private respondent No. 4 contended that appeal is not maintainable as neither the appointing authority nor the appellate authority have been joined as party in the instant appeal, besides, it is hit under the principles of res judicata. Further, he stated that this Tribunal had earlier decided the matter between the parties to the extent of seniority in Grade 18 and 19 and not the seniority in Grade-20 and since the private respondent No. 4 has been promoted to B-20 on regular basis much prior to appellant, as such, the former has rightly been declared senior by virtue of section 8(4) of the Sindh Civil Servants Act, 1973, which provides that a seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment of such civil servant to the post, service or cadre. He added that issue in an earlier litigation between the parties before this Tribunal was with regard to seniority in Grade B-18 and 19, which was decided by this Tribunal vide judgment dated 31.12.1996, which was challenged by answering respondent No. 4 in C.P.L.A. No. 29-K/1997, before the Honourable Supreme Court of Pakistan, however, during its pendency the answering respondent No. 4 was promoted to B-20 w.e. f. 07,03.1997 prior to appellant, as such, no useful purpose could have been served to pursue the matter before the Honourable Supreme Court, therefore, it was not pressed and that withdrawal of Civil Petition by answering respondent does not confer any right to the appellant to claim seniority over and above the answering respondent No. 4.
5. Learned Asstt. A-G. Appearing on behalf of official respondents Nos. 1 to 3, while supporting the case of private respondent No. 4, stated that condition attached to private respondent No. 4's Notification dated 08.04.1997 was later-on withdrawn vide corrigendum issued by S&GAD on 23.07.1997.
6. We have anxiously considered the above submissions and have minutely gone through the case paper. Contention that appeal is not maintainable for conjoining of appointing authority and appellate authority as party in the appeal, has no force. The appellant has joined Government of Sindh as one of the respondent in the instant appeal, which services the purpose. The second contention that appeal is barred under the principles of res judicata, too has no force. According to private respondent No. 4 himself, in reply to para-8 of the memo, of appeal that subject-matter in the earlier round of litigation between the parties was only to the extent of seniority in Grade 18 and 19 and not the seniority in Grade-20. In fact in the instant appeal and altogether new Notification which affects the rights of appellant has been challenged and that being new cause of action, principle of res judicata is no attracted.
7. There is no denial of the fact that appellant was appointed as Assistant Professor, Orthopaedic Surgery in teaching cadre initially on ad hoc basis on 07.04.1985 and regularized as such on 15.9.1987, whereas private respondent No. 4 was appointed in the same capacity initially on ad hoc basis on 05.02.1987 and regularized as such on 30.05.1989. It is thus clear that appellant was senior to private respondent No. 4 in the cadre of Assistant. Professor. Both of them were, however, promoted as Associate Professor (B-19) vide one and same Notification dated 29.03.1993, therefore, in view of proviso to subsection (4) of Section 8 of Sindh Civil Servants Act, 1973 they shall retain their inter se seniority as in the lower post. For the sake of convenience proviso to sub-section (4) of Section 8 of Sindh Civil Servants Act, 1973 is reproduced hereunder:- "Provided that civil servants who are selected for promotion to a higher post in one batch shall on their promotion to the higher post, retain their inter-se seniority as in the lower post."
It may be stated that at no stage private respondent No. 4 challenged the above legal and factual position of seniority of appellant.
8. Subsequent thereto, appellant and private respondent No. 4. Vide separate Notifications dated 22.12.1992 and 12.09.1993 respectively were allowed to hold the post of Professor of Orthopaedic Surgery (B-20) on acting charge basis. Thereafter, by an order dated 20.01.1994 the then Chief Minister, Sindh, in exercise of powers u/s. 24 of the Sindh Civil Servants Act, 1973, declared private respondent No. 4 as senior to appellant in B-20 in all respects, which caused serious grievance to appellant to challenge the said order before the departmental appellate authority but his representation/ appeal was rejected as per order dated 31.05.1994. Appellant thus filed service appeal No. 86/1994 before this Tribunal, which by judgment dated 31.12.1996 was allowed and both the orders dated 20.01.1994 and dated 31.05.1994 were set aside, on two-fold grounds; firstly that under section 8(4) of the Sindh Civil Servants Act, 1973, the seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment of such civil servant to the post, service or cadre. But since both the contesting parties were allowed to work as Professors (B-20) on acting charge basis and not on regular basis, therefore, the order declaring private respondent No. 4 as senior to appellant was declared as premature and secondly; the power u/s. 24, Sindh Civil Servants Act, 1973 can only be exercised in a just and equitable manner and not at the cost of rights of other civil servants as has been held by Honourable Supreme Court of Pakistan in the case of Ahsanullah Memon reported as 1993 PLC(CS)
937. At the one hand the private respondent No. 4 challenged this Tribunal's judgment dated 31.12.1996 before Honourable Supreme Court of Pakistan In C.P.L.A. No: 29-K/1997 while on other hand appellant submitted copy of this Tribunal's judgment to the Chief Secretary, Sindh for its- proper implementation with a request that private respondent No. 4 may not be regularized to the post of Professor (B-20) before appellant's regularization.
