JUSTICE (RETD.) GHULAM NABI SOOMRO, CHAIRMAN - Relevant facts for the purpose of disposal of the present appeal are that appellant per Notification dated 3.1.1990 was initially, appointed as Assistant Accounts Officer (BS-16) in Education Department on ad-hoc basis. By another Notification dated 7.11.1991 and with the approval of Competent Authority, appellant was- sent on deputation to the Finance Department as Resident Audit Officer (BS-16) for three years, which period was then extended for another two years per Notification dated 3.7.1994. Meanwhile, appellant appeared before Sindh Public Service Commission and declared successful and per Notification dated 3.7.1994 he was appointed on regular basis as Assistant Accounts Officer (BS-16) in Education Department. Subsequent thereto, with the approval of Competent Authority, appellant was permanently absorbed in Finance Department as Audit Officer (BS-16) in the Directorate of Local Fund Audit, Sindh, Karachi vide Notification 21.9.1995 on the prescribed condition and subject to the condition that he acquires qualification prescribed in the West Pakistan Local Fund Audit Department (Audit Officer) Rules, 1968. According to appellant, although it was not necessary for him and he was not supposed to pass such examination, as the said examination meant for the Auditors (BS-11) and not for the Audit Officer (BS -16), yet he appeared in the examination and declared successful per Notification dated 20.6.2002.
2. The grievance of the appellant is that the tentative seniority list as stood on 1.1.2002 was circulated on 10.12.2002, against which appellant filed his objections, but were not considered.
Eventually, the department issued final seniority list per letter dated 6.6.2003 placing appellant's name at Sr. No. 13. Feeling dissatisfied, the appellant preferred departmental appeal on 25.9.2003.
On the said appeal, the opinion of Law Department as well as Regulation Wing of S&GAD was called and they supported appellant's plea that seniority under Rule 10 of the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1975, shall be reckoned from the date of regular appointment and since the appellant was permanently absorbed in the Finance Department on 21.9.1995, therefore, his seniority would to be reckoned from that date. Despite such legal opinion in favour of appellant, his departmental appeal was rejected as per letter dated 27.9.1995. Hence, this appeal.
3. During pendency of the appeal, on an' application moved on behalf of appellant, the private respondent Nos. 3 to 14 were impleaded as respondents per order dated 12.10.2006. Respondents Nos. 1, 2 & 3 filed their separate written statements while respondents Nos. 4 to 13 field their joint written statement.
4. The case of official and private respondents in rebuttal is that the post of Audit Officer is a promotion post, therefore, appellant's absorption against the promotion post was illegal. Besides, appellant's absorption as Audit Officer was subject to the condition that he would acquire requisite qualification prescribed in the West Pakistan Local Fund Audit Department (Audit Officer) Rules, 1962 and since the appellant passed the Subordinate Accounts Service Examination (S.A.S.) in June, 2002, therefore, his absorption in the department would be reckoned from 20.6.2002 i.e, the date of passing of S.A.S. Examination and not from 21.9.1995 when his Notification of absorption was issued, thus the appellant was rightly placed at the bottom of final seniority list circulated on 6.6.2003.
5. In support of appeal, learned counsel for the appellant argued that as a matter of fact appellant was not supposed to appear and pass S.A.S. Examination as it was meant for non-gazetted Auditors (BS-11) and not for the Audit Officers (BS-16) yet the appellant appeared in the said examination and passed the same as per Notification dated 20.6.2002 in flying colours. He submitted that appellant was permanently absorbed in the Local Fund Audit Directorate per Notification dated 21.9.1995 with the approval of Competent Authority, therefore, his seniority is to be reckoned from the date of permanent absorption as per Rule 10 of the Sindh Civil Servants (Probation, Confirmation & Seniority) Rules, 1975. In this regard, the legal opinion from Law Department was solicited by the Finance Department which supported appellant's plea and that similar legal opinion was also solicited from the Regulation Wing, which too supported appellant's case as per legal opinion tendered by the Law Department and, as argued by learned counsel, the.
Department was under the legal obligation to assign seniority to the appellant from the date of absorption and not from the date of passing S.A.S. Examination. Further, it has been contended that passing or otherwise of the S.A.S. Examination has nothing to do with the seniority, as the seniority has to be assigned from the date of regular appointment and not from the date of passing the examination, In support of his contentions, he relied upon, (i) 1972 SCMR 127, (ii) 1973 PLC 42 (C.S.T),
(iii) 1974 PLC (C.S.T) Note 44 and (iv) 1997 SGMR 15.
