' A.
0. RAZIUR RAHMAN (MEMBER).--The appellant, who was recruited as Income-tax Officer, Class-I (Junior Scale) on the basis of the C.S.S. Examination held in 1961 and, subsequently, promoted to the Senior Scale with effect from 1st January, 1969, was compulsorily retired from service on 13th March, 1972 under MLR 114. Subsequently, when a Federal Review Board was constituted under MLO- 23, the Board recommended his re-instatement in service and the CMLA ordered his re- instatement on 7th June, 1978. During the period of retirement of the Appellant from 13th March, 1972 to 6th June, 1978 Respondents 3 to 60, who were junior to the Appellant as Income-tax Officer, Class-I (Senior Scale) (now Grade 18), were as alleged by the Appellant, promoted to Grade 19 in different batches. On 20th February, 1979, that is, about 9 months after re-instatement, the Appellant was also promoted from Grade 18 to 19 and posted as Assistant Commissioner, Income- tax.
' After some time, the Appellant came to learn that officers of his batch were being considered for promotion to Grade 20 of the Income-tax Group. On an enquiry made by him from the relevant quarters, he came to learn that his name was not considered for promotion to Grade 20, as he had been promoted to Grade 19 only recently i,e,, on 1st March 1979. Thus, in spite of being senior to the Respondents mentioned, the Appellant was passed over for consideration for promotion to the higher grade. Against this, he submitted a representation, dated 12th November 1981, to respondent No, 2, requesting that, in view of his seniority, his name be sent up for consideration for promotion.
This representation was, however, turned down by the said Respondent, by an order dated 13th December, 1980 which was communicated to him by the Commissioner of Income-tax, Karachi, on 16th December, 1980 This decision of Respondent No, 2, which purports to have been based on general instructions issued by the Establishment Division, inter alia, stated as under : "Mr. Junejo M. Iqbal was re-instated in service under MLO-23. His seniority has been determined in accordance with the orders contained in the Establishment Division's 0. M. No, 3/3/78-R.II, dated the 5th July, 1979, the extracts of which are reproduced below :
(d) Seniority in Grade.-The re-instated persons may be allowed normal seniority in the grade in which they were serving at the time of retirement. In other words, they would be placed in the same position in that grade, which they would have enjoyed had there been no retirement.
(e) Promotion and seniority in higher Grade. -The persons re-instated in service may be considered for promotion on the basis of their seniority in the Grade held by them in accordance with the normal rules. On promotion to higher grade, they may be allowed pay and seniority from the date of their regular appointment to posts in the higher grade. There will be no automatic promotion on the principle of 'next below' rule.
' In view of this it is regretted that it is not possible to accede to his request."
2. Against the aforesaid order, the Appellant preferred departmental appeal to the President of Pakistan, through the Secretary, Estt. Division, on 14th January, 1981. Simultaneously, he came up in appeal before this Tribunal also on 14th January, 1981. Since the appeal before the Tribunal was premature, as a period of 90 days had not elapsed between the submission of the departmental appeal/representation and the filing of the appeal before the Tribunal, the Appellant submitted a fresh appeal on 26th April, 1981 which was admitted for regular hearing by the Tribunal's order, dated 28th May, 1981. The regular hearing took place on 5th June, 1982. Both the appeals being in substance the same have been treated as one and are being disposed of by this order.
3. The main grounds on which the appeal has been preferred, are : that, according to the procedure and practice in the Income-tax Department, an Income-tax Officer is entitled to be considered for promotion as Assistant Commissioner on completing 10 years' satisfactory service as Income-tax Officer : that the promotion of the Appellant to Grade 19 was held up for no fault of his but on account of an illegal action of the previous regime in retiring him from service ; that this illegal action could not deprive the Appellant of his vested right based on his correct place in the seniority list as Income-tax Officer ; that, had the Appellant continued in service, he would have been considered for promotion along with the 1962 batch of Income-tax Officers and, on the basis of his record, actually promoted on 28th July, 1973 and that, by virtue of his re-instatement in service, all the vested and acquired rights, interests and privileges, which were available to him at the time of his retirement, had to be restored to him and this included restoration of his original seniority, along with the right to be considered for promotion.
