' RAHMAT HUSSAIN JAFFERI, J.---This judgment shall dispose of the above titled two appeals, as they arise out of a common judgment.
2. The appellant, in the month of March, 1982 and respondent No,3 (hereinafter referred to as 'the respondent') in the month of July, 1983 were selected as Assistant Professors (BS-18), therefore, the appellant was senior to the respondent from initial appointment. In the year, 1987 the cases of both the officers were considered by Departmental Promotion Committee (DPC) for promotion in BS-19.
The appellant and the respondent did not possess the requisite length of service, therefore, they were promoted in BS-19'on acting charge basis. In the month of October, 1993 the services of the appellant and the respondent were regularized in BS-19, as they had completed their required length of service.
3. On 29-3-1994, the cases of the appellant and the respondent were again put up before the DPC for promotion from BS-19 to BS-20. The appellant had no requisite qualification, therefore, he was superseded, whereas the respondent though had requisite qualification, but did not possess the required length of service for promotion to BS-20 i.e, 12 years, was promoted on acting charge basis.
4. On 21-3-1995, a seniority list was issued in which the respondent was shown at Serial No,5 in the list of Professors in BS- 20, while the appellant was shown at Sr.No,1 in the list of Associate Professors in BS-19.
5. After completing the requisite qualification, the appellant moved the department for his promotion and by that time the respondent had also acquired the requisite length of service, therefore, they both were promoted to BS-20 on regular basis in single meeting of DPC, vide Notification dated 16-10-1996, wherein the appellant was shown senior to the respondent.
6. With above background, the respondent filed a departmental representation to the effect that he should be promoted after completing 12 years of service with effect from 29-3-1994, but it was dismissed by the Chief Minister, Sindh on 22-10-1996. Therefore, the respondent filed Appeal No,58 of 1997 before Sindh Service Tribunal, Karachi (hereinafter referred to as 'the. Tribunal') to challenge the said order.
7. After the promotion of the appellant and respondent in BS-20 on regular basis, on 13-2-1997, a tentative seniority list was issued in which the appellant was again shown senior to the respondent as his name was shown at Sr.No,2, whereas the respondent's name was mentioned at Sr.No,3.
Therefore, the respondent filed objections to the seniority list, but his objections were turned down.
Hence he filed Appeal No,8 of 1999 to challenge the said seniority list and for declaration that he might be declared senior to the appellant.
8. During the pendency of the above appeals, the respondent was declared senior to the appellant by Notification dated 23-9-1999 followed by seniority list issued on 16-3-2000, which gave cause to the appellant to file representation before the departmental authorities for cancellation of Notification dated 23-9-1999, but without any success, therefore, he filed Appeal No,35 of 2000 before the Tribunal to challenge the said notification and list. During the pendency of the appeal, the Government of Sindh withdrew notification dated 23-9-1999 and revised seniority list dated 16- 3-2000 was set aside by notification dated 31-7-2000. Consequently, the appellant was made senior to the respondent and his grievance was redressed, therefore, the appellant withdrew his Appeal No,35 of 2000. This gave cause to the respondent to file Appeal No,415 of 2000 challenging the notification dated 31-7-2000.
9. The appellant filed written statement in which he stated that he was senior to the respondent as Assistant Professor and Associate Professor, but admitted that when the respondent was cleared for promotion in BS-20 on acting charge basis he was passed over because he was awaiting the result of his MD examination and was thus not eligible for promotion. He also took the plea that the respondent cannot be held senior to him as promotion on acting charge basis did not confer any right of seniority.
10. The Tribunal heard all the three pending appeals viz. 58/97, 8/99 and 415/2000 together filed by the respondent and disposed of the same by a common order after hearing the parties in the following manner:- "(a) Appeal No,58/1997 lacks in merit and is dismissed. The appellant shall be treated as promoted to BS-20 on regular basis w.e.f, 16-10-1996. The period of his promotion on acting charge basis in BS-20 from 29-3-1994 to 15-10-1996 being adhoc shall not count toward seniority in BS-20.