6. In rebuttal, learned counsel for the private respondent argued that the very appointment of the appellant as Audit Officer in the Local Fund Audit Department was In violation of law, rules and judgments of the superior Courts. He contended that per Rule 5 of the West Pakistan Local Audit Department (Audit Officers) Recruitment Rules, 1962, the post of Audit Officer is a promotion post and shall be filled from amongst the Auditors of the Department and not otherwise and that since the appellant's appointment by way of transferor absorption was in violation of the Rules, the very/appointment was illegal and void. Besides, appointment by way of transfer of the appellant was made without the recommendation of the appropriate Departmental Promotion Committee, thus the same has no legal value as contemplated under Rule 7(2), Sindh Civil Servants (Appointment, Probation & Transfer) Rules, 1974. In the end, learned counsel submitted that in any case, the very appointment of the appellant was subject to passing of S.A.S. Examination, meaning thereby that until and unless the appellant had not passed the S.A.S. Examination, he could not be appointed by way of transfer or absorbed in any manner. The appellant has passed such examination in June, 2002, therefore, at the most his appointment is to be reckoned from that particular date and not before. He relied upon, (i) 1996 SCMR 1297; (ii) PLD 1997; SC 578; (iii) 2003 PLC (C.S) 520; and (iv) NLR 2003 Service 33.
7. Learned Asstt. A.G. While referring the written statements filed on behalf of the official respondents prayed for dismissal of the appeal. He also adopted the arguments, advanced by learned counsel for the private respondents.
8. We have carefully considered the above arguments,' perused the case papers and have minutely gone through the case-law referred to by the parties' counsel.
9. Appellant was initially inducted as Resident Audit Officer on deputation initially for 3 years which period was then extended for further two years. Prior to that appellant was appointed as Assistant Accounts Officer (B- 16) in Education Department on ad-hoc basis. While on deputation, he was cleared by Sindh Public Service Commission and per Notification dated 3.7.1994, his services as Assistant Accounts Officer (BS-16) in Education Department were regularized. While serving on deputation in the Finance Department, appellant moved an application for his merger/permanent absorption as Audit Officer (BS-16) in the Local Fund Audit Department. On said application, a summary for Chief Minister was prepared and floated tp through Chief Secretary as the Advisor to Chief Minister for Finance was away, It would be advantageous to reproduce the contents of summary, which reads as under:- " Apropos Chief Minister's Orders on the application Of Mr. Abdul Malik Shaikh, presently working as an Audit Officer (BS-16) in the Directorate of Local Fund Audit Department, regarding his permanent absorption in the said Department (Annexure-I).
(2) Mr. Abdul Malik Shaikh, Assistant Accounts Officer (BS-16) in the Education Department is working as Audit Officer (BS-16) in the Directorate Of Local Fund Audit on deputation basis since 1st January, 1992 (Annexure-II).
(3) Provision regulating appointment to the post of Audit Officer in Local Fund Audit Department or for deputation is as under:- METHOD OF RECRUITMENT Appointment to the post shall be made:-
(a) by selection on merit with particular reference to fitness for higher responsibilities from among Auditors of the Department in region where the vacancies occur who have passed the subordinate Appointment Service Examination of the Department and have put in at least three years' service as Auditor, and
(b) where suitable qualified Auditor is not clause
(a) the vacancy may be filled by transfer of suitable Auditor from the Audit Department of the Central Government who have passed the Subordinate Accounts- Service Commission of the Department provided that not more than twenty-five percent of the vacancies shall be filled under this clause.
(4) At the moment 13 posts of Audit Officers (BS- 16) are vacant in the Directorate of Local Fund Audit. Since qualified persons are not available, a proposal for amendment in the recruitment rules is under active consideration of the Finance Department, which will be finalized in consultation with the Sindh Public Service Commission in due course of time.
(5) However, keeping in view of qualification of Mr. Abdul Malik Shaikh, which is in consonance with the amendment proposed by this Department and experience he has gained-while posted as Audit Officer in the Directorate of Local Fund Audit on deputation since January, 1992, Mr. Shaikh, can be absorbed on Audit Officer (BS-16) in the Directorate of Local Fund provident he acquires qualification prescribed in the West Pakistan Local Fund Audit Department (Audit Officer) Rules, 1962 (Annexure- III).
(6) Submitted for orders on para 5 above.
