' JUSTICE NISAR MUHAMMAD SHAIKH (MEMBER).--- Appellant Gul Hassan has impugned the judgment dated 16-1-2003 passed by learned Single Judge in a Departmental Appeal, whereby he set aside the orders dated 14-5-1999 and 13-7-1999 of the Selection Committee of Judicial District Tharparkar at Mithi, which approved the promotion of appellant from the post of Reader BPS-6 to Nazir BPS-8 holding him senior to Suresh Kumar, respondent No,3 herein, on the ground that he (Gul Hassan) had joined his service/duty in lower grade earlier to Suresh Kumar.
2. Relevant facts of the case are that the appellant Gul Hassan was initially appointed as junior clerk in BPS-5 on 1-5-1994 in Solicitor's Department, Government of Sindh, and thereafter, through proper channel and with no objection of such department, he was appointed as junior clerk in Judicial Department. It appears that Gul Hassan and Suresh Kumar both were appointed as junior clerks in BPS-5 on the same day i,e, 24-11-1994 in Judicial District Tharparkar. Suresh Kumar joined his duty on 28-11-1994 while Gul Hassan on 1-12-1994. Subsequently, on the basis of an advertisement for the recruitment on newly created posts of Readers in BPS-6, they both applied and were also selected for the same. Appointment orders for such posts were issued to them on 21-5-1996. Thereafter, by a common office order dated 29-5-1996, the postings of total six newly appointed Readers BPS-6, including these two, were made by District and Sessions Judge (Respondent No,2 herein) in various Courts of the District. Gul Hassan joined his duty on the same day i,e, 29-5-1996 while Suresh Kumar joined on 9-6-1996. Thereafter, on account of the vacancy of a post of Nazir in BPS-8, the impugned promotion of Gul Hassan from the post of Reader BPS-6 to Nazir BPS-8, was approved by the Selection Committee headed by District and Sessions Judge.
Relevant part of the minutes of such meeting held on 14-5-1999, reads as under:--- ' "So far the cases of Mr. Suresh Kumar and Mr. Gul Hassan is concerned. The date of appointment of both the clerks is same. Mr. Gul Hassan Clerk, who was already in service in the Solicitor Department, has produced no objection certificate from the Solicitor Department and joined his duty in BPS-5 on 1-12-1994, while Mr. Suresh Kumar joined his duty on 28-11-1994 in PBS-5 as Clerk and thereafter both the clerks Mr. Gul Hassan and Mr. Suresh Kumar were appointed in BPS-6 on the same date i,e, on 21-5-1996. Mr. Gul Hassan joined his duty on 29-5-1996 as Reader while Mr. Suresh joined his duty in BPS-6, on 9-6-1996, as such, Mr. Gul Hassan ranks senior from Mr. Suresh.
The date of passing of departmental examination of both the Clerks is same. The ACRs of both the Clerks are generally good. The Committee approves promotion of Mr. Gul Hassan Memon from BPS-6 to BPS-8 being senior from Mr. Suresh."
3. The representation made by Suresh Kumar against the above promotion on the basis of seniority in question, was turned down by District Selection Committee vide its order dated 13-7-1999 therefore, he filed Departmental Appeal, which was however allowed vide impugned judgment dated 16-1-2003.
4. We have heard the learned counsel for the parties as well as learned A.A.-G. and also perused the relevant record. Admittedly, the terms and conditions of service of the parties are governed by the Sindh Judicial Staff Service Rules, 1992 framed in pursuance of section 26 of Sindh Civil Servants Act, 1973. The relevant Rule 11, for determination of seniority inter se, as prescribed in the said Rules of 1992, reads as under:---
11. Seniority.---(1) The seniority inter se of the members of the service in the various grades thereof shall be determined:---
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the District Judge or Judge Small Causes Court, as the case may be, provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection;
(b) in the case of members appointed by promotion, with reference to the dates of their continuous appointment therein; provided that if the date of continuous appointment in the case of two or more members of the service is the same, the older officer, if not junior to the younger officer or officers in the next below grade, shall rank senior to the younger officer or officers.
' Explanation-I: If a junior officer in a lower grade is promoted to priority in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his senior officer in the fixation of his seniority in the higher grade.
' Explanation-II: If a junior officer in a lower grade is promoted to higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.
(2) Registers shall be kept by every District Judge of all Clerks in the District Court. Similar Register shall be kept by the Judge, Small Causes Court.
