' SHAHID ANWAR BAJWA, J.--- Petitioners in C.P. No,D-809 of 2006 of were of at of the of relevant of time of working of as Executive Engineers (BS-18) in the office of Directorate of Engineering Education Works. On September 17, 2002 notification No, SORI(S&GAD)3-4/2002(P.I) was issued.
Through this notification Government of Sindh amended Sindh Government Rules of Business. For the purpose of present petition relevant amendment was that entry at Serial No, 12 under the heading "Education Department" was omitted and under the heading "Communication Department" at Serial No,6-A an entry was added. It was as under:--- "6-A Engineering Works pertaining to the Education Department relating to construction and maintenance of network of Education Centres including subsections like college education, technical education, physical education and miscellaneous education".
2. Thereafter Communication and Works Department was renamed as Works and Services Department. Constitution Petition No, 1983/2001 was filed by the employees of Directorate of Engineering Education Works and it was inter alia prayed that promotion to the post of Superintendent Engineers (BS-19) be not affected without first taking into consideration seniority of the Executive Engineers that came from Education Engineering Works Directorate and a Division Bench of this Court decided that matter by holding as under:--- "By the notification dated 17-9-2002 Engineering Works pertaining to Education Department by amendment in the Rules of Business was brought under the Communication Department thereafter by notification dated 1-11-2002 Administrative Departments were merged grouped and created. In this notification there was no mention of Communication and Works Department instead there is mention of Works and Services Department, The circular dated 17-12-2002 clarifies that Communication and Works Department has been redesignated/ renamed Works and Services Department. Therefore, in our view, the Works and Services Department came to be merged grouped or created on 1-11-2002 when the notification in this regard was issued which will also be the date of merger of cadres of all employees forming part of Works and Services Department. All measures that were taken prior notification dated 1-11-2002 were proposals suggestion or tentative in nature and had no binding effect and did not also merge the cadres of the petitioners and of the private respondents. As on 7-2-2002 Communication and Works Department existed and therefore there was no illegality in selection pf the private respondents for promotion to the posts of Chief Engineer (BPS-20) by the Provincial Selection Board No,1 in its meeting on 7-2-2002." (Emphasis supplied)
3. On 31-12-2003 provisional Seniority Lists were issued. There were two lists: one called list of District Officers Education Works and these were Executive Engineers who belong to former Directorate of Engineering Education Works and the other was of Executive Engineers of old Communication Department; they were also called Executive Engineers. This Constitution Petition has been filed to challenge the separate Seniority Lists and it is prayed as under:- "(a) That honourable Court would be pleased to direct the respondents to prepare and issue common seniority list of the petitioner Executive Engineers along with other Executive Engineers who have come from defunct communication and works department w.e.f, 1st November 2002 (the date of merger).
(b) In alternate to direct the respondents to dispose of the objection of the petitioners after hearing the petitioners by passing speaking order containing reasons for conclusion drawn by respondents.
(c) To restrain the respondents to make any promotion on the basis of two different seniority lists which are provisional in character till integrated final seniority lists is prepared in the cadre and grade of Executive Engineers in the Works and Services Department Government of Sindh."
4. Constitution Petition No,D-1765 of 2007 was filed by a similarly placed Executive Engineer of Ex- Directorate of Education Engineering Works. Constitution Petition No,D-1808 of 2009 was filed by an Executive Engineer from Communication and Works with the prayer that Works and Services Department may be directed to maintain separate seniority lists of the officers transferred from Directorate of Education Engineering Works and of those of officers of Ex-Communication and Works Department and in the alternate Education Engineering Works Directorate be transferred back to Education Department.
5. Mr. M.M. Aqil Awan, learned counsel for the petitioner in C.P. No,D-809 of 2006 made the following submissions:---
(i) Learned counsel referred to Section 8 of the Sindh Civil Servants Act, 1973 and Rule 9(1) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 and submitted that seniority list has to be prepared cadre wise and the two streams of Executive Engineers i.e, those coming from Directorate of Education Engineering Works and those coming from Communication and Works Department belong to the same cadre with the creation of Works and Services Department and therefore only one seniority list has to be prepared and preparation of two seniority lists is violation of mandate of the law.