(b) Appeal No, 8 of 1999 is allowed to the extent that respondent Dr. Syed Inkisar Ali carries the stigma of supersession and so shall rank junior to the appellant as Professor (BS-20).
(c) Appeal No,415 of 2000 is allowed and as a consequence, notification dated 31-7-2000 is rescinded and the one dated 23-9-1999 is revived."
The appellant was dissatisfied with the said order, therefore, he has filed the present appeals with leave of the Court.
11. We have heard Mr. Abrar Hassan, learned Advocate Supreme Court appearing for the appellant, Mr. Abdul Fateh Malik, learned Additional Advocate General, Sindh, Mr. Sohail H. K. Rana, learned Advocate Supreme Court, representing respondent No,3, and Mr. Mushtaq A. Memon, learned Senior Advocate Supreme Court and Mr. Khalid Javed Khan, learned Advocate Supreme Court, appearing for respondent No,4.
12. Having heard the learned counsel for the parties and perusing the record of this case, we find that the appellant was senior to the respondent upto their promotion in BS-19. The problem started when their cases were considered for promotion from BS-19 to 20. At that time, both the officers were not legally qualified to be appointed as Professors in BS-20 on regular basis. The appellant had no requisite qualification, whereas the respondent though had requisite qualification, but did not possess the requisite length of service, however Rule 8-A of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provided that latter officer could be promoted on acting charge basis without claiming seniority, whereas no such concession was provided to an officer, who was not possessing required qualification for promotion in BS-20. Invoking the above provision, the respondent was promoted in BS-20 on acting charge basis as a stopgap arrangement to fill a vacancy in the public interest. Keeping in view the said provision the Tribunal held that the respondent can not claim seniority over the appellant, therefore, dismissed the appeal No, 58 of 1997, which has attained finality as the respondent has not challenged the said finding of Tribunal by filing appeal before this Court. The Tribunal while allowing appeal No, 8 of 1999 held that the supersession of appellant carried stigma, therefore, the appellant should rank junior to the respondent and further observed in the judgment that the appellant did not challenge the seniority list issued in the year 1995, therefore, it became final.
13. It is pointed out that in the seniority list of 1995, the appellant was shown at Sr.No,1 in the list of officers of BS-19, whereas the respondent was shown at Sr.No,5 in the list of officers of BS-20.
Admittedly, the respondent had crossed the stage from BS-19 to BS-20, therefore, his name was shown in the seniority list of BS-20 and not of BS-19, as such, the said seniority list was not affecting the right of the appellant at that time for the simple reason of the provisions of Rule 8-A(6) of the ibid Rules. Nevertheless, when both the officers were promoted and regularized in BS-20 in the year 1996, the appellant was shown senior to the respondent by maintaining his original seniority and when his seniority was disturbed vide notification dated 23-9-1999 he immediately filed representation and then appeal No, 35 of 2000 before the Tribunal for redressing his grievance.
However as the department had redressed his grievance by issuing another notification dated 31- 7-2000 by withdrawing notification dated 23-9-1999 and showing him senior to the respondent, therefore, he withdrew the said appeal, which gave cause to the appellant to file Appeal No,415 of 2000. Therefore, on such ground the right of the appellant cannot be denied.
14. The main hurdle in the case of the appellant is the order of DPC of 1994, when he and the respondent were considered for promotion to BS-20. At that time they were not possessing requisite qualification and length of service. In that order the DPC used the word "superseded" for the appellant while promoting the respondent on acting charge basis. The Tribunal had relied upon the said order and formed the opinion that as the appellant was superseded, therefore, that was a stigma hence it had affected his right to seniority. It is important to note that an officer can be superseded in a promotion on regular basis on a valid and legal ground, if the officer is otherwise qualified to be appointed for such post. In the present case of promotion on acting charge basis, admittedly the appellant had no requisite qualification for promotion in BS-20 therefore, he was not qualified to be considered for promotion, as such his case was not required to have been placed before the DPC for consideration for the promotion in BS-20, because of Rule 8-A (1), which stipulates that only the case of officer who is otherwise eligible for promotion but does not possess the required length of service can be considered for such promotion. Had he been qualified for promotion in BS-20 and if on other valid ground he was found unfit to be promoted then of course that would have amounted to supersession and that too in a case of regular promotion otherwise even if his case was sent to the DPC, his case at the most could have been deferred till he had acquired the requisite qualification or in the meantime if any other junior officer of his batch mate was promoted on regular basis in BS-20 then he could not have claimed seniority over such officer.