' The entries shall be made in the order of seniority and shall show the date of entry into service and date of promotion, age, caste, relationship to other officers, native place, landed property, quantication, including date of passing the departmental examination, commendations, reprimands, punishments and any other matters likely to prove useful at the time of making transfers or promotions. The Registers shall be checked from time to time by reference to the Registers of landed property, Office order books and individual service book kept in the several Courts.
(3) Similar Registers shall be kept by every District Judge and the Judge Small Causes of the Bailiffs of his District Court.
5. It is an admitted position that no seniority inter se of the Readers in BPS-6 was determined with the order of merit, which was never assigned to the parties on their selection for new appointment to such posts. Thus, Rule 11(1)(a)(ibid) is not attracted while, there is no relevancy of Rule 11(1)(b) as it was not a case of appointment by promotion with reference to the dates of earlier or continuous appointment. Even otherwise, the parties have not claimed their seniority, to be reckoned, on the basis of their. original appointment as junior clerk in BPS-5, nor the same was determined. The appellant Gul Hassan has claimed his seniority with effect from 29-5-1996 on the basis of earlier joining of his duty on his appointment as Reader BPS-6, while the respondent No,3 Suresh Kumar has explained in this regard that he was not relieved by District and Sessions Judge owing to some office exigencies and as soon as he was relieved on 9-6-1996, he joined his duty as Reader BPS-6 on the same day. This factual position is however, supported by the material on record including such relieving order/letter dated 9-6-1996 issued by the office of District and Sessions Judge. But, here the question is relating to the legal aspect of the earlier or late joining the service/duty and its effect on the seniority inter se of the two employees of the same batch.
6. Admittedly, both the appellant and respondent No,3 were appointed as Readers BPS-6 on the same day i,e, 21-5-1996 and they were also given the posting order on one day i,e, 29-5-1996.
Appellant joined his duty on the same day i,e, 29-5-1996 but the respondent No,3 could not. He joined late on 9-6-1996 for the compelling reason as mentioned above and thus, he was not at fault in doing so. In support of his contention that the appellant was rightly promoted when he was found senior on the basis of his having joined the service/duty earlier than the respondent No,3, learned Counsel relied upon the case of Abdullah Khan v. Director, Labour Welfare, N.-W.F.P., Peshawar and 2 others (1989 SCM R 1193). In such case, the claim of petitioner therein was that though he and respondent No,3 therein were appointed on the same day, he was placed senior by appointing authority on account of higher merit. But, the Federal Service Tribunal dismissed such service appeal of petitioner holding that in reality no merits were determined by assigning marks to the candidates and that the respondent was rightly treated as senior on the grounds of senior in age, in addition to his having joined service two days earlier than the petitioner. Against such order, the petitioner . sought leave to appeal, which was refused by honourable Supreme Court holding that:--- ' ....The reliance by the Tribunal on the rule of seniority by age, if the date of appointment is taken to be the same also, is not shown to be prohibited by any law. On the other hand if the date of joining service is to be taken into consideration as determining factor which has additionally been relied upon by the Tribunal, the same is also not prohibited by law. If the Tribunal has passed an order which is in no way illegal nor has it been shown to be improper, the petitioner would obviously lose.
That being so, this petition has no force and leave to appeal, accordingly, is refused."
7. It appears from above authority that the ground of earlier joining the service was in addition to the rule of seniority by age, and this rule on the contrary, favours the case of respondent Suresh Kumar, whose date of birth is 28-12-1971, while the appellant Gul Hassan's date of birth is 23-5-1975.
Learned Counsel for the appellant also placed his reliance on another case of Dr. Hafiz Ahmed Khan and 4 others v. Secretary Establishment Division and others PLJ 1997 Tr.C. (Services) 568. But in such case, the appellants therein were selected vide recommendations of Federal Public Service Commission dated 3-10-1995 and consequently, they were appointed on 29-1-1996. The main contention of appellants was that they were selected in 1995 therefore, they should be deemed to have been appointed with effect from the date of recommendations of Federal Public Service Commission and not from the date of the Notification of their appointment or the actual date of assumption of the charge. In this regard, the Federal Service Tribunal observed: ' "The appellants joined in January, 1996 and they want to persuade us that they should be deemed to have joined in October, 1995, which is not only unprecedented in any law or rules but even there was not a single precedent in their favour that a person may be allowed to consider himself appointed prior to the date of actual appointment. It was repeatedly held that regular appointment is to be treated from the date the appointees take over the assignment and not from any date prior thereto."