(ii) Learned counsel submitted that cadre is defined in Fundamental Rule 9(4) and Rule 9(8) of the Sindh Civil Service Rules Manual, 1950 and it has to be one sanctioned as a separate unit.
(iii) Learned counsel submitted that under the rules Chief Minister is the competent authority whereas two separate seniority lists are being maintained under an order passed by the Chief Secretary. This the learned counsel submitted is without prejudice to the position that while ordering that two separate seniority lists be maintained judgment of this Court passed on 3-1-2004 in C.P.No,D-1983 of 2001 has been misconceived and misappreciated, if not altogether with mala fide intentions, distorted and disobeyed.
(iv) Learned counsel referred to the comments filed by the department and submitted that the department has falsely stated that there was not a merger and it was only a simple transfer of quantum of business from Education Department to Works and Services Department and Works & Services Department was a renamed department and not a new department created. Learned counsel referred to unreported judgment of this Court in Wali Muhammad Khan Warsi v.
Government of Sindh and others, Constitution Petition No,1077 of 1990 announced on 7-5-1995 and judgment dated 11-3-1997 passed by the honourable Supreme Court of Pakistan in Government of Sindh, through Secretary Education v. Wall Muhammad Khan Warsi and others, Civil Appeal No, 1085 of 1996. Lastly the learned counsel submitted that when the post is the same, qualification is the same, and nature of duty is the same cadre has to be the same and therefore there must be one seniority list.
6. Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioner in C.P. No, D-1765 of 2007 while adopting the arguments of Mr. M.M. Aqil Awan, referred to Saindad Solangi and another v. Nazeer Ahmed Shaikh and others Civil Appeal No, 736/2003 decided by the honourable Supreme Court on 3-2-2003. Learned counsel pointed out that the main question was framed by the Supreme Court in the following words:--- "7. Main question, on which the decision of the real question/ controversy revolves, is whether the two cadres had been merged and if so from which date? This question has not been decided by any of the authorities i.e, either by the departmental authorities or by the High Court. In our view, proper order in this appeal should be that order dated 27-11-2001 passed in the Constitution petition be set aside along with order dated 9-4-2002 based on the said order and the case remanded to Sindh High Court, for decision of the writ petition itself on merits, after impleadment of the present appellants as respondents and any other person who is likely to be affected may, on his application, also be impleaded as party and thereafter the same be decided on merits with the observation that selections already made shall be subject to (sic) (Emphasis added). ' and matter was remanded by the Supreme Court to this Court and it was in consequence of remand that judgment dated 3-4-2004 earlier referred to was passed by this Court. Learned counsel referred to Establishment Manual printed in 1964 and Para 14 thereof wherein it is stated as under:--- "14. For the purpose of integration, the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise, to the grade as defined in paragraph 16 below. In case two officers are bracketed together, owing to their appointments taking effect from the same date, the older officer will be given seniority over the other. The orders in this paragraph are subject to the proviso that the inter se seniority of officers belonging to the same integrating unit will not be altered. Thus if in the former Punjab an officer was placed above another officer with longer continuous officiation in the grade, the former will be placed first on the integrated list with reference to the date of his continuous officiation. The latter officer will be placed immediately below him. The same rule will apply if the former officer had been placed in the Punjab above more than one officer with longer continuous officiation. In that case those officers would go immediately below him in the integrated list as a group and in the same order.
15. The seniority lists for the Group sub-cadres will also be prepared as indicated in paragraph 14 above.
16. For the purpose of the two preceding paragraphs, "GRADE" may be defined, broadly, as consisting of a number of posts of the same category in the same class of service, carrying the same duties and responsibilities and in a common scale of pay or in case of officers belonging to different integrating units, in comparable scales of pay."
7. Learned counsel further submitted that if two separate seniority lists are maintained then there must be separate and determined quota for promotion to BS-19 as well as other grades and rules must have been framed in this regard and no such exercise has been done.
