' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).-- -Relevant facts for the purpose of disposal of the instant appeal as emerged out from the case file are that appellant joined Technical Education Department as Junior Lady Teacher on 3-6-1979 and was promoted/ appointed as head Mistress (B-11) on 4-6-1987 on regular basis. She was however, posted against the post of junior instructress (B-14) at Government Vocational Institute for Women (G.V.I.W) Khadda, Karachi. According to her she was eligible/entitled to promotion to the post of junior Instructress (B-14) in the year, 1992 but her case was not considered and instead her junior namely Mst. Shamim Fatima Zaidi (Private respondent No,4) was promoted. She approached the higher authorities of the department for her promotion. On getting no response, she was constrained to file C.P. No, D-435 of 2001 before the Honourable High Court of Sindh Karachi which vide order dated 29-8-2001 was allowed and the department was directed to convene a meeting of Departmental Promotion Committee within two months to determine the fitness of eligible candidates for promotion and pass appropriate order.
In compliance to the said directives meeting of D.P.C. Was convened which recommended appellant and many others for promotion to the post of Junior Instructress (B-14) and in pursuance thereto an office order dated 11-8-2001 was issued by the Directorate of Technical Education Sindh Karachi whereby appellant and 4 others were promoted to J.I. (B-14) with immediate effect.
According to appellant the said promotion order in fact was issued on 28-1-2002 showing back, dated 11-8-2001 and her joining was also obtained from 12-8-2001. Feeling aggrieved with the words "with immediate effect" in the order dated 11-8-2001 appellant preferred departmental appeal to respondents on 21-2-2002 which remained unresponded and after waiting for 90 days of statutory period she has filed instant appeal before this Tribunal on 10-6-2002.
2. Official respondent Nos. 2 and 3 as well as private respondent No, 4 filed their respective written statements while respondent No,1 adopted the written statement filed by other official respondents.
3. The case of official as well as private respondents is that private respondent No,4 is much senior than the appellant. According to them the private respondent was appointed as Junior Mistress (B- 5) on 12-1-1974, Head Mistress (B-6) on 2-8-1980, Mistress (B-8) on 10-3-1984, Head Mistress (B-11) on 19-4-1992 and Junior Instructress (13-14) on 4-12-1997 as against that, appellant was appointed as Junior Mistress (B-5) on 3-6-1979, directly appointed as Head Mistress (B-11) on 1-6-1987 and promoted as Junior Instructress (B-14) on 11-8-2001. Therefore, the claim of seniority and ante- dated promotion of appellant is neither justified nor proper and reasonable. It is also the case of respondents that since no other post of Junior Instructress (B-14) was vacant in 1992/1997, therefore, question of consideration of appellant's name for promotion at that relevant time does not arise.
4. Heard learned counsel for the parties at length and with their able assistance also perused the case papers made available before us. Learned counsel for appellant also filed written argument, copy of which also supplied to the counsel for respondents, but they said they said nothing in rebuttal.
5. Learned counsel appearing for their respective parties confined their arguments to the averments raised in the memo. Of appeal and the written statements and the documents annexed thereto. The crux of the arguments of learned counsel for appellant is that the seniority of private respondent No,4 has already been determined by this Honourable Tribunal in Appeal No,105 of 1993 filed earlier by private respondent No,4 and decided vide judgment dated 5-4-1994, the copy of which he annexed with the written arguments. Therefore as argued by him respondent No, 4 being junior to appellant was not entitled to promotion to B-14 prior to appellant.
6. We have carefully considered the submissions raised by the parties. As a matter of fact and record, private respondent No,4 as well as official respondents suppressed the very material fact from the Court that private respondent No,4 had earlier filed Appeal No,105 of 1993 before this Tribunal with regard to her seniority which was dismissed by the Tribunal vide judgment dated 5- 4-1994. Perusal of said judgment reveals that private respondent No, 4 was initially appointed as junior Mistress (B-5) w,e,f,14-1-1974 but she resigned from the said job on 30-6-1979. She was reappointed as Assistant Mistress (B-6) in the Directorate of Technical Education w,e,f, 2-8-1980.
Her break in service from 30-6-1979 to 2-8-1980 was condoned treating the intervening period as leave without pay vide letter, dated 17-10-1991. Meanwhile private respondent No,4 was appointed in the post of Head Mistress (B-8) Government Vocational School for Girls, Nawabshah, under Women Division Programme w.e.f, 6-3-1984, which appointment was conditional inasmuch as that it was on provisional basis, continuing until availability of Funds. It will be pertinent rather expedient to reproduce the relevant pages 5, 6, 7 of the judgment passed in Appeal No,105 of 1993 by this Tribunal, which reads as under:-- "Coming to the merits of the appellant's case it may be noticed that the appellant's name appears at serial number 17 of the impugned seniority below the names of all the private respondents. The determining factor of the seniority is the date of regular appointment. In this connection reference may be made to sub-rule (1) of Rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, (hereinafter referred as Seniority Rules. The said sub-rule reads as under:--
(1) Subject to the provisions of rule 11, the seniority of a civil servant shall be reckoned from the date of his regular appointment.