4. The written objections filed on behalf of Respondent No, 2, which stated the departmental stand in the matter, maintained that the seniority of the Appellant had been rightly determined in accordance with the Government instructions on the subject, as contained in the Estt. Division, O.M.
No, 3/3/78.RII, dated 5th July, 1979, to which reference was made in the impugned order (referred to in the opening paragraph), and that he was not entitled to promotion with effect from an earlier date than that on which the order of his regular appointment to the higher post was issued.
5. We have heard both the parties in detail and perused the relevant documents. It is admitted by Respondent No, 2 that the Appellant was senior to Respondents Nos. 3 to 49 and 60, who were junior to the Appellant before he was retired from service and were promoted to Grade 19 prior to him, 41 of them before his reinstatement and 7 afterwards. It is also admitted that, as a result of these promotions, the Appellant, who was shown at Serial No, 168 of the "Classified list of Officers of the Ministry of Finance, Pakistan Audit Department, Military Accounts Department, Railway Accounts Department and Pakistan Mint, corrected up to 31st December, 1968" while Respondent No, 3 was shown at serial No, 174 and Respondent No, 60 at Serial No, 150, has been shown at Serial No, 64 of the list of Grade 19 officers in the Income-tax Group as on 31st December, 198) in which Respondent No, 3 has been shown at Serial No, 17 and Respondent. No, 60 at Serial No,
58. This, according to Respondent No, 2, is in accordance with the present rule relating to the determination of seniority in a particular grade, as contained in subsection (4) of section 8 of the Civil Servants Act, 1973, which reads as under : "Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade."
' It is contended by the said Respondent that, since the Appellant was promoted to Grade 19 on 20th February, 1979 he can count his seniority in that grade only from that date, which is subsequent to the date of promotion of his Juniors. According to the said Respondent, these juniors, promoted earlier than the Appellant, fall into two categories. The first category, comprising 41, is of those promoted during the period the Appellant was out of service. The second category, numbering 7, is of those promoted after the re-instatement of the Appellant on 7th June, 1980, but before his promotion on 1st March, 1979. The stand taken by the Respondent is that both these categories are to be treated as senior to the Appellant in the new grade (19). This is palpably contrary to the Government instructions on the subject, and we are not only amazed but also shocked that the concerned department should have taken such a stand. In paragraph 22 of their written objections, "ON FACTS" they have stated : "The promotion of the appellant in Grade 19 made on 20th February, 1979 was not delayed as the same was made in accordance with the orders contained in Establishment Division O.M. No, 35/13/78-A. 1, dated 26th November, 1978."
' As against this, the instructions referred to, inter alia, read as follows :- "In case any Government servant junior to the re-instated Government servant is promoted to a higher grade post after his re-instatement, such promotion will not only be considered as provisional but the seniority of the re-instated Government servant, if subsequently promoted to a higher grade post, will remain protected in that grade vis-a-vis his juniors."
' There is no vagueness or ambiguity in these instructions, which are exactly the opposite of what has been claimed by Respondent No,
2. Whereas Respondent No, 2 has accorded seniority to the Appellant with effect from 20th February, 1979 the date on which his promotion order was issued, the instructions clearly and positively give to the re-instated officer the right of seniority in retrospect vis-a-vis the juniors promoted after has re-instatement. There is, therefore, no scope for two opinions on the point that the Appellant has to be treated as senior to those seven juniors of his who were promoted from Grade 18 to 19 after his re-instatement but before his actual promotion. The refusal of the Respondent department to accept his position is, therefore, totally unjustified, being both against logic and justice and contrary to the clear instructions on the subject. That being so, we shall have no hesitation in ordering that those of the Respondents who were promoted after the reinstatement of the Appellant shall be treated as junior to him, if they were also junior to him in the lower grade.