8. Mr. Moula Bux Khoso, learned counsel for the petitioner in C.P.No,D-1808 of 2009 submitted that the matter pertains to seniority and therefore Constitution petition is not maintainable. He relied upon Jamal Khan Jafar and another v. Rahim Shah and 3 others, 1994 SCM R 759. Learned counsel also referred to an order passed on CMAs Nos.3778 and 3779 of 2006 in Writ Petition No,1983 of 2001 on 5-10-2006 and a judgment of the Sindh Service Tribunal in Ahsanullah Memon v. Governmental Sindh and others, Appeal No, 77 of 2006 decided on 13-8-2009.
9. Mr. Jamil Ahmed Rajpar, counsel for respondent No,10 in C.P. No,D-808 of 2006 adopted arguments of Mr. Moula Bux Khoso and submitted that seniority lists were issued on 13-2-2004 and it is available on record that objections to seniority lists were filed on 13-3-2004 but the objections have not yet been decided. He submitted that he has no objection if directions are given to the departmental authorities to decide the objections.
10. Mr. Adnan Karim, learned Additional Prosecutor General, extensively read from the comments filed by the official department and submitted that there has not been any merger. Learned A.A.-G.
Submitted that he will support the comments filed by the department and will not like to comment upon the judgment of this Court in C .P. No . D-1983 of 2001.
11. Before we take up other contentions of the learned counsel it would be appropriate to clear two cobwebs. First is whether there was a merger or not. The Supreme Court of Pakistan in Saindad Solangi's case (supra) remanded the matter to this Court by stating that core and crux question and in essence the controversy was whether the two cadres had been merged and if so, from which date. After remand by the Supreme Court this Court in Nazeer Ahmed Shaikh and others v.
Government of Sindh and others C.P. No,1983 of 2001 on 3-1-2004 decided the controversy.
Operative part of that judgment has been quoted in Para-2 above. The Division Bench of this Court clearly held that by notification dated 17-9-2002 Engineering Works pertaining to Education Department, by amendment in the Rules of Business, were brought under the Communication Department and thereafter vide notification dated 1-11-2002 the two departments were merged together and Works & Services Department came into existence. Thus, the position now is beyond any shadow of doubt that there was merger between the Directorate of Education Engineering Works and Communication and Works Department and as a consequence of this merger a department by the name of Works and Services Department was created. Such creation took place on 1-11-2002. The Division Bench has also held that 1-11-2002 would be the date for merger of cadres of all employees forming part of Works and Services Department. One stream of employees came from Directorate of Education Engineering Works and other stream of employees came from Communication and Works Department. The two streams merged into Works and Services Department. It is like the proverbial merging of two rivers ({{URDU TEXT}}
12. The second is, were two separate cadres created? CMA No,3778/2006 was filed in Nazeer Ahmed Shaikh's case and it was decided on 5-10-2006. Incidentally C.M.A. Was heard on 21-12-2005 The grievance of the applicant was that in violation of judgment dated 6-1-2004 official respondents issued notification whereby they promoted employees from defunct Communication and Works Department. It was contended by the government that there was no direction in order dated 6-1- 2004 and therefore there could not be any question of any violation. The CMA was dismissed by the bench holding that different cadres have not been prohibited by law. Operative part of the judgment is as under:- "After hearing the arguments of the learned counsel for the parties, it seems that the promotion of respondents Nos.4 and 5, which has been agitated in this application was already on record before this Court when it passed judgment dated 6-1-2004 and that promotion has not been termed as illegal. It is also an issue, which has rightly been answered by Mr. Muhammad Sarwar Khan, learned Additional Advocate-General and Mr. Manzoor Ali Khan, learned counsel for the petitioner that in terms of section 8(1) of SCS Act 1973 and Rule 9(1) of Civil Servant (Probation, Confirmation and Seniority) Rules 1975, a separate list of different cadres had not been prohibited and that nothing specific has been pointed out by the learned counsel for the applicant to seek indulgence of this Court for contempt action against the respondent. In the circumstances both these CMAs have no force."