8. Above reported case is quite distinguishable to the case in hand and does not support the claim of appellant of his seniority as against the respondent on the basis of his having joined the duty and taking over the charge earlier than the respondent. It appears that in these circumstances, it was held in this regard in the impugned judgment dated 16-1-2003 that late joining the service by appellant (Sureh Kumar) in lower grade does not destroy his right to seniority inter se and that the reasons assigned by District Selection Committee for holding respondent (Gul Hassan) as senior to Suresh Kumar, are without any legal force.
9. However, the learned Counsel for respondent Suresh Kumar has also referred to the following case-law in support of his contentions on the above point raised by other side as well as on his plea that he is senior than Gul Hassan being older in age and so also that his name in serial wise list of appointees of the same date was placed over and above the name of Gul Hassan:---
(1) Muhammad Sadiq Khan v. Azad Government of State of Jammu and 6 Kashmir and another 1987 PLC (C.S.) 302 (Service Tribunal AJ&K). Relevant part of which, from page-304,is reproduced below:--- " We think that the office of the Commissioner entered the date of joining of the officer as date of appointment, which is incorrect and we have held so, in another case viz. Muhammad Ashraf. Kiani v. Azad Jammu and Kashmir Government 1996 PLC (C.S.) 525. We are also supported in our view, by 1984 PLC 440, wherein it has been held at page No,441, as under:--- "5. It is an admitted position that respondent No,2 (Abdul Ghani Qamar) had been relieved of his previous appointment vide Government High School, Makhdoomali, Multan letter No,39/M.A., dated 5th April, 1978. He reached Islamabad late on 6th April, 1978, and 7th April, being a Friday, he joined his new appointment on 8th April, 1978. We are, therefore, satisfied that it was beyond his control to join at Islamabad on 5th April, 1978 and as such the earliest he could join was on 8th April, 1978 which he did. Such being the circumstances, we reject appellant's claim of seniority over respondent No,2.
' The same view has been expressed in 1972 PLC 93. The claim of the appellant, for seniority, on the basis of date of joining, is, therefore, not tenable."
(2) M. Tahir Rasheed and 2 others v. Secretary Establishment Division, Islamabad and others 1993 PLC (C.S.) 116 (Federal Service Tribunal). The relevant part of which is at page-122, as under:--- ' In the instant cases, the tussle over seniority is amongst the candidates selected at one selection and they were assigned their merit position and their letters of appointment were issued on one and the same date and the merit position of the appellants was not at the top and yet they were placed in the seniority list on the basis of the dates of their joining duty. It has been held by this Tribunal in more than one cases, referred to above, that the date of joining duty is not the criterion for determination of seniority in the cases where the candidates have been selected in one batch and assigned merit by the selecting body and that decision was approved by the Supreme Court in the aforesaid case of Ziaul Hag and others v. Secretary, Ministry of Education (1991 SCM R 1632)."
(3) Fazal Muhammad v. Government of N.-W.F.P. and others (2009 SCM R 82). Its relevant Para-3 says:-- ' "We have heard the learned counsel at length and have also perused the available record. We find that the petitioner as well as the respondent No,3 were selected and appointed in the same batch. Admittedly, the respondent No,3 is older in age than the petitioner. The mere fact that the petitioner assumed the duties earlier would not adversely affect the seniority position of the respondent No13. In our view, the impugned judgment of the Tribunal is plainly correct to which no exception can be taken."
10. Apart from above, learned counsel for respondent No,3 also referred to Rule-13 of the Sindh Judicial Staff Service Rules 1992, which reads as under:--- "13. General Rules.--- In all matters not expressly provided for in these rules, members of the service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them."
' Referring the above, he placed reliance in Clause (d) of Rule 11 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, framed for regulating the seniority etc. of the Civil Servants.
The Rule 11 provides:--- "11. Inter-se-seniority of civil servants appointed in a batch or on the same date shall be determined,---
(a) in the case of persons appointed by initial recruitment, in the order of merit assigned by the selection authority, and if such authority is either not competent to assign such order of merit or has omitted to do so and is unable to overcome the omission for reasons beyond its control, the seniority shall be determined by the appointing authority: Provided further that a person selected in earlier selection shall rank senior to a person selected in a later selection;
(b) in the case of persons appointed by promotion on the basis of their inter se-seniority in the lower post;
(c) in the .case of persons appointed by initial recruiting vis-a-vis persons appointed by promotion, on the basis that .the persons appointed by promotion shall rank senior to the persons appointed by initial recruitment;
(d) in the case of persons not covered by clauses (a) to (c) on the basis that persons older in age shall rank senior to persons younger in age."