6. Now to come to the question of the seniority of those juniors who were promoted during the absence of the Appellant from service. The crux of the matter is that the Appellant was unjustly retired from service under MLR-114 in 1972. In 1978, he was re-instated as a result of the recommendations of the Review Board set up under MLO-23. On re-instatement, his previous positions as a civil servant was legally restored to him and, thereby, he became entitled to the rights and privileges which accrued to him as a civil servant belonging to a particular service in a particular grade on the date of his retirement. Thus, the status quo ante his retirement was restored. This, naturally and automatically, 'implied that his original seniority in the grade, to which he belonged at that time, remained unaltered, in spite of the fact that he had been retired and remained out of office for a number of years. In other words, he continued to be senior to all those colleagues of his who had been promoted out of turn over his head during the period he remained out of office. Actually, however, these juniors had, because of their promotion, already moved on to the next higher grade and, therefore, had the advantage of a number of years of service in the higher grade by the time the Appellant was re-instated in the lower grade. All the same, the appellant was approved for promotion and actually promoted soon after his re-instatement. By virtue of this promotion, he became entitled to count his seniority in the new grade over his juniors promoted earlier during his absence, since the delay in his promotion was not because of any lack of merit in him or any fault of his. As he had been wrongly and unjustly kept out of office, the fault lay with the Government and not the Appellant-a fact which was clearly acknowledged by the Government by re-instating him in service. That being the position, it would not only be a travesty of justice but a positively self-contradictory and ridiculous situation if, in spite of his re-instatement and in spite of the Government verdict in his favour, after he had been unjustly and wrongly kept out of office for so many years, he were made to undergo the penalty of losing the benefit of his seniority on the plea that he had been promoted to the higher grade on a later date than his junior collegues. It would not only tantamount to blowing hot and cold in the same breath but also to reposing, in a modified form, the punishment inflicted in an unwarranted and wanton manner by the previous regime, thus, in a way, reviving the original injustice, which MLO-23 and the re- instatement ordered there under were intended to remove. It would also be contrary to the principles laid down in paragraph B(i) (a) and (b) of Annexure I to the instructions contained in 0.
M. No, 1/16/69-D-11, dated 31st December, 1970, on the subject of the "General Principles of Seniority"
(reproduced at page 111 of Estacode, 1979), according to which, whenever an officer is left out of consideration for promotion for no fault of his, he is to count seniority, in case he is promoted subsequently, from the date on which he was actually due for consideration. The relevant passage of the instructions referred to is reproduced below : "B. Departmental promotions.-(i) Officers who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date, provided that :-
(a) an officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he shall take his seniority with the original batch ;
(b) when in a single reference, the Selection Board/DPC are asked to recommend more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc. Or for reasons beyond the control of the persons concerned, the recommendation of the Selection Board/1)PC in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made."
7. As already mentioned, Respondent No, 2 has relied on the wording of subsection (5) of section 8 of the Civil Servants Act, 1973 to deny to the Appellant the seniority in the higher grade claimed by him. The said provision of Civil Servants Act, is reproduced again : "8(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular promotion to a post in that grade."
According to the Respondent's interpretation, regular promotion in the case of the Appellant took place after his re-instatement inservice and therefore, he can count his seniority only from the date of this promotion. We do not find ourselves in agreement with the view that regular appointment cannot be taken to be from a date prior to the actual date of issue of an order of appointment.
