' ANWAR ZAHEER JAMALI, J.---Petitioner Amanullah Shah, an employee in BPS-11 with the Agriculture Engineering Wing of Agriculture Department Government of Sindh, has preferred this civil petition for leave to appeal to seek leave of the Court to agitate his grievance against the judgment dated 27-2-2009 in service Appeal No, 14 of 2008, passed by Sindh Service Tribunal at Karachi (hereinafter referred to as the Tribunal), whereby the seniority claim of the petitioner against respondents Nos.4 to 13 (hereinafter referred to as Private Respondents) has been turned down.
2. In a nutshell, case of the petitioner is that he being a diploma-holder in Associate Engineering, was appointed on ad hoc basis in BPS-11 as Supervisor on 7-2-1988. Such appointment of the petitioner was regularized vide order dated, 26-11-1989. Subsequent to it, the private respondents in this petition, who held Bachelor Degree in Engineering, were also appointed in the same capacity and pay scale since September, 1993 onwards.
3. For the purpose of maintaining seniority of all the employees in BPS-11 in the department, including Diploma-holders and Graduate Engineers a combined seniority list was being prepared on yearly basis, to which none of the parties to this petition has any grievance. Such list was lastly prepared on 1-1-2000, wherein name of the petitioner, private respondents and other employees in the same grade/pay scale were properly mentioned according to their respective seniority and none has any grievance. After a gap of over five years, during which, in the year 2004, the petitioner had also obtained Bachelors Degree in Agriculture Engineering on 1-1-2006, a segregated seniority list of Graduate Supervisor in BPS-11, wording in the Agriculture Engineering Wing Department, was issued, wherein the name of the petitioner was rightly placed at Serial No,3. This list was not called into question by any of the person named in the said seniority list, including all the private respondents. However, subsequent to it, for no reason. On 1-5-2006, another list of Graduate Supervisor (BPS-11) was issued, wherein the name of the present petitioner was found missing. In this regard, the petitioner moved an application to the concerned department, upon which, vide letter dated, 21-12-2006, the department was informed that the petitioner and Mr. Shahabuddin Abro, whose case was similar to the case of the petitioner, being Graduate Unit Supervisors of Agriculture Engineering Wing may be assigned seniority from the date of their regular appointment instead of date of the acquiring the degree of Bachelor of Engineering Based on such direction, on 1-1-2007, another seniority list of Graduate Supervisor, (BPS-11), working in Agriculture Engineering Wing was issued, wherein the name of the petitioner was again placed at Serial No,3. However, after some time, on the move of some of the private respondents, on the basis of letter dated, 17-7- 2007, again a revised seniority list was issued on 17-9-2007, placing the name of the petitioner at Serial No,13, instead of Serial No,3, as mentioned in seniority list dated, 1-1-2007.
4. The petitioner, being aggrieved by such illegal action of the departmental authorities, challenged the same before the Sindh Service Tribunal, Karachi, vide Appeal No,14 of 2008, which was to his dismay, dismissed by the Tribunal vide its judgment dated, 27-2-2009, with the observation that in the seniority of Graduate Unit Supervisors, the petitioner was entitled to seniority from the date of his obtaining Bachelor Degree in Engineering and not from the date of his original appointment on regular. i,e, 26-11-1989.
5. Mr. Ansari Abdul Lateef, learned counsel for the petitioner, after brief narration of relevant facts, as noted above, has contended that section 8(4) of Sindh Civil Servants Act, 1973 (hereinafter referred to as the Act 1973) and rule 10(1) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rule, 1975 (hereinafter referred to as the Rules 1975, clearly lay down that the seniority of Government Servants in any particular grade is to be reckoned from the date of this regular appointment. Further submission of Mr. Ansari is that the preparation of segregated seniority list, in the Agriculture Engineering Department. Government of Sindh which exercise was undertaken for the first time in the year 2006, has nothing to do with the notification dated, 11-8-2000, which relates to the fixation of quota of fresh appointments and promotions amongst the employees in BPS-11, holding Degree in Civil/Mechanical or Agricultural Engineering and, those holding diploma of Associate Engineering/B. Tech Engineering.