In view of the above sub-rule the date of regular appointment is regarded as date of entry in the relevant cadre, which in turn determine the seniority in that cadre. On careful perusal of the impugned seniority list, it would be seen that the date of regular appointment of each Mistress specified in the list is mentioned in column 7 thereof. According to the entries made in the impugned seniority list the date of the appellant's regular appointment is 1-7-1992 whereas the appointment of all the private respondents in BPS-8 were regularized earlier than the said date.
Consequently, as per Rule 10(1) hereinabove they have been shown senior to the appellant, it is true that the appellant was inducted in the post of BPS-8 for the first time on 10-3-1984. The nature of her appointment in the said post can be ascertained from the appointment order which reads as under:-- "Mst. Shamim Fatima Zaidi, Head Mistress Government Vocational School for Girls, Naushero Feroze is hereby appointed as Mistress against the post of Head Mistress, Government Vocational School for Girls, Nawabshah under Women Division Programme with effect from 10-3-1984 on purely temporary basis at Rs,370 per month plus usual allowances as admissible under the rules in the Revised National Scale of pay No,8 i,e, Rs,370 (16-514/18-640-22-750) on the following term and condition.
' Her promotion will be on provisional basis and as long as the Women Division provide the funds this post will continue. In case funds are not provided by the Women Division, she will be transferred back to her original post."
' Thus, the appellant's appointment in the post of BPS-8 was purely temporary and on provisional basis depending upon the availability of funds to be provided by the Women Division (Federal Government). This has been admitted by the appellant herself in para.4 of her memo. Of appeal. By no stretch of imagination her such appointment can be held as appointment on regular basis.
Moreover her appointment by the aforesaid order appeared to have been made in ex-cadre post.
That is to say the post to which she was appointed was not included in her parent cadre. This is clear from the second para. Of the order which clearly shows that "in case funds are not provided by the Women Division, she will be transferred back to her original post". For these reasons we are of the view that the appellant's seniority in the cadre of BPS-8 cannot be reckoned from 10-3-1984, the date of her original appointment in that cadre. As disclosed in the impugned seniority list, the date of the appellant's regular appointment in the said cadre is 1-7-1992. Since this has been disputed by the appellant, the question would arise what was then the date of her regular appointment in cadre of BPS-8? When the learned counsel of the appellant was confronted with the above question, he was unable to give satisfactory reply. All what he submitted was that the appellant's appointment by afore-mentioned order was all along treated as regular appointment and, therefore, her seniority in the said cadre would be counted from the date of that order viz. 10- 3-1984. This argument is far from convincing. The learned counsel had clearly overlooked the language in which the above order is couched. If the said order treated as the order of appellant's regular appointment, there was no reason at least for the authorities who had so treated the order, to take a different stand, showing in the impugned seniority list that the appellant's appointment was regularized w,e,f, 1-7-1992."
7. The above said judgment has neither been challenged by private respondent No,4 nor by the official respondents before Honourable apex Court, the same thus, attained finality for all practical purposes and intents. Since date of regular appointment of private respondent No,4 as Mistress in B-8 is 1-7-1992 as determined by this Tribunal in judgment referred to above, therefore, she by no means can be termed as senior to appellant who was appointed as Head Mistress in B-11 on 4-6- 1987 i,e, 5 years prior to regular appointment of private respondent No,4 in B-8 and was eligible and entitled to promotion to the post of Junior Instructress (B-14) in 1992 when the same became vacant. In view of the fact that regular appointment of private respondent No,4 in B-8 was 1-7-1992 (as already determined by this Tribunal) her promotion to the post of B-11 on 19-4-1992 and B-14 on 4-12-1997 appears to be illegal and unwarranted but since no appeal against said promotion orders have been filed before this Tribunal we refrain over rules to pass any order and left it open for the department to look into that aspect and take action according to law.
8. For the aforesaid reasons, coupled with the judgment in Appeal No,105 of 1993 passed by this Tribunal on 5-4-1994, we are of the considered view that appellant being senior was eligible and entitled to promotion to the post of Junior Instructress (B-14) from the date the said viz. 4-12-1997 when the private respondent No,4 was promoted. Accordingly, the appeal is accepted to the above extent. The parties are left to bear their own costs.
9. Before parting with this judgment, we may observe here that official respondent No,2 and private respondent No,4 despite having knowledge of the judgment dated 5-4-1994 passed in Appeal No,105 of 1993 as they both were parties in the same, have suppressed the same from this Honourable Court. Neither official respondent No,2 nor private respondent No,4 in their respective written statements have said a single word about the earlier judgment passed by this Tribunal. In derogation and violation of the said judgment the private respondent No,4 was given undue advantage and favour by the official respondent No,2 and thus, committed grave "misconduct".
The copy of this judgment be transmitted to the Secretary Government of Sindh, Karachi for further needful.
10. Announced in open Court.