Such appointment can also be retrospective in effect, as in those cases which are covered by Paragraph (i) (a) & (b), I just discussed a little while ago. Obviously then, the stand of Respondent No, 2, that regular appointment to a higher post cannot have retrospective effect, has no legs to stand on and cannot be upheld. Moreover, when the order of removal from service was set aside by the Review Board and the Appellant re-instated in service, the fact was acknowledged that his removal from service was null and void. Consequently, he became entitled to all the benefits flowing from his re-instatement, with the exception of those specifically excluded. This is clear from paragraph 5 of ML0.23, which excludes certain benefits, "such as dam-8 ages, compensation, or arrears of emolument" but not the benefit of promotion to the higher grave from the date on which he was entitled to be considered for promotion under the normal rules. Under the rules applicable to all services, he should have been considered for promotion on the same date on which other officers of his batch in the same grade were considered. Besides, as claimed by the Appellant and not denied by the Respondent Department, an Income-tax Officer, on successful completion of ten years of service in that capacity, was, of the relevant time, entitled to be considered for promotion as Assistant Commissioner of Income-tax. Therefore, since he was appointed as Income-tax Officer in 1962, he should have been considered for promotion somewhere in 1972-73, when the Civil Servants Act, 1973 had not yet come into force and section 8(4), relied upon by the Respondent Department, was not available. Accordingly, when he was actually considered and found fit for promotion, he was entitled to be deemed to have been considered and found fit for promotion in 1972-73, as provided for in sub-para. (1)(b) of paragraph B of the "General Principles of Seniority"
(vide "Estacode", 1979, page 1 l 1), already referred to in para 6 above.
8. There is, obviously, no conflict between the provisions of section 8(4) of the Civil Servants Act, 1973 and the principles of seniority referred to, because, since, according to the "Principles of Seniority", seniority is countable from the date of recommendation for promotion and the recommendation can, in some cases, be back-dated, it is obvious that the regular appointment also stands back-dated in such eases. Moreover, it cannot be denied that it has always been the intention of the Government that, whenever an officer is left out of consideration for promotion for no fault of his, the injustice done to him should be removed by giving retrospective effect to the promotion, in case he is subsequently considered and found fit for promotion, because the administrative instructions on the subject, contained in the "Principles of Seniority", drawn up in consultation with the Federal Public Service Commission and issued in 1970, have neither been withdrawn nor amended, in spite of the promulgation of the Civil Servants Act, 1973, three years later. Obviously, there was no need either for cancellation or amendment of these administrative instructions, because of the absence of any conflict between the provisions of the Civil Servants Act and the instructions. As for the relevance of the provisions contained in subsection (4) of section 8 of the Civil Servants Act, it is obvious that it has been incorporated with the object of making it clear that seniority in a particular grade to which an officer is promoted shall be counted from the date on which he is appointed on regular basis to the post. As distinguished from ad hoc, temporary or contract basis (vide rule 2 (d) of the Federal Public Service Commission (Functions) Rules, 1978. In the instant case, the Appellant, having been left out of consideration at the proper time, for no fault of his, and having been considered and found fit for promotion subsequently, can also be treated as having been appointed on regular basis from the date on which his junior were promoted. The period during which he remained out of service having been treated as on duty, by virtue of his re- instatement, his appointment in the higher grade will be treated as continuous and, therefore, it will give him the benefit of seniority on the basis of continuous officiating in the higher post,
9. We are reinforced in our conviction on the above point by the instructions issued by the Estt. Division to resolve issues arising out of re-instatement of Government servants under MLO-23. The instructions contained in O.M. No, 3/3/78-R11, dated 5th July, 1979, which have been relied upon by Respondent No, 2, in defence of his refusal to accede to the claim of the Appellant, very clearly states that the re-instated person is to be allowed the original seniority in the grade in which he was serving at the time of retirement. That being so, as a consequence of such placement, he becomes entitled to all benefits of restoration of the original seniority, including that of consideration for promotion to the higher grade at the proper time. Since. In the case of the present Appellant, the proper time for consideration of his case for promotion was when he was out of service, he was entitled, on being approved for promotion after reinstatement, to seniority in the higher grade with effect from the earlier date. This 0.M by lapping down that there will be no automatic promotion on the principle of next below rule, clearly implies that promotion will be on the basis of the normal Rules of Promotion and not merely on the ground that a junior person his already been promoted. Another.