6. Advocate-General Sindh supporting the impugned judgment of the Tribunal contended that filing of appeal by the petitioner before the Tribunal was premature and the appeal was not maintainable for the reason that seniority list in question was only provisional against which remedy available to the petitioner was before the departmental authority. His next submission is that the Tribunal has rightly held in its judgments that in the category of Graduate Engineers, the petitioner will be entitled to have his seniority on the basis of the date of passing of his graduate degree i,e, the year 2004 and not from the date of his original regular appointment in BPS-11.
7.
The respondent No,6, who has appeared in person has made submission on behalf of the private respondents and contended that the basis for preparation of segregated seniority list is the notification dated 11-8-2000, which provides for separate quota of thirty per cent for promotion to the post of Assistant Agriculture Engineer and other equivalent posts (BPS-17) from those Unit Supervisors/Training Instructors/Assistant Foremen/Foremen and Training Supervisors who have the degree in civil/mechanical/agricultural engineering with five years service as such, and twenty per cent for those Unit Supervisors/ Training Instructors/Assistant Foremen/Foremen and Training Supervisors, who have diploma of Associate Engineering/B.Tech (Hons.) with five years service as such. His further submission is that due to non-preparation of seniority list in year 2001 till 2005., the petitioner is trying to take undue advantage as in case of preparation of regular seniority list of the two segregated categories earlier to .The year 2004, the petitioner would have been only entitled to retain his original seniority in the category of diploma-holders and in case after becoming graduate engineer, his name was to be placed in the other seniority list of graduate engineers than his name would have been placed in the same place as shown in the last seniority list dated, 17-9- 2007.
8. In reply to the argument advanced on behalf of the respondents, Mr. Ansari Abdul Latif .Submitted that though yet no promotions have been made from amongst the Unit Supervisors (BPS-11) working in the agriculture engineering department, Government of Sindh, it was for the first time in the year 2006, that segregated seniority list was prepared by the department, wherein name of the petitioner was rightly placed at serial No,-3 on the basis of his Bachelor Degree in Engineering, obtained in the year 2004. As this final seniority list was not challenged by any of the private respondents, therefore, issuance of another seniority list of graduate supervisors on 1-5- 2006, not containing the name of the petitioner, was managed and mala fide. However, upon the complaint of the petitioner, this mistake was rectified in terms of the letter dated, 24-12-2006, issued by Section Officer, Agriculture Department, Government of Sindh, which was also not challenged before any forum. He reiterated his submission that in the given facts and circumstances of the case, the notification dated, 11-8-2000, for the purpose of preparation of segregated seniority list will have no overriding effect on the statutory provisions of section 8(4) of the Act; 1973, which clearly stipulate that seniority in a post, service or a 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. In the same context, he also made reference to rule 10(1) of the Rules, 1975 which reads as under:-- "10(1) Subject to the provision of Rule-41, the seniority-of a civil servant shall be reckoned from the date of his regular appointment".
9. After careful examination of the - respective submission of the parties' counsel and perusal of the material placed on record, we have seen that to the post of Unit Supervisor (BPS-11), the appointment of the petitioner was regularized on 26-11-1989, while the appointments of private respondents against the same post were made in the year 1993 onwards and for this purpose upto the year 2000, combined seniority list was prepared without discrimination of the requisite qualification. From the year 2001 to 2005, admittedly, no seniority list was prepared either combined or segregated showing the inter se seniority of the petitioner and private respondents.
On 1-1-2006; when segregated seniority list of Graduate Supervisor (BPS-11) working in Agriculture Engineering Wing was prepared, for the first time, the petitioner having been graduated in Agriculture Engineering in the year- 2004, was placed at serial No, 3 of the said seniority list.
However, his seniority was dislodged by a subsequent seniority list dated, 1-5-2006, wherein his name was found missing from the said list.