But in the present case, no body was promoted in between the promotion of the respondent on regular basis but a promotion was made on acting charge basis as a stopgap arrangement to fill a vacancy for efficient working of the department in the public interest which also specifically provides that such promotion would not create any right of seniority to the said officer. Thus, in legal terms it cannot be said that' the appellant was superseded in such type of case otherwise than on regular promotion by mentioning wrong word by the DPC, therefore, it would not disentitle the appellant to claim his seniority when he was promoted along with the respondent on regular basis.
15. A distinction has to be made in between two cases of promotions one on regular basis and other on acting charge basis, which is a temporary/adhoc promotion to fill a vacancy as a stopgap arrangement in the public interest. The said distinction is available under Rule 8 which is for regular promotion under which the case of an officer can be considered on the condition that he possesses the required qualification and fulfills other conditions of said promotion. Whereas, under Rule 8-A which is for promotion under acting charge basis, in that promotion only the case of a most senior officer who is otherwise eligible for promotion but does not possess the specified length of service can be considered. IA The said Rules read as under:-- "(8) Persons as posses "such" qualifications and fulfill the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Provincial Selection Board, as the case may be.
[8-A(1) Where the appointing authority considers it to be in the public interest to fill a post reserved under the rules for departmental promotion and the most senior civil servant belonging to the cadre or service concerned who is otherwise eligible for promotion does not possess the specified length of service the authority may appoint him to that post on acting charge basis.
(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.
(3) In the case of a post in BS-17 and above, reserved under the rules to be filled by initial appointment, where the appointing authority is satisfied that no suitable officer of the grade in which the post exists is available in that category to fill the post and it is expedient to fill the post it may appoint to that post on acting charge basis the most senior officer otherwise eligible for promotion in the organization, cadre or service as the case may ' be, in excess of the promotion quota.
(4) Acting charge appointment shall be made against posts which are likely to fall vacant for a period of six months or more against vacancies occurring for less than six months, current charge appointment may be made according to the orders issued from time to time.
(5) Appointment on acting charge basis shall be made on the recommendation of the Departmental Promotion Committee or the Provincial Selection Board, I or II as the case may be.
(6) Acting charge appointment shall not amount to appointment by promotion on regular basis for any purpose including seniority (underlined to give emphasis).
(7) Acting charge appointment shall not confer any vested right for regular promotion to the post or grade held on acting charge basis.
(8) The civil servant appointed on acting charge basis shall assume full duties and responsibility of post.
(9) The civil servant appointed on acting charge basis shall be entitled to draw fixed pay equal to the minimum pay at which his pay would have been fixed had he been appointed to that post on regular basis.
Explanation: Service rendered on acting charge basis in the grade applicable to the post shall not count for purposes of drawl of increments in the grade held immediately before appointment on acting charge basis.]"
' In the light of above discussion and the Rules, the observation of the Tribunal in this respect is not proper and is set aside.
16. After examining the material available on record, we are of the considered view that the alleged supersession does not carry any stigma in respect of the appellant, hence Appeal No:8 of 1999 filed before the Tribunal is dismissed. We are also of the view that notification dated 31-7-2000 is proper and legal, which holds the field, therefore, the appellant is senior to the respondent. Consequently, Appeal No,415 of 2000 filed before the Tribunal is also dismissed.
17. In the light of what has been discussed above, both the titled appeals are allowed, with no order as to costs.