13. In Ahsanullah Memon v. Governmental Sindh and others, Appeal No, 77 of 2006 decided by the Sindh Service Tribunal vide order dated 13-8-2009, the order passed in the CMA (quoted above) has been followed with the observation that there is no bar on the part of the Government to create separate cadres. In both these orders the question whether separate cadres were ever created or not has not been dealt with: neither raised, nor answered. Answer to this question lies in the summary submitted to the Chief Secretary. That summary is available at page 49 of C.P.No,D- 809 of 2006. Secretary of the Works and Services Department put up the summary and his recommendations were contained in Para-3 thereof and background was narrated in Para 2 thereof and they were in the following words:- "2. The SGA&CD's notification dated 17-9-2002 has added "Rule 6-A" in Rules of Business wherein the functions of the Directorate of Education are already spelled out, limiting it only to the works falling within the domain of the erstwhile Education Works. It nowhere allows them to undertake functions/jobs that lie within domain of regular functions of W&SD (i.e, Roads, Bridges and Buildings). It is thus emphasized that W&SD has acted in accordance with the rules relating to service matters as envisaged in Sindh Civil Servant's Act, 1973 and the rules made thereunder.
3. Accordingly maintenance of separate seniority list in respect of employees of. Former C&W Department now W&S. Department and the employees of defunct Education Works Directorate in each cadre and discipline within the spirit of the judgment of 6-1-2004 is the proper and appropriate action and, apparently, no contempt of the said judgment seems to have been, inadvertently or otherwise, committed."
14. Para-3 was endorsed by the hierarchy and the Chief Secretary wrote 'Agreed'. Looking at Para-3, it states that the spirit of the judgment of 6-1-2004 is not violated if two separate cadres are maintained. There is no mention whatsoever and reference whatsoever to the observation of this Court in the judgment specifically where it was held that "Administrative Departments were merged" and it would also be "merger of cadres of all employees".
15. Learned A.A.-G. Contended that he would support comments of the department where it is stated that there was no merger and would not comment upon the judgment of this Court.
However, as far as, this Court is concerned and as far as, Government of Sindh is concerned both are bound by the judgment of this Court and this Court has clearly held that the departments were merged and merger also involved merger of cadres of all employees. Word 'Cadre' is defined in Rule 9(8) of Sindh Civil Service Rules Manual, 1950 in the following words:- "Cadre means the strength of a service or a part of a service sanctioned as separate unit."
Concise Oxford Dictionary 11th Edition defines Cadre in the following words:---
(1) A small group of people trained for particular purpose or profession.
(2) A group of activists in a communist or other revolutionary organization.
' In Judicial Dictionary, by K.J. AIYAR 13th Edition, the following is stated about the Cadre:--- "Cadre. Permanent establishment of regiment forming nucleus for expansion at need.
'Cadre' in Fundamental R.9(4) means the strength of a service or part of a service sanctioned as a separate unit. In R.6(4) of the Delhi Higher Judicial Service Rules 1970, the word 'cadre' includes both permanent and temporary posts. [G R Luthra v Lt Governor (1975) 3 SCC 258 at 262-263].
' The word does not mean post but strength of establishment. [DG of Health Services v. Bikash Chatterjee 73 CWN 249, AIR 1969 Cal 525].
'Cadre' cannot be construed to mean a post unit and unless the strength of an establishment of service sanctioned as a separate unit prescribing a separate scale of pay is demonstrated. Getting some allowance for extra-supervisory work does not amount to fall in definition of 'cadre, nor can such post having special allowance be claimed as cadre post. [MP Shikshak Songh v State of MP 1987 Jab LJ 121 (MP)] ' In R.2(b) of the Delhi Higher Judicial Service Rules 1970, all posts in the service, whether permanent or temporary, are generally regarded as cadre posts [OP Sindh v. Union of India (1984) 4 SCC 450 at 463]."