9. However, during the pendency of Civil Petition before Honourable Supreme Court, private respondent No. 4 surprisingly once again was promoted to the post of Professor (B-20) on acting charge basis vide Notification dated 07.03.1997 with immediate effect, subject to the condition that same would be without prejudice to the seniority of his senior which is sub-judice. In fact there was no justifiable reason for issuance of Notification dated 07.03.1997, as private respondent No. 4 was already allowed to hold the post of Professor B-20 on acting charge basis vide Notification dated 12.09.1993, which Notification was in tact. In any case just within a month vide another Notification dated 08.04.1997 private respondent No. 4 was promoted to the post of Professor (B-20) on regular basis w.e.f. 07.03.1997 on the same condition that the promotion shall not confer on him any right whatsoever to claim seniority over his seniors. Again after about three months the said condition as per corrigendum dated 23.06.1997 was withdrawn. Since private respondent No. 4 was promoted to the post of Professor (B-20) on regular basis w.e.f.
07.03.1997, as such according to him the C.P.L.A. No. 29- K/1997 became infructuous, the same was not pressed and thus dismissed as being not pressed on 07.11.1997. The appellant who was promoted to the post of Professor (B-20) on regular basis later-on vide Notification dated 27.08.1999, submitted departmental representation to the then Chief Minister, Sindh, claiming benefit of Rule 13 of the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1975, which representation after consultation with S&GAD and opinion of Law Department was allowed and by Notification dated 07.01.2000 appellant was allowed to retain his original seniority and he was placed over and above private respondent No. 4. The matter thus ended there, but private respondent No. 4 approached the then Governor of Sindh (exercising the powers of Chief Minister) who in exercise of powers u/s. 24 of the Sindh Civil Servants Act, 1973, assigned seniority to private respondent No. 4 over and above the appellant vide Notification dated 04.11.2000, as a result whereof, the Notification dated .07.01.2000 issued earlier in favour of appellant was cancelled/withdrawn, which has been assailed herein in the instant appeal.
10. As has been stated above, appellant was senior to the private respondent No. 4 in the cadre of Assistant Professor, which seniority the appellant retained in the cadre of Associate Professor (B-19) also appellant was then allowed to hold the post of Professor (B-20) on acting charge basis vide Notification dated 22.12.1992 presumably for the reason that^y the time he had not completed the specified length of service. Private respondent No. 4 too was allowed to hold the post of Professor (B-20) on acting charge basis vide Notification dated 12.09.1993. Since the appellant was appointed on acting charge basis earlier than private respondent No. 4, therefore, in view of sub- rule (2) of Rule 8- A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974. a junior to him shall not be considered for regular promotion. Sub-rule.(2) of Rule 8-A of Rules of 1974, reads as under:- "(2) So long as a civil servant holds the acting charge appointment, a civil servant junior to him shall not be considered for regular promotion but may be appointed on acting charge basis to a higher post."
In view of above mandatory provision of law, private respondent No. 4 was not even eligible to be considered for regular promotion prior to the appellant. However, in violation of the above mandatory provision of law, the private respondent No. 4 was promoted to the post of Professor (B- 20) on regular basis prior to appellant. In any case, appellant who was senior to his junior in lower grade by virtue of his earlier appointment would carry his seniority in higher grade over , his junior, unless it is proved that he had been superseded or deferred in accordance with law. There is nothing on the record to indicate even remotely the appellant was superseded and not considered due to his unfitness for promotion. It was for that reason that appellant after his promotion to B-20 on regular basis moved departmental representation to the then Chief Minister, Sindh, claiming benefit of Rule 13 of the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1975, which for the sake of convenience is reproduced hereunder:- "13. A civil servant, who is not promoted on his turn on the ground that:-
(i) his seniority is under dispute or is not determined;
(ii) he is on deputation, training or leave; or
(iii) disciplinary proceedings are pending against him; or
(iv) he is not considered for promotion for any reason other than his unfitness for promotion; shall, on subsequent promotion, subject to any . Order made by the competent authority in this behalf for the purpose of inter se seniority in the higher post be deemed to have been promoted in the same batch as his juniors."
