' NISAR MUHAMMAD SHAIKH, J.--- Through this representation/appeal dated 14-2-2012, the appellant has impugned the order dated 16-1-2012 passed by learned District and Sessions Judge, Hyderabad whereby the objections filed by appellant on the provisional seniority list dated 19-9- 2011, were overruled and such list was declared final.
2.. Brief facts of the case are that the appellant was appointed as Junior Clerk in BPS-5 by learned District and Sessions Judge, Hyderabad in the year, 1973 and then he passed his departmental examination in 1975, while the respondents Nos.1 to 9 were subsequently appointed as Junior Clerks in 1974, 1975, 1976 and 1979 respectively and thus, they were juniors to the appellant. In 2009, when the appellant was Nazir/C.O.O. in BPS-10, another junior to him namely Muhammad Ismail Memon (who is now retired) was promoted from Grade-10 to 11, against which the appellant made representation dated 16-2-2009 and reminder dated 14-9-2011, but learned District and Sessions Judge, Hyderabad, instead of passing the order on it, issued provisional seniority list dated 19-9- 2011 placing the name of the appellant below the names of respondents Nos.1 to 9. He therefore, filed his objections but the same were rejected vide impugned order dated 16-1-2012, whereby the provisional seniority list was treated as final. The appellant has, therefore, ,prayed that the impugned final seniority list may be set aside with direction for preparation of a fresh list, placing his name above the name of respondent No,1 in whose favour, the recommendations made for his promotion to the post of Office Superintendent, may be suspended and the appellant may be promoted to such post on the basis of Seniority cum-fitness.
3. I have heard the appellant and respondent No,1 in person and representative of District Court, Hyderabad and also perused the relevant record. None attended for respondents Nos.2 to 9.
4. The appellant contended that by virtue of his appointment in 1973 and on his success in departmental examination in 1975, his name was raised at the top in original seniority list prepared vide order dated 112 dated 24-12-1975 whereby his name was placed above the name of Muhammad Ismail Memon (since retired) while the respondents Nos.1 to 9 who were subsequently appointed were most juniors to him but learned District and Sessions Judge did not assign any reason while placing the name of the appellant below the names of all these juniors to him and failed to appreciate that under the relevant law the seniority was to be reckoned from the date of appointment and not from the date 01 promotion.
5. On the other hand, the respondent No,1. contended that though he was appointed as Junior Clerk in the year, 1974 but he was promoted from Grade-7 to 8 in 1993 and from Grade- 8 to 10 in 1998 while the appellant who was promoted from Grade-5 to 7 on his turn, was dropped since 1992 to 2000 on account of his patchy service record and adverse A.C.Rs which were never expunged and subsequently he was promoted from Grade-7 to 8 in 2001 and from Grade-8 to 9 in 2002 and thus the appellant was rightly and legally superseded by all the respondents Nos.1 to 9 on seniority- cum-fitness basis and now, by concealing all such material facts, he cannot get his seniority anti- dated for promotion purpose after expiry of more than 2 decades.
6. I have considered the submissions of the contesting parties. It would be advantageous to reproduce the relevant part of the impugned order dated 16-1-2012 which is given below:--- " .... No doubt by virtue of the initial appointment, Mr. Chang is the oldest retrained official of this department as he was appointed on 2nd July, 1973. But unfortunately he could not be promoted till late 2002. The very criteria for promotion is seniority cum-fitness and he was considered so many times after his appointment by duly constituted DPCs and not found fit for promotion. After his appointment, he was firstly considered for promotion in the year, 1992 but DPC could not find him fit for promotion Similarly, in the years, 1993, 1994, 1995, 1996, 1997, 1998, 1999,2000 and 2001 he was dropped by DPC and those who were junior to him were promoted and appointed in the higher grade on regular basis. Record shows that against all those promotion, no representation was preferred nor the same, was challenged before the higher forum. Thus, those promotions have attained finality. After such a long time, objection filed Mr. Chang is after though and cannot be entertained ..."