9. M. Of the Estt. Division No, 3/3/78 E-11, dated 3rd July, 1979, says that the intervening period between the date of retirement, removal etc. And the date of re-instatement of officers under MLO.23 was to be allowed for the purposes of promotion to count towards the length of service in the original grade. Reading all the relevant instructions together, it can be safely inferred that it was never the intention of the Government to deprive an officer of his right of promotion to the higher grade, merely because he had been kept out of service for some time by an unjust order of Government which has since been set aside.
10. The reliance put by the Respondent Department on the instructions at "e" of the Establishment Division O.M. Dated 5th July, 1979, reproduced in the opening paragraph, is also misplaced. As the opening sentence says, "the persons reinstated in service may be considered for promotion on the basis of their seniority in the grade held by them in accordance with the normal rules". As we have observed, under the normal rules, such persons, since they were kept out of consideration at the proper time, are to be considered for promotion at the earliest available opportunity and, if recommended for promotion deemed to have been so recommended from the earlier date and, therefore entitled to seniority with effect from that date (vide B (i) of the "General Principles of Seniority").
11. In the light of the above discussions, we are satisfied that the re-instatement of the Appellant officer, and his subsequent approval for promotion to Grade 19, entitled him to count his seniority in Grade 19 from the date on which it was due for consideration during the period of his absence from office. In other words, on promotion to Grade 19, he became senior in that grade to all his junior colleagues promoted before and after his re-instatement. That being so, he is entitled to be considered for promotion to Grade 20 earlier than the said respondents.
12. In the result, we allow the appeal and order that the Appellant be assigned seniority in Grade 19, with effect from the date on which he should have been considered for promotion to that grade, had he not been unjustly removed from service and that his seniority, vis-a-vis Respondents 3 to 60, be adjusted accordingly and further that he should be considered for promotion to the next higher grade on the basis of this seniority.
13. No order as to costs.
14. Parties to be informed.
' BRIG. ABDUR RASHID (MEMBER).--The respondents listed at serial 3 to 60 of the memo. Of appeal were issued notices to enable them to plead their cases. Of the said 58 respondents, only four chose to furnish their written replies which it is essential for us to dispose of.
16. Sahibzada Mohammad Arif (Respondent No, 5) in his reply has stated that the C.B.R. Notification No, 71-I.T.E. Dated 7th June, 1978 relying on para 5 of ML0-23, has inter alia mentioned that Mr. Junejo M. Iqbal shall not be entitled to any damages, compensation or arrears of emoluments or other benefits for the period he remained out of service. In the opinion of the said respondent, C.B.R.
And the Establishment Division had rightly deprived the appellant of his seniority within the meaning of "damages" and "other benefits".
17. Mr. Ahsan Alam (respondent No, 7) in his written reply dated 9th September, 1981 has averred that since the existing rules in the matter do not admit any interference, the present appeal is not maintainable.
18. Mr. Abdur Rehman Afridi (respondent No, 27) in his written reply dated 25th July, 1981 has expressed the same views as those of respondent No, 5 outlined at para 16 above.
19. Mr. Sikandar Kalim Afzal (respondent No, 38) in his written reply dated 20th July, 1981 has repelled the claim of the appellant that the seniority of the Income-tax Officers is determined only once by arguing that as per Civil Servants Act, 1973, seniority is determined in each grade in accordance with the date of promotion to a particular grade. Since the respondent was promoted to grade 19 on 5th Jure, 1978 as such, he is senior to the appellant, who was placed in grade 19 on 20th February, 1979. The said respondent also feels that the appellant's re-instatement does not entitle him to seniority as claimed by him because it is a benefit and not a right. The respondent has also rejected the plea of the appellant that an Income-Tax Officer could be promoted as Assistant Commissioner after satisfactory completion of 10 years' service.
