' MUHAMMAD IBRAHIM SUMALANI (MEMBER-I)--- Being aggrieved by the impugned orders dated 27- 11-2013 and 11-11-2013, issued by the respondent No,4 (Additional Chief Secretary) P&D Department, and respondent No,1 (Deputy Secretary (Services-II S&GAD), the above named appellant has filed the instant appeal with the prayer to set aside the said impugned orders and the promotion of appellant be restored and declared as Transport Supervisor (BS-11) Planning and Development Department.
2. The brief history of the case is that both the appellant and the respondent No,2 were appointed as Drivers BPS-04 in P&D department vide order No,P&D.SOA 1(5)/92.4018 dated 1-12-1992 and No,E&A.SOA.1(5)185/129 dated 8-4-1990 by the respondent No,4. Subsequently the services of both the incumbents i,e, appellant and respondent No,2 were transferred to S&GAD from Planning and Development Department. However, on the request of the appellant he was re-transferred to P&D Department while the respondent No,2 remained in S&GAD. On availability of a post of Transport Supervisor (B-11), the appellant (Dawood Khan) was promoted as Transport Supervisor vide order No,P&D-SOA.1/(103)2010/9137 dated 5-8-2002. The respondent No,3 challenged the said promotion order before the Ombudsman, wherein the respondent No,2 was allowed, therefore, the said order of the Ombudsman was assailed by the appellant before the Governor, Balochistan, which was also rejected on January 17th 2012. Thereafter, the appellant challenged both the orders passed by.
Provincial Ombudsman dated 9-3-2011 and Governor Balochistan on 17-1-2012 before the Balochistan High Court, wherein both the orders were set aside by the Hon'ble High Court of Balochistan vide order dated 18-7-2012. Being dissatisfied, the respondent No,2 (Ashiq Hussain) filed a Service appeal before the Balochistan Service Tribunal against the order of Planning and Development Department dated 5-8-2010 and the said appeal was allowed vide Balochistan Service Tribunal judgment dated 5-6-2013. The said Judgment was assailed by the appellant (Mr.Dawood Khan) before the Supreme Court of Pakistan in CPLA No,1059 of 2013 and the same was allowed vide order dated 13-9-2013 and order passed by the Balochistan Service Tribunal dated 5- 6-2013 was set aside by the Hon'ble Supreme Court of Pakistan and directed the Government of Balochistan as under.
"We direct the Chief Secretary, Balochistan to look in to the matter himself; ascertain as to where exactly the petitioner and the respondent are employer, and to re-determine their seniority after giving them an opportunity of hearing. Both the petitioner and the respondent are directed to appear before the Chief Secretary on 25-9-2013, and the matter of their seniority shall be finalized within one month thereafter. Accordingly, by setting aside the impugned judgment, this petition is converted into an appeal and allowed."
3. The appellant filed written comments before Chief Secretary along with certain documents, where-after the Addition Chief Secretary, Development Balochistan, vide order 11-11-2013, withdrawn the promotion order of the appellant as transport supervisor and declared respondent No,2 as senior employee of P&D Department.
4. The appellant being aggrieved by the said order. Dated 11-11-2013 passed by the respondent No,4 filed the instant appeal.
5. The appellant and his counsel are present. The counsel for the appellant argued that:-- A. The impugned notification dated 11-11-2013 is non-speaking notification and no reason has been given nor record is appreciated. B. The said Ashiq Hussain (Driver) in the garb of forged letter wants to usurp the valuable rights of Dawood Khan, Ex-Driver presently Transport Supervisor of P&D. Department which otherwise is illegal and in this regard appellant submitted application for inquiry regarding forged letter which is still pending. This fact was also not appreciated. C. The impugned notification is clear violation of direction given by Hon'ble Supreme Court of Pakistan in order dated 13-9-2013 in which the Chief Secretary of Balochistan was directed to hear the parties and there-after determine the seniority of appellant and respondent No,2, in fact Chief Secretary did not bother to hear the parties. D. When the matter in hand was sub-judice before Hon'ble Governor of Balochistan and provincial Ombudsman filed a written comments and admitted that the respondent No,2 is still employ of S&GAD department, this fact was not appreciated by the respondent No,1.