11. It appears from a perusal of the above case-law that the contentions of respondent No,3 relating to his late joining the service/duty and his seniority in age, get support at least from the case of Fazal Muhammad (supra). In addition to it, learned counsel also refers to the observations/findings recorded in the impugned judgment in respect of placement of the name of respondent No,3 over and above the name of appellant in the serial wise list prepared on their selection and appointment as Reader BPS-6. In this connection, it would be convenient to reproduce the relevant paragraphs appearing at Pages-6 and 7 of the impugned judgment, which are as under:-- ' "Now coming to the focal point as to which of two incumbents be considered for promotion from grade BPS-6 to BPS-8 i,e, from the post of Reader to Nazir, it will be pertinent to state that relevant record available before me reveals that both appellant and respondent while in service as junior clerks on the ministerial strength of District Court, Tharparkar at Mithi along with other candidates, were selected to the posts of Readers (BPS-6) in an exercise carried in the meeting of Selection Committee headed by learned District and Sessions Judge, Tharparkar held on 20th and 21st May, 1996. Minutes of said meeting reflects the following list of the incumbents appointed to the various posts of Readers (PBS-6): 1.Mr. Mewa Ram 2.Mr. Suresh Kumar28-12-1971 3.Mr. Gul Hassan 23-5-1975 4.Mr. Dhani Bux 8-1-1970 5.Mr. Alam Khan 14-3-1973 6.Mr. Chandio 25-2-1971 7.Mr. Sharif 14-6-1974 ' NOTE: Dates of birth mentioned against each incumbent are shown on basis of other available record.
' Above-mentioned minutes of meeting reveal that there is no mention therein that incumbents named above were selected in order of merit. Neither it appears that the above list was prepared age-wise which fact is also established from the dates of birth shown against each incumbent. Be that as it may, in such state where the will of selectors to assign merit to selectees is not expressly manifested in writing: according a distinctive place to every incumbent in the list in above order speaks volumes about the intention of selectors. Admittedly appellant ranks senior to respondent in the above list."
12. In view of above, the impugned judgment does not appear to be illegal, improper or incorrect.
However, learned Counsel for appellant also raised an additional ground that since the appellant was promoted from BPS-6 to BPS-8 long ago in the year 1999 and since such order of Competent Authority has taken its legal effect and appellant has been performing his duties satisfactorily and also receiving such salaries in BPS-8, therefore, such order of his promotion cannot be withdrawn or rescinded when the same has already created certain rights in favour of appellant. In this regard, he also cited the cases reported as (1) Pakistan through Secretary, Ministry of Finance v.
Muhammad Himayatullah Farrukki PLD 1969 SC 407, (2) Muhammad Nawaz v. Federation of Pakistan and 61 others, 1992 SCM R 1420, and (3) Chairman, Minimum Wage Board Peshawar and another v. Fayyaz Khan Khattak, 1999 SCM R 1004.
13. Perusal of these cases shows that the orders of the competent authorities concerned, relating to remuneration/ regularization/ confirmation of the service, had since taken legal effect and in pursuance thereof, certain valuable rights were created in favour of civil servants therefore, it was held that under the rule of locus poenitentiae, such orders could not be withdrawn, rescinded, cancelled or reversed to the detriment of those rights. But, here in the instant case, the order of the authority allowing the impugned promotion on the basis of seniority in question, was never withdrawn or rescinded by such authority nor it intended to do so and, on the contrary, it turned down the representation of respondent No,3. However, such order allegedly affected the legal right of respondent No,3 and therefore, he challenged it before the competent Court/Tribunal under due process of law, hence the said principle of locus poenitentiae is not attracted in the process of legal battle going on between the two parties. Moreover, in the case of the Engineer-in-Chief Branch v. Jalaluddin (PLD 1992 SC 207) it was held that the locus poenitentiae is the power of receding till a decisive step is taken, but it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction and that if the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. Thus, the cases as relied upon by learned Counsel for appellant, are of no help to him being distinguishable to this case.
14. Consequent to the above, there appears no valid ground to justify interference in the impugned judgment and therefore, this Service Appeal is hereby dismissed.
' I agree with the conclusion.