In a case of Gul Muhammad Hajano v. Federation of Pakistan and others (2000 PLC (CS) 46, the Honourable High Court of Sindh, while referring Rule 13 /b/d,-observed as under:- "11. It may be recalled that under section 8 of the Sindh Civil Servants Act, the seniority of a civil servant is reckoned from the date of his regular appointment to a post in a grade. The above rule provides that if he is not considered for promotion on his turn for no fault of his, he will not been prejudiced by earlier promotion of his juniors and, into higher grade he would be treated senior to his immediate junior in the lower grade. This rule is designed to prevent a chaos that may arise through decision reconsidering seniority of civil servant and to ensure that instead of claiming mechanical promotion on account some mistake of the department, a civil servant must first establish his fitness for promotion and then, after being promoted, claim benefit of seniority denied through the mistake."
Keeping ' In view the above provision of law, appellant's representation after consultation with S&GAD and legal opinion of Law Department was allowed and by Notification dated 07.01.2000 issued with the approval of competent authority i.e. The then Chief Minister, Sindh, appellant was allowed to retain his original seniority and was placed above the private respondent No. 4 in the light of rule 13 ibid for all practical purposes. Thus the genuine grievance of the appellant was redressed once for all.
11. However, on appellant's move, the then Governor of Sindh (exercising the powers of Chief Minister due to enforcement of Governor Rule in Sindh Province), in exercise of powers u/s. 24 of the Sindh Civil Servants Act, 1973 assigned private respondent No. 4 seniority in B-20 over and above the appellant vide Notification dated 04.11.2002 and cancelled the earlier Notification dated 07.01.2002 issued in favour of appellant. Section 24 of the Sindh Civil Servants Act, 1973, read as follows:- "24. Nothing in this Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it be just and equitable:-- Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
It is well-settled principle of law that pienaar^ powers u/s. 24 ibid can only be exercised in a just and equitable manner and not at the cost of the rights of other civil servants. Reference is invited to Ahsanullah Memon's case decided by the Honourable Apex Court reported as 1993 PLC (CS) 937. In another case of Khalil Ahmad Soomro v, Government of Sindh and others (1994 PLC (C.S.) 201, it has been held that:- "Section 24, Sindh Civil Servants Act, 1973, confers exceptional powers on the government which can be exercised only in exceptional circumstances, Government however, was not invested with unlimited powers under section 24, Sindh Civil Servants Act, 1973. Provision of section 24, Sindh Civil Servants Act, 1973, could not be invoked unless any particular case was made out to be a case of hardship. Government can grant any benefit it considers just and fair but not at the cost of others for power under section 24, Sindh Civil Sen/ants Act, 1973, was a power for redress of providing relief and not of impairing statutory rights of any one else. Government in exercise of residual powers, has to be guided and found by law."
It may be re-called that earlier the then Chief Minister, Sindh, in exercise of powers u/s. 24 of the Sindh Civil Servants Act, 1973, declared the private respondent No. 4 as senior to appellant vide Notification dated 20.01.1994 which was challenged in appeal No. 80/1994 before this Tribunal. The said appeal was allowed and the Notification dated 20.01.1994 was declared as not maintainable, but once again while by passing and ignoring the judgment of this Tribunal which on withdrawal of C.P.L.A. No. 29-K/1997, by respondent No. 4 from Honourable Supreme Court of Pakistan, attained finality, the Governor of Sindh (exercising the powers of Chief Minister, Sindh), could not have exercised powers u/s. 24 of the Sindh Civil Servants Act, 1973, which in the given circumstances and the aforesaid reasons is neither maintainable nor sustainable.
12. For what has been stated above, the impugned Notification dated 04.11.2000 is hereby set aside and the earlier Notification dated 07.01.2000 is restored. The appeal stands allowed, with no order as to costs.
13. Announced in open Court.
Given under our hands and seal of the Tribunal, this 26th day of June, 2006.