E. When mutual transfer was made by the Dawood Khan and Driver Abdul Baqi in the year 2007 which was well in the knowledge of Aashiq Hussain but not objected, in this regard Article 114 of Qanun-e-Shahadat Order, 1984 is applicable in the instant matter, therefore subsequently it cannot claim which was intentionally and knowingly not objected or assailed. F. Certain people who were initially appointed in P&D Department after merging P&D to S&GAD department and where-after they were retired by S&GAD department which fact shows that they were deemed to be employ of S&GAD department hence on this ground the said Aashiq Hussain is still employ of S&GAD department and cannot claim to be employ of P&D department, this fact was also not appreciated by the respondent No,1.
6. The counsel prayed that the order dated 11-11-2013 passed by respondent No,4 may be set aside and the promotion of the appellant may be restored and declared as Transport Supervisor (BPS-11) of Planning and Development Department in the interest of justice, equity and fair play.
7. The respondents No,2 along with his counsel are present. The counsel for the respondent No,2 stated that the appellant under the garb of ambiguous claim has attempted claim to undo the lawfully issued order dated 11-11-2013 of the Deputy Secretary Services-II S&GAS, which otherwise is inadmissible under the law as well as the appellant has no locus standi to even file the instant appeal. He contended that respondent No,2 is serving in P&D Department from very inception of his appointment till date and the respondent was never ever transferred from P&D to S&GAD, as he is a core employee of the P&D Department whereas by virtue of mutual transfer order dated 15-9-2007, appellant was transferred and absorbed as driver from S&GAD to P&D Department, thus seniority of the appellant in his cadre was reckoned to be placed at the bottom of the seniority list of P&D Department hence the contention of the appellant that the respondent No,2 is still driver of S&GAD carries no weight. Actually in pursuance of S&GAD's transfer and absorption order dated 15-7-2007 the seniority of appellant was to be reckoned at the bottom of seniority list but illegally the name of appellant, was placed at S.No,1 by depriving the respondent No,2 being senior most. Further contended that infact the Deputy Secretary (ServicesII)S&GAD in compliance coupled with approved note and decision made by the Chief Secretary has rightly passed well reasoned order dated 11-11-2013, because the respondent No,2 is core employee of P&D department. The respondent No,2 has never objected on mutual transfer of appellant rather when the name of the appellant placed at Serial No,1 and absence of name of the respondent No,2 in seniority list of P&D department did seek adequate remedies and challenged the promotion of appellant. The counsel for respondent No,2 prayed that the instant appeal being devoid of merits may be dismissed.
8. The Additional Advocate-General (Mr.Muhammad Saleem Baloch) appeared and stated that as per comments of the respondent No,3 (Secretary S&GAD), the Chief Secretary, Balochistan in compliance with the order of the Hon'ble Supreme Court of Pakistan called upon both the parties and examined the case in the light of available record which culminated as under:---
(i) The promotion of Mr.Dawood Khan has been made no legal effect, in utter violation of law, and without following the rules and procedures. It is recommended that his promotion orders may be withdrawn with retrospective effect.
(ii)) Mr.Ashiq Hussain is a core employee of the Planning and Development Department as per law and the legal record available. The Planning and Development Department may be asked to issue a new seniority list strictly in accordance with law and should encompass the name of Mr.Ashiq Hussain as being senior most (as being appointed in 1990).
(iii) The Planning and Development Department may be asked how it could place the name of Mr.Dawood Khan at Serial No,1 of their seniority list issued on 28-2-2010 despite the fact that being an absorbed employee, his name was to be placed at the bottom of the list; and also, fix responsibility for such an insidious mismanagement.
9. The learned Additional Advocate-General submitted that both the parties appellant and respondent No,2 were called upon by the Chief Secretary Balochistan and after thorough examination of the record and hearing the parties, the competent authority decided the case on merit, therefore, the instant service appeal is not maintainable and liable to be dismissed.
