MRS. AKHTAR A. CHAUDHRY (MEMBER).--- By this single judgment we propose to decide the above titled four appeals which involve common questions of facts and law and were heard together. In Appeals Nos.223 and 225 of 2007, the order dated 29-6-2005 has been challenged whereby private respondent No,3 (Ghulamullah Jarwar) was assigned seniority in Supervisory Group of Agriculture Officer (BS-17) whereas in Appeals Nos.224 and 226 of 2007, the order dated 4-10-2006 has been challenged whereby the private respondent No,3 was promoted to BS-18 on acting charge basis.
2. Briefly stated the facts of Appeals Nos.223 and 225 of 2007 are that both the appellants are serving as Agriculture Officers (BS-17) in "Non-Supervisory Group" in the Agriculture Department.
There are two groups of Agriculture Officers i.e, "Non-Supervisory Group" and "Supervisory Group" and for each group separate seniority lists are being maintained and that the posts of "Supervisory Group" are promotion posts from "Non-Supervisory Group". It is the case of appellants that private respondent No,3 who was Water Management Officer in Agriculture Engineering of Farm Water Management Wing was transferred and adjusted in Agriculture Extension Wing as Agriculture Officer of "Non-Supervisory Group" per order dated 13-3-2002 and by another dated 11-5-2005 private respondent No,3 was permanently absorbed as Agriculture Officer "Non-Sul rvisory Group".
Private respondent No,3 then directly submitted application to official respondent No,2 for inclusion of his name in the seniority list of "Supervisor Group", which application per order dated 29-6-2005 was allowed and his name was included in the seniority list of "Supervisory Group" at Serial No,18 of seniority list dated 20-3-2006 in violation of Rules, whereby the private respondent No,3 who ought to have been junior to appellants in "Non-Supervisory Group" was given seniority over and above them in "Supervisory Group". After availing departmental remedy, the present appellants had earlier filed service Appeals Nos.55 and 56 of 2007 before this Tribunal.
3. In Appeals Nos.224 and 226 of 2007, the case of the appellant is that by another order dated 4- 10-2006, the private respondent No,3 was further promoted to BS-18 on acting charge basis.
Against that order also, both the appellants filed departmental appeals and on getting no response, they had earlier filed Appeals Nos.60 and 61 of 2007 before this Tribunal. All the four appeals viz. 55,56,60 and 61 of 2007 along with some other, by order dated 7-8-2007 were disposed of and the matters were remanded to the appellate authority with a direction to decide departmental appeals of the aggrieved civil servants by passing some speaking order with cogent reasons according to law, within a period of 90 days and in case the same are not decided within such stipulated period, the appellants were given liberty to file fresh appeals within next 30 days thereof, before this Tribunal. Since said departmental appeals were not decided within given time, appellants have filed these appeals.
4. In rebuttal, respondents Nos.2 and 3 filed their separate written statements and controverted the claim of appellants. Respondent No,1 adopted the written statement filed by respondent No,2.
5. In support of appeals, learned counsel for the appellants argued the matter at length. He submitted that legally and lawfully to very induction of appellant from Water Management Wing to the Agriculture Extension Wing is illegal and in violation of Rule 7(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, as his appointment by transfer was made without his clearance by the departmental Promotion Committee. Besides, respondent No,3 per Notification dated 13-3-2002 was transferred and adjusted against the post of Agriculture Officer BS-17 in Non-Supervisory Group and his subsequent permanent absorption per Notification dated 11-5-2005 was also in the said group, but suddenly the respondent No,2 by order dated 29-6-2005 allowed seniority to respondent No,3 in a "Supervisory Group" in utter violation of the rules. He added that post of "Supervisory Group" under the Recruitment rules is a promotion post, therefore, allowing seniority to the respondent No,3 in that group is not only a violation of recruitment rules but also amounts to snatching the valuable rights of the appellants who despite putting long service remained in the "Non-Supervisory Group" whereas the new entrant has been allowed seniority in "Supervisory Group" over and above them. Learned counsel further stated that since order allowing respondent No,3 the seniority in "Supervisory Group" is illegal, as such, his promotion to BS-18 per order dated 4-10-2006 is also illegal, therefore, both the orders may be set aside.
6. In rebuttal, learned counsel for respondent No,3 has argued that on winding up of the Water Management Project the respondent No,3 was brought on the strength of Agriculture Extension Wing and posted as Agriculture Officer in "Non-Supervisory Group", which appointment was simply a transfer. Learned counsel submitted that immediately after absorption, the respondent No,3 was posted a Deputy District Officer, Headquarter, Mirpurkhas, which is post of supervisory cadre but appellant never objected to such appointment/posting. He added that private respondent No,3 was placed at the bottom of seniority list of "Supervisory Group" whereas name of appellants are in the "Non-Supervisory Group", therefore, they cannot compete with the seniority of respondent No,3 being of a separate group and thus these appellants are not aggrieved persons within the meaning of section 4 of Sindh Service Tribunal Act, 1973. Besides, as argued by learned counsel, these appeals are not maintainable as earlier their appeals were disposed of by passing speaking order on the departmental appeals by appellate authority, but without waiting for the outcome of said departmental appeals appellants have filed the instant appeals just to blackmail the respondent No,3 who has already been promoted to BS-18 on regular basis per order dated 11-12-2007.