Sd/ (NAZAR MOHAMMAD SHAIKH)
Secretary to Govt, of Sindh
(7) ADVISOR TO CHIEF MINISTER FOR FINANCE (away)
CHIEF MINISTER (8). (Through Chief Secretary) Keeping in view the dearth of the qualified persons for appointment against the 13 vacancies of Audit Officers, the proposed amendment in the existing method of recruitment in consultation with Sindh Public Service Commission, be finalized on priority basis, in the first instance.
Sd/- (SAIYED AHMAD SIDDIQI)
CHIEF SECRETARY CHIEF MINISTER Para-5 is approved.
Para-8 is also approved.
Sd/- CHIEF MINISTER From the plain reading of the contents of the summary and orders passed thereon, issuance of Notification of appellant's absorption as Audit Officer the Rules had to be amended and the absorption had to be made effective from the date of passing of S.A.S. Examination. However, neither the Rules were amended nor the appellant passed the requisite examination till June, 2002.
The method of recruitment of the post of Audit Officer per West Pakistan Local Audit Department (Audit Officer) Rules, 1962, provides as under:- "5. Method of recruitment - Appointments to the posts shall be made:-
(a) by selection on merit with particular reference to fitness for higher responsibilities from among Auditors of the Department in the region where the vacancies occur who have passed the Subordinate Accounts Service Examination of the Department and have put in at least three years' service as Auditors.
(b) where a suitable and qualified Auditor is not available for appointment under clause (a), the vacancy may be filled by transfer of a suitable Senior Auditor from the Audit Department of the Central Government who have passed the Subordinate Accounts Service Examination of the Department; provided that not more than twenty-five percent of the vacancies shall be filled under this clause."
Simple perusal of Rule 5 ibid, reveals that the post of Audit Officers are to be filled by promotion from the Auditors who have passed the SAS. Examination: of the department having at least 3 years' service. However, in case the qualified Auditor is not available for appointment as per clause
(a) the vacancy may be filled by transfer of a suitable Senior Auditor from the Audit Department of the Central Government who have passed the SAS. Examination of the department. In view of this mandatory Rule, the appellant's appointment as Resident Audit Officer by transfer from the Education Department was in violation of Rules as he was neither a senior Auditor of the Audit Department nor he had passed the requisite S.A.S. Examination. Apart from above, the appellant's appointment as Resident Audit Officer by transfer was also in violation of Rule 7(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which for the sake of convenience is reproduced hereunder:- "7. (2) Appointments by promotion or transfer to posts in Basic Scale 3 to Basic Scale 18 without special pay other than-the posts for which Provincial. Selection Board has been constituted under Rule 6-A shall be made on the recommendations of the appropriate Departmental Promotion Committee"
However, at no stage, the appellant's case was placed before the appropriate departmental promotion committee.
10. The Notification dated 21.9.1994 whereby the appellant was permanently absorbed with the approval of Competent Authority was subject to the condition that he acquires qualification prescribed in the West Pakistan Local Fund Audit Department (Audit Officer) Rules, 1962, meaning thereby that appellant's absorption would be made effective only when he acquires prescribed qualification viz. Passing of S.A.S. Examination. Since the appellant passed the requisite examination per Notification dated 20.6.2002 of Sindh Public Service Commission his absorption was to take place with effect from 20.6.2002. Perusal of the final seniority list as stood on 1.1.2003 is also crystal clear that the Auditors of the Local Fund Audit Department irrespective of their seniority position were promoted to the post of Resident Audit Officer only after passing S.A.S. Examination.
Therefore, at the most the appellant can get absorption another seniority from the date of passing S.A.S. Examination which he passed on 20.6.2002. He has thus rightly been placed at the bottom of the impugned seniority list. Although, appellant's very induction by way of absorption per Notification dated 21.9.1995 was in violation of Rule 5 of the West Pakistan Local Fund Department (Audit Officer) Rules, 1968, as well as under sub-rule (2) of Rule 7 of the Sindh Civil Servants ( Appointment, Promotion and Transfer) Rules, 1974, yet in view of the fact that none of the private respondents has ever challenged the Notification dated 21.9.1995 coupled with the fact that the Notification was issued almost over 13 years back, therefore, under the principles of locus Poenitentiae, we are restraining ourselves and are not inclined to set aside the same.
11. For the foregoing reasons, the appeal being devoid of merits, is hereby dismissed. There shall be no order as to costs.
12. Above appeal was dismissed on 12.11.2008 by short order and these are the reasons for the same.