10. We have heard learned counsel for the parties and also gone through the record as well as parawise comments and revealed that both the appellant and respondent No,2 are drivers duly appointed in P&D Department. Their date of appointment is 1-12-1992 (appellant) and 8-4-1990 (respondent No,2). However both the appellant and the respondent were later on transferred to S&GAD. However, afterwards on the request of appellant he was re-transferred to P&D department vide order No,SGA(TPT)1-11/2006/676-83 dated 15-7-2007 wherein, the respondent No,2 remained there in S&GAD and became their employee. Therefore, in the seniority list issued on 8-2-2010 by P&D Department vide No,P&D-SOA.1(87)2010/4949 dated 8-2-2010 the appellant was placed at S.No,1 of the seniority list, whereas the name of the respondent No,2 was not appeared in the said seniority list. It is imperative to mention here that the respondent No,2 never challenge the same before the competent court and now it is barred by time. It would not be out of place to mention here that Mr. Bilal Ahmed Jamali, Ex-Secretary S&GAD while submitting comments on the appeal, filed by the respondent No,2 (Aashiq Hussain) before the then Governor Balochistan in para 3 of the comments stated: "that the contents of Para-3 are admitted with the clarification that both drivers namely Mr.Ashiq. Hussain s/o Mohammad Saleh (complainant) and Mr.Dawood Khan s/o Mohammad Murad were on the strength of P&D Department which were later on transferred and merged in S&GAD along with other driveRs, In September 2007, Mr.Dawood Khan was again transferred and merged in P&D Department on his own request whereas Mr.Ashiq Hussain remained in S&GAD who is still on the strength of S&GAD."
11. Viz-a-viz while submitting parawise comments on the Service Appeal No,513/12 filed by Mr.Aashiq Hussain on 17-11-2012 before the Balochistan Service Tribunal, (Mr. Muhammad Zeeshanul Haq) Ex- Secretary P&D being respondent No,1 in the said Service Appeal submitted "that Mr.Ashiq Hussain Driver was appointed in P&D department in April 8, 1990. At that time he was on S&GAD strength during the period of Dr. Kaleemullah, the then Minister, S&GAD and on the demand of the Secretariat Staff Association, the appellant as well as other drivers merged in S&GAD strength. It is true the respondent No,3 (Mr.Daood Khan) present appellant was absorbed in P&D department on 15-9-2007 from S&GAD strength and he is performing his duties in this department. The respondent No,3 present appellant Mr. Dawood Khan was absorbed P&D Department for the last six years and is a permanent employee of P&D Department. He is neither an influential person nor promoted on recommendation basis. The name of the respondent No,3 present appellant was at the bottom of seniority list. That three drivers gave in written that they prefer Mr. Dawood Khan to be promoted, that is why he was promoted through the rank of Transport Supervisor B-11.
12. It cannot be denied that both the appellant and respondent No,2 were transferred and merged in S&GAD Department, however later on, on 15-9-2007, the appellant (Dawood Khan) was re- transferred to P&D department with a mutual transfer with one Driver namely Abdul Baqi who was an employee of P&D Department and later mutual transferred with the appellant was sent to P&D department whereas the respondent No,2 Mr.Aashiq Hussain driver remained in S&GAD (as is evident from the order No,SGA(TPT)A-38/2000/199-212 dated 21-'-2001 issued by S&GAD wherein the respondent No,2 Aashiq Hussain was allowed BPS-B-7 i,e,, being the employee of S&GAD). This fact is also been confirmed by the two ex-Secretaries namely Mr.Bilal Ahmed Jamali Ex-Secretary S&GAD and Mr.Zeeshanul Haq, Ex-Secretary P&D Department, Government of Balochistan, therefore the seniority list issued in 2010 by the P&D department, the appellant was shown at S.No,1 of the seniority list whereas the name of respondent No,2 not appeared in the said seniority list and the respondent No,2 never challenged the seniority list of 2010 which taken finality.