16. In Wali Muhammad, Khan Warsi v. Government of Sindh and others, Constitution Petition No, 1077 of 1990 decided by this Court on 7-5-1995, facts were that the petitioners were serving as Headmasters in various private schools prior to their nationalization in 1972. Under MLR 118 all schools were nationalized and the petitioners were consequently inducted in government service ind became civil servants. They were confirmed as Headmasters on 1-10-1972 and placed in Grade 17 and private respondents were Headmasters of the government school. Constitution Petition was filed with inter alia the following prayer:--- "A direction to the respondent No, l to prepare seniority list of all the officers, in Grade 17 of School Administration including the petitioners in terms of section 8 of the Sindh Civil Servants Act, 1975."
17. The Provincial Government had prepared two separate seniority listt. Regarding maintainability of the petition it was observed by the Bench as under:--- "We do not agree with the contentions of Mr. Manzoor Ali Khan learned Advocate for the private respondents that the jurisdiction of this Court is barred under Article 212 of the Constitution. The case-law referred by him is distinguishable on 'facts. The question before us is whether.An integrated seniority list of the teachers/Head Masters of the Government-run schools and that of the nationalized schools is to be prepared or separate seniority lists are to be prepared. The simple answer to this question in our view, is that once the privately owned institutions were nationalized under MLR 118, the teachers working in such institutions stood at par with their counter-parts in the Government-run institutions. It would be only after the names of the petitioners or similar others are included in a consolidated list that they can approach the Service Tribunal in case they feel aggrieved by their position reflected in the seniority list; otherwise than that the petitioners would have no remedy before the Service Tribunal."
18. Division Bench allowed the constitution petition and directed government to prepare one single seniority list of all Headmasters whether they came through nationalization or through government ' schools. The matter was taken up by the Sindh Government to the Supreme Court in Civil. Appeal No, 1085 of 96, Government Of Sindh v. Wali Muhammad Khan Warsi and others. It was decided by the Supreme Court vide judgment dated 11-3-1997. The Supreme Court first noted the moot point in the following, words:=-- "The respondents' case is that the provisions of Section 8 of the Act ordain the competent authority to prepare seniority list of the incumbents of a particular cadre/service with particular reference to subsection (1) of section 8 of the Sindh Civil Servants Act, 1973. Government of Sindh prepared a list of Garde-17 officers but the respondents were not included in it without assigning any reason.
According to section 8, only one seniority list of members of such Government service has to be prepared. It does not make any distinction between one group or batch of civil servants on any consideration."
' The Supreme Court referred to the following observations in its earlier judgment (which judgment was not on the question of seniority but on the question of counting previous service):--- "It is to be noticed that the respondents possessed the same academic qualification as were prescribed for the teachers of the General Cadre and the duties which they performed before nationalization were precisely of the same nature and responsibility as were of those who belonged to the General Cadre. There is therefore, no reason why their services prior to 1-7-1975 be ignored when, computing their lengths of service with the teachers of the General Cadre for the purpose of granting them benefits received, by the latter." ' and thereafter maintained the order of the High Court. On the question of jurisdiction Supreme Court observed that since the High Court had done substantial justice it would not like to interfere with judgment of the High Court.
19. In Naimat Ullah Butt and others v. Government of Punjab, through the Secretary Education, Lahore, 1988 SCM R 1453 facts were that the appellants were appointed as Lecturers in 1964 in a college run by Municipal Committee. The college was taken over by the Provincial Government in 1972. All the colleges run by the Municipal Committees were transferred to the government in 1973.
Such notification of transfer also stated that the employees of the colleges will be treated as government servants. Case of the appellants was that on the basis of notification they had become full-fledged government servants. Three separate cadres were maintained namely Government Colleges (general cadres) Nationalized Colleges (closed cadre) and Provincialised Colleges (closed cadre). For creation of vacancies ratio of 1:6:17 (one Professor: 6 Assistant Professors: 17 Lecturers) was prescribed and notified. Service Tribunal held that there was no merger of services and therefore no objection could be taken to these separate cadres. The matter was taken to the Supreme Court. The Supreme Court observed that there did not appear to be any legal limitation on the power of the Government to constitute separate cadres for various categories of its officers inducted into any of their departments. In this regard the Supreme Court referred to section 7(3) of the Civil Servants Act. Said section 7(3) is in the following words: "7(3). For proper administration of a service, cadre or grade, the appointing authority shall from time to time cause a seniority list of the members of such service, cadre or grade to be prepared."