20. It would be, as well, to summarise the views of all the four respondents as under :
(a) Fixation of seniority once and for all as claimed by the appellant has no legal basis.
(b) "Damages" and "other benefits" include seniority and the appellant has no right to claim it retrospectively for the simple reason that the seniority reckons from the date of promotion to a particular grade as enunciated by the Civil Servants Act, 1973.
21. In order to reply to (a) above viz. Fixation of seniority once and for all, at the time of entry in class I (Junior Scale) as claimed by the appellant and in support of which he has cited the cases of M/s. R.M. Ikram v. C.B.R. (Appeal No, 9 (R)/1977) and Ahmad Niaz v. Establishment Division and others Appeal No, 9 (K)/1979) decided by this Tribunal, it may be mentioned that in the case of R.M. Ikram this Tribunal had ruled that the Ministry of Finance letter No, C. 10 (31)/AIT/SS dated 22nd June, 1957 wherein it was laid down that a person appointed in a junior scale of ITO will, on promotion to the senior scale, retain seniority in the junior scale irrespective of the date of promotion, was silent about seniority in the Junior Administrative Scale of the Assistant Commissioners of Income-tax, a post now in grade 19. This judgment of the Tribunal, therefore, does not support the claim of the appellant for an all-time seniority which has, in any case, ceased to be relevant after the promulgation of the Civil Servants Act, 1973. As mentioned under Serial No, 126 (page 108 Estacode) at para 2, the latest position is : ' In the case of groups where the cadre had not been amalgamated with any other cadre the seniority in different grades as determined under the previous rules before the promulgation of the Civil Servants Ordinance, 1973 (15th August, 1973) shall not be disturbed. However, seniority of persons promoted to higher grades after 15th August, 1973 shall be determined strictly in accordance with the provisions of subsection (4) of section 8 of the Civil Servants Act, 1973."
22. As regards the case of Ahmad Niaz, he had been retired under MLR-114 on 13th March, 1972 and subsequently re-instated under MLR-116. The order of re-instatement passed by the then President vide Establishment Division notification dated 12th August, 1973, rescinded the earlier retirement order. During the intervening period of Ahmad Niaz's retirement and re-instatement, certain ITOs were promoted as Assistant Commissioner who were junior to him. Mr. Ahmad Niaz was promoted to grade-19 (Assistant Commissioner on 16th April, 1974 and he was placed junior to his otherwise junior colleagues in accordance with the Civil Servants Act, 1973 which had, then, become operative. However, in this case the Tribunal had ruled that the entry of Ahmad Niaz stood determined once for all after his entry in class I (Junior) on 23rd September, 1958. While accepting the appeal the Tribunal had said that since Ahmad Niaz would be deemed to be legally in service after 13th March, 1972 he was entitled to his right of promotion in terms of the Ministry of Finance letter (dated 22nd June, 1957) from the date his next Junior was promoted. The distinguishing feature of his case, however, is that Ahmad Niaz was retired and then re-instated before the Civil Servants Act, 1973 came into being. I do not, therefore, think that this case helps the appellant (Junejo M. Iqbal) either.
23. This brings us to certain relevant operative parts of MLR-116 and MLO-23 for critical analysis and comparison. Para. 4 of MLR-116 dated 15th March, 1972 said : " the Chief Martial Law Administrator may, on consideration of the review petition and any other relevant material confirm, modify or rescind the order in respect of which such petition is made."
' MLO-23 was promulgated on 22nd October, 1977. Its purpose was to provide a right of review to those Government/corporation employees who had been compulsorily removed between 1st January, 1972 and 5th July, 1977. In the proviso to para. 5 of the MLO it was laid down : ' In that any order passed on a petition, including an order of re-instatement, shall not entitle the petitioner to any damages, compensation or arrears of emoluments or other benefits for the period he remained out of service."