13. After hearing the counsel for the parties, perused the available record and comments, it is crystal clear that the appellant was re-transferred from S&GAD and absorbed in P&D Department on 15th September, 2007, therefore his name was placed at S. No,1 of the seniority list of the Drivers issued on 8-2-2010 and simultaneously he was given promotion as Transport Supervisor (ES-11) vide order referred to above whereas the respondent No,2 was transferred from P&D Department to S&GAD therefore his name was not appeared in the seniority list issued on 8-2-2010 hence he is still working in S&GAD, as is evident from the perusal of parawise comments submitted by the Additional Chief Secretary (Dev:)P&D department, paras.3, 4 and 5 which are reproduced below:---
3. The Secretary P&DD in his comments/defense (F/B) clarified the Honorable Ombudsman regarding the above mentioned case that there are (17) posts of drivers in P&DD out of which (13 thirteen posts belong to S&GAD cadre and (4) four posts to the P&D Department. It is further clarified that services of Mr.Aashiq Hussain s/o Abdul Saleh (complainant) along with other all drivers have been transferred and merged in S&GAD on the demand of Secretariat Staff Association during the period of Dr.Kaleem-Ullah, the then Minister of S&GAD and S&GAD has also granted Selection Grade (B-7) to Mr.Ashiq Hussain s/o Muhammad Saleh being his parent Department(F/C).
4. That the S&GAD issued seniority lists of all drivers of S&GAD vide letter No,SGA(TPT)1- 38/2008/260-75 dated 6-3-2008 and vide letter No,SGA(TPT)1-38/2010/1261-1310 dated 27-10-2010 wherein name of Mr.Ashiq Hussain appears at Sr.No,68 & Sr.No,57 respectively (F/D & F/E).
5. That decision of the Provincial Ombudsman dated 9-3-2011 received in P&D Department on 17-3- 2011 contains that the complainant has proved maladministration against respondent agency i,e, P&D Department. Therefore, the agency is required to redress the grievance of the complainant (F/F).
14. Further the Ex-Secretary S&GAD Mr.Bilal Ahmed Jamali, while submitting parawise comments to the Governor Balochistan stated in para 3 that:---
3. That the contents of Para-3 are admitted with the clarification that both drivers namely Mr.Ashiq Hussain s/o Muhammad Saleh (complainant) and Mr.Dawood Khan s/o Muhammad Murad were on the strength of P&D Department which were later on transferred and merged in S&GAD along with other driveRs, In September, 2007, Mr.Dawood Khan s/o Muhammad Murad was again transferred and merged in P&D department on his own request whereas Mr.Ashiq Hussain s/o Muhammad Saleh remained in S&GAD who is still on the strength of S&GAD.
15. Furthermore Ex-Secretary P&D Department (Mr.Muhammad Zeeshanul Haq) while submitting parawise comments on Service Appeal No,513/12, paras.1 and 2 and in ground of parawise comments stated that:-
1. That Mr. Ashique Hussain, Driver was appointed in P&D Department in April, 8, 1990. At that time he was in S&GAD strength during the period of Dr. Kalimullah, the then Minister of S&GAD and on the demand of the Secretariat Staff Association, the appellant as well as other drivers merged in S&GAD strength.
2 . It is true the respondent No,3 was absorbed in P&D department on 15th September 2007 from S&GAD strength and he is performing his duties in this Department.
C. The appellant was not subjected to injustice as his services were placed at the strength of the S&GAD being junior to others his name in seniority list is at S.No,57.
16. In view of the above facts, it is quite clear that the respondent No,2 (Mr. Aashiq Hussain) is an employee of S&GAD department, therefore, his claim for promotion as Transport Supervisor (B-11) is not justified, therefore the appeal is accepted and the impugned orders issued by the respondent No,4 (Additional Chief Secretary) P&D Department, and respondent No,1 (Deputy Secretary (Services-II S&GAD), dated 27-11-2013 and 11-11-2013 are hereby set aside with no order as to cost.
File after completion be consigned to record.