20. In Manzoor Ali Chaudhry, Chief Engineer, Highway (South Zone), Punjab, 2-Lake Road, Lahore v.
Government of Punjab, through Secretary, Communication and Works. Department, Lahore and .10 others, 2000. SCMR 689 the petitioner was appointed as Temporary Assistant Engineer in Electrical and Mechanical Engineer cadre on 31-10-1963 and respondent No,3 was appointed in Civil Engineering cadre on 31-11-1963. Subsequently two cadres were merged. It was held that for the purposes of integration, the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise, in that grade.
21. Arguments of Mr. Moula Bux Khoso and learned A.A.-G. That these petitions are not maintainable because the question involved is of seniority and seniority is one of the terms and conditions of service, therefore, jurisdiction is barred by Article 212 of the Constitution. Mr. Moula Bux Khoso relied upon Jamal Khan Jafar and another v. Rahim Shah and 3 others, 1994 SCM R 759. Facts of the case were that Jamal Khan Jaffar,' appellant joined employment in 1962 as Naib-Tehsildar and the respondents joined. Naib-Tehsildar in 1967. One Muhammad Ramzan was first promoted in 1971 and was again promoted in 1973 but after Jamal Khan Jaffar who was also promoted in 1973 while two other persons were directly appointed as Tehsildars. However their service was terminated. It was a question of inter se seniority of two employees. In the present case what is challenged is not the question whether 'A' is senior or 'B' is senior. The question that is challenged is whether one seniority list should be maintained and there can be two seniority lists. Moreover, there does not appear to be any specific order passed in respect of terms and conditions of employment of the petitioner. The objection is therefore overruled.
22. Above discussion indicates the position to be as under:-
(1) The law has conferred a discretion on the government "for F proper administration" of dividing the employees into various services, cadres and grades.
(2) There is no legal bar on the authority of the government to keep the employees in separate cadres. This Provincial Government can even do so when the employees on the face of it have same or similar qualification and even where they have the same or similar nature of duties as 'has been held by the Supreme Court in the case Government, Provincialised and Nationalized colleges in Naimat Ullah Butt's case (supra).
(3) However if Naimat Ullah Butt's case (supra) and Wali Muhammad Khan Warsi's case (Supra) are read together it appears that in Naimat Ullah Butt's case one of the factors for upholding of treating lecturers from different streams in separate cadre appears to be decision of government where it fixed the uniform criteria of 1:6:17 for promotion and moreover cadres of provincialised and nationalized lecturers were made closed cadres. Therefore if employees doing similar jobs in the same department possessing the same prescribed qualification are placed in two different cadres because of various streams they have come through it would be essential to prescribe a uniform and equitable promotion prospects, vacancies and criteria.
23. In the present case a Division Bench of this Court in Nazeer Ahmed Shaikh's case has already held that the two departments have been merged and there was a merger of employees also.
Such judgment was not challenged by the Government of Sindh or anyone else. Though it is available to the departmental authority to pass a conscious decision and create two separate cadres but such a separate creation must be after giving total and due effect to the judgment of this Court in Nazeer Ahmed Shaikh's case. This has not been done so far:
24. As far as question that since objections to two seniority lists have been invited is concerned, in our opinion question involved in this case is not of inter se seniority. Had the question been so, it would have belonged to the domain of the relevant Service Tribunal. Question is whether one or two seniority lists could be maintained in view of merger as has been held by this Court in Nazeer Ahmed Shaikh's case.
25. Consequently it is held that there was merger of cadres with effect from 1-11-2002. Therefore preparation of two separate seniority lists is without lawful authority and of no legal effect. It goes without saying that the Government has power to create separate cadres but there must be good and reasonable reasons for creation of two separate cadres and if two separate cadres are created it would be essential for the departmental authorities to prescribe some proportionate formula and mechanism for creation of promotion prospects so that no one is blocked in his career tracks.
' These Constitution Petitions are disposed of in the above terms.