7. Learned Assistant Advocate-General while referring the written statement filed on behalf of respondent No,2 argued that absorption of respondent No,3 and subsequent assigning seniority in Supervisory group was legal and proper and awarded by the competent authority, which orders have been acted upon and thus cannot be recalled. He also adopted the arguments advanced on behalf of private respondent No .3 .
8. We have considered the above submissions and perused the case papers. The legal objection that these appeals in the absence of appellate order are not maintainable has no force. The earlier appeals of the appellant were disposed of and remanded with direction to appellate authority to decide the departmental appeals within 90 days and in case no order is passed the appellants would be at liberty to file fresh appeals within next 30 days thereof. Admittedly, the departmental appeals of the appellants despite definite directions were not decided within stipulated period; therefore, the appellants within next 30 days filed these appeals, which are legal, proper and maintainable.
9. On merits, it is an admitted fact that there are two groups of Agriculture Officers i.e, "Non- Supervisory" and "Supervisory". However, the posts of both the groups are in BS-17. According to official and private respondents some of the posts of Supervisory Group, as per Recruitment Rules, are to be filled 50% by promotion from amongst the Agriculture Officers, whereas according to appellants, the posts of Agriculture Officers of Supervisory Group are to be filled 100% by promotion.
The recruitment Rules notified on 21-3-1993 reveals that posts at Serial Nos.14 to 25 are posts of Supervisory Group whereas posts at Serial Nos.26 to 36 are posts of non-supervisory group. The post of Assistant Plant Protection Officers and Senior Instructors (Serial Nos.17 and 20) are to be filled 50% by initial recruitment and 50% by promotion from the officers of Extension Wing of BPS-17 non-supervisory group, whereas the post of Assistant Horticulture Officer (Serial No,21) are to be filled 100% by initial recruitment. Rest of the posts of supervisory group is to be filled 100% by promotion. It appears that transfer/adjustment of private respondent No,3 was against the post of Supervisory Group which are to be filled 100% by promotion. Contention of learned counsel for private respondent No,3 that on winding up of the Water Management Project, the respondent No,3 was brought on the strength of Agriculture Extension Wing is not borne out from the record. Had it been so, the private respondent No,3 could have been declared surplus and been absorbed under Rule-9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. As it appears, the appointment of respondent No,3 from Water Management Wing to the Agriculture Extension Wing was made by transfer. However, as provided by Rule 7(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, it should have been made on the recommendation of the appropriate Departmental Promotion Committee, but no such exercise was admittedly undertaken.
10. In para.4 of the written statement it has been contended by the respondent No,3 that he was absorbed against the post of supervisory cadre, and soon after his absorption, he was posted against the post of Deputy District Officer, Headquarters Mirpurkhas, which is a post of supervisory cadre, where he continuously discharged his duties till his promotion to BS-18 on regular basis and if appellant could show from the summary moved for the purpose of his absorption or from the notification/order that such absorption was against the non-supervisory cadre, the appeal of the appellant may be allowed. In this context we have perused the Notification dated 13-3-2002, whereby private respondent No,3 the Water Management Officer (BS-17) of Agriculture Engineering Wing was transferred and adjusted against the post of Agriculture Officer (BS-17) (N.S.) in Agriculture Extension Wing. This Notification clearly reveals the respondent No,3 was transferred and adjusted against the post of Agriculture Officer of "Non-Supervisory. Group". He worked in that capacity till his permanent absorption per Notification dated 11-5-2005. In the later Notification, although it is not mentioned as to in which of the two groups, respondent No,3 was permanently absorbed, yet respondent No,3 himself submitted an application to respondent No,2 for inclusion of his name in the seniority list of Supervisory Group. Had the appellant been permanently absorbed in Supervisory Group, he could not have moved such application. Even otherwise respondent No,3 initial absorption was in non-supervisory group, therefore his permanent absorption also could have been in the same group. Mere fact that respondent No,3 was posted as Deputy District Officer, Headquarters Mirpurkhas, which is a post of supervisory cadre, does not ipso facto create right in favour of respondent No,3 to claim seniority in the supervisory group. Perusal of the record further reveals that appellant Abdul Hayee Khoso was appointed as Agriculture Officer BS-17 on 12-2-1973 and appellant Abdul Qadir Mahar on 17-3-1994, whereas respondent No,3 was appointed as Water Management Officer on 28-7-1994, meaning thereby that respondent No,3 was much junior to these appellants in BS-17 then how the former can be absorbed in supervisory group over and above the present appellants. It appears that allowing seniority to respondent No,3 in a supervisory group was an act of acute favoritism which caused undue loss of seniority and promotion to the appellants.
11. From the above resume, we are of the considered opinion that although appointment by transfer of respondent No,3 from Water Management Project to the Agriculture Extension Wing was in violation of Rule 7(2) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and thus illegal so also subsequent inclusion of his name in the seniority list of Supervisory Group and promotion to BS-18, yet in view of the fact that appellants have not challenged the appointment of respondent No,3 by way of transfer, therefore, the order dated 11-5-2005 shall remain intact. However, the order dated 29-5-2005 allowing respondent No,3 seniority in the supervisory group is liable to be set aside so also all the other orders/Notifications based upon the same being illegal are also liable to be set-aside.
12. Accordingly, these appeals are allowed, the impugned order dated 29-5-2005 so also the impugned order dated 4-10-2006 to the extent of granting promotion to the respondent No,3 to BS- 18 on acting charge basis are set-aside. There shall be no order as to costs.