' The above observations/findings of learned District and Sessions Judge, are not denied or questioned by the appellant in the present representation/appeal and on the contrary, he seems to have been concealing such material facts. The available record, of course, reveals that for many years the appellant though repeatedly considered for his promotion, was not found fit for promotion on account of his questionable record, with the result , he was being dropped and superseded by his juniors one by one and thus, all respondents were ranked senior to the appellant in seniority list in question.
8. Both the parties have referred the Rule 11(1) of the Sindh Judicial Staff Services Rules,1992 which 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 selected 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 or 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 .dame, the older officer, if not junior to the younger officers 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 a 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."
9. From a bare reading of the above, the Explanation-II of sub-rule (1) of Rule 11, seems to be fully attracted to the present case as the appellant was superseded twice by his juniors/respondents Nos.1 to 9 when they were promoted, firstly from Grade-7 to 8 and then from Grade-8 to 10 and thereafter, the appellant was given promotion from Grade-7 to 8 and subsequently from Grade-8 to 10. Both the parties have also referred clause (iv) of Rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. Such Rule 13 is also reproduced below:--- "13. A civil servant, who is not promoted on his turn on the ground that: ---
(i) his seniority is under dispute or is not determined; or
(ii) he is on deputation, training or leave; or
(iii) disciplinary proceedings are pending against him; or
(iv) he is not considered for promotion for any reason other than his unfitness for promotions; shall on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter-se-seniority in the higher post be deemed to have been promoted in the same batch as his juniors."
10. It is evident from the above that the relevant clause (iv) of Rule 13 is relating to the Civil Servant who is not considered for C promotion, while the appellant was repeatedly considered for promotion, hence this rule is not of any help to his case.
11. %Thus, the learned District and Sessions Judge while reproducing the relevant section 8 of the Sindh Civil Servants Act, 1973, relating to the seniority, rightly observed in the impugned order that:- -- Subsection (4) and the proviso of section 8 are important. If both are conjointly read, it gives us a clear picture that after promotion in a post, seniority in that post shall take effect from the date of regular appointment to that post, and in such a situation the inter se seniority of the persons promoted in one batch shall remain intact. The term 'regular appointment' does not mean initial appointment but it means appointment in the post in which the person is promoted...... "
12. Apart from the above, in the case of Nazir Ahmed v. Government of Sindh, through Chief Secretary Sindh, Karachi and 2 others (2001 SCM R 352), it was held that:--- It is also to be noted that section 8 of the Sindh Civil Servants Act, 1973 makes the position abundantly clear in which it has been provided that the civil servants who are selected for promotion to a higher grade in one batch shall on their promotion to higher grade retain their inter se seniority as in lower grade. The above-quoted principle has also been incorporated in the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, and the question of any deviation does not arise. It is well entrenched legal position that "Seniority in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade Civil Servants who are selected for promotion to a higher grade in one batch on their promotion of the higher grade are to retain their inter se seniority as in the lower grade..............................................................
13. Accordingly, the appellant, who was not promoted to the higher grade in one batch together with respondents, could not retain inter se seniority as in the lower grade. Similarly, in the D case of Director-General Intelligence Bureau Islamabad and others v.. Ameer Mujahid Khan and others (2011 SCM R 389), it was also held as under:--- "It is also settled principle of law that "seniority" in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade. It is also settled principle of law qua the question of conferring seniority with retrospective effect is concerned that cannot be done unless such right was established. There are several pronouncements of this court that regularization of seniority from the retrospective date is not permitted and is beyond the power of Government. See Wajahat Hussain's case (PLD 1991 SC 82), Sh. Anwar Hussain's case (1985 SCMR 1201), Muhammad Yousuf's case (1996 SCMR 1297) and Nazeer Ahmed's case (2001 SCMR 352- 2001 PLC (C. S.) 394). It is also settled principle of law that civil servants who were senior in lower grade would retain inter se seniority in higher grade in case they were promoted in a batch."
14. Following the above principles of law, the appellant who was twice superseded by all the nine respondents respectively and was not promoted in a batch along with these respondents though considered for the same, has no case for anti-dated seniority or the seniority with retrospective effect, hence 'the impugned order being proper and legal, calls for no interference and therefore, this representation/appeal is hereby dismissed.