10. It seems that in this background of the matter, on the representation of the petitioner, letter dated 21-12-2006 was issued by Section Officer, Agriculture Department, Government of Sindh communicating the decision of the competent authority for computing the seniority of the petitioner in the list of Graduate Supervisor (BPS-11) from the date of his regular appointment i,e, 26-11-1989, instead of-date of acquiring Bachelor of Engineering Degree in the year 2004. It ha's not been disputed by respondent No,6 Mr. Faiz Muhammad Rind and the Advocate-General Sindh that first seniority list of Graduate Supervisors dated, 1-1-2006 containing the -name of the petitioner at serial No,3 was not challenged by any of the private respondents who might be the effectee in the matter nor the subsequent letter dated 21-12-2006 in favour of the petitioner. In such circumstances when the other seniority list of Graduate Supervisors, (BPS-11) was issued on 1-1- 2007, the name of the petitioner was once against placed at serial No,3' of the list. There is no denial of the fact that in the original combined seniority list containing names of the diploma- holders as well as graduate engineers, working in the capacity of the Unit Supervisor (BPS-11), the petitioner according to his date of regular appointment viz 26-11-1989 was much senior to the private respondents. After the notification dated, 17-8-2000, when for the first time, segregated seniority list v. As prepared, again the name of the petitioner was placed at serial No,3 of the seniority list of Graduate Supervisors, but authenticity of this seniority list was not challenged by any of the respondent. Even in the seniority list of Graduate Supervisor for the year 2007, the name of the petitioner was again placed at serial No,3 of the list, keeping in view the date of his regular appointment as Unit Supervisor (BPS-11). However, ignoring the statutory provisions of the Act 1973 and the Rules 1975, as referred to above, in the revised seniority list dated, 17-9-2007, the name of petitioner was shown below the names of private respondents. There is no dispute to the position that notification dated 11-8-2000 issued by the Agriculture Livestock and Fisheries Department, Government of Sindh, in terms of sub-rule (2) of rule 3 of the Sindh Civil Servants (Appointment Promotion and Transfer) Rule, 1974 was meant only for determining the quota for appointment as Assistant Agriculture Engineer and other equivalent post in BPS-17 and in this context for the purpose of promotion of Unit Supervisors earlier combined list was bifurcated into two categories i,e, list of Graduate Engineers and Diploma-holders. This notification was in no way meant to determine or to affect the inter se seniority of Unit Supervisors, which was to be computed from the date of their appointments as envisaged under section 8(4) ibid. This position further finds support from Rule 10(1) of the Rules 1975, as reproduces above.
11. In case interpretation of notification dated, .11-8-2000, advanced by respondent No,5, is accepted then claim of seniority of the petitioner will be seriously prejudiced, as on the one hand, after obtaining the Bachelor Agriculture Engineering Degree in the year, 2004, his name cannot be retained in the list of diploma-holders and, on the other hand, after the date of obtaining Bachelor Degree, he will lose his seniority and entitlement for promotion to higher post from the date of his regular appointment viz. 26-11-1989. Obviously, such interpretation of notification dated 8-11-200, effecting the inter se seniority of the petitioner and private respondents, for no fault on his part, rather penalizing him for his further academic qualification is misleading misconceived and devoid of merits, Moreso as it is violative of the statutory provision, which, in view of its clear language, entitles the petitioner for promotion to a higher post from the date of his regular appointment.
12. In the above circumstances, the notification dated, 11-8-2000 cannot be used as tool in favour of the private respondents to disturb and dislodge the seniority of the petitioner in the category of Graduate Supervisors, as admittedly he has passed his Bachelor of Agriculture Engineering Examination in the year 2004 i,e, much before the preparation of segregated seniority list of Graduate Supervisors and Diploma-holder Supervisors. In our opinion, the notification referred to above cannot be given overriding effect to the statutory provisions of law, which clearly mandate that seniority to 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. There is no other factual or legal controversy involved in this matter, except the one discussed above and in this regard, we are of the clear view that statutory provision regarding seniority will have overriding effect on the notification dated, 11-8.-2000 to protect the seniority of the petitioner.
13. As a result of above discussion, this civil petition for leave to appeal is converted into appeal and allowed. Impugned judgment dated 27-2-2009 passed by the Tribunal is set aside and further relief of seniority is granted to the petitioner in terms of the prayer made by him in appeal before the Tribunal. #EndJudgment