24. It will be observed that whereas under MLR-116, the rescission of the earlier order of MLR-114 meant re-instatement without any penalties as if the affected person had ALWAYS remained in service, it has not been so under MLO-23.
25. After the M. L.
0. 23 had become operative, the Establishment Secretary put up a summary dated 11th June, 1978, the C. M. L. A. (and approved by him on 26th June, 1978), wherein he (Establishment Secretary highlighted certain issues all of which are not relevant to this case except paras 8 and 9. Para 8 of the summary said : "The re-instated persons may be allowed normal seniority in the grade in which they were serving at the time of retirement. In other words, they would be placed in the same position in that grade which they would have enjoyed had there been no retirement.
' Para. 9 (Promotion and Seniority in Higher Grade) of the summary said : "The persons re-instated in service may be considered for promotion on the basis of their seniority in the grade held by them in accordance with the normal rules. On promotion to higher grade, they may be allowed pay and seniority from the date of their regular appointment to posts in higher grade. There will be no automatic promotion on the principle of 'next below' rule."
26. Whereas in the case of M. L. R.-116 'next below' rule was operative before the promulgation of the Civil Servants Act, 1973 as explained in the case of Ahmad Niaz, it was taken away under M.L.O.23.
27. No, doubt the seniority of a civil servant took effect from the date of regular appointment to a post in that grade as laid down in section 8 (4) of Civil Servants Act, 1973 but in accordance with the General Principles of Seniority pars B. (0 (b) page 111 Estacode), if he (a civil servant) was not considered for reasons beyond his control, the recommendation of the Selection Board/D. P. C. In respect of such person, when made subsequently, will be deemed to have been made on the date when the recommendation in respect of the original batch was made. These two provisions viz. Section 8 (4) of the Civil Servants Act, 1973 and para. B (1) (b) (page 111 Estacode) ought to be reconciled and an interpretation given which is more favourable to an aggrieved person. The appellant (Junejo M. Iqbal) remained on retired list between 13th March, 1972, and 6th June, 1978.
His re-instatement took effect on 7th June, 1978, as a result of M. L.
0.-23 but with handicaps as outlined therein as well as in the Establishment Secretary's summary dated 11th June, 1978.
28. It may be highlighted that we have, nowhere, found in M. L.
0.23 mentioned in so many words, and that the re-instated officials are to be deprived of their due seniority. The learned State counsel argued before us that the words damages, compensation and other benefits occurring in the proviso to para 5 of M. L.
0. Did include seniority as well. Without the actual word "seniority" appearing in print, rather than being left to the imagination or varying interpretations, we are simply not convinced of this argument. In this connection I would like to refer to the ejusdem generis rule. At pages 297-8 of "Maxwell on the Interpretation of Statutes" (12th Edition) it is said : ........ ' the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words. For `according to a well-established rule in the construction of statutes, general terms following particular ones apply to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature.' In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expression, unless there is something to show that a wider sense was intended, as where there is a provision specifically excepting certain classes clearly not within the suggested genus."
Applying the above rule of judge generis to the proviso to para 5 of M. L.
0.-23 it will be observed that a reinstated official shall not be entitled to any damages, compensation or arrears of emoluments or other benefits. To me it is quite clear that the underlined words deal with and relate to Monetary Field only. To extract and interpretation of "seniority" out of this set of related words which really deal with money matters, would be too far- fetched. The seniority is clearly not within the suggested genus of any of the words like damages, compensation, arrears of emoluments or other benefits. Such being the case, no one can be deprived of his seniority in such a light-hearted manner as has been done. *[Hare in italics] -29. As enshrined in section 8 (I) of the Civil Servants Act, 1973 : "For proper administration of a service or grade, the appointing authority shall cause a seniority of the members, for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be."
30. The above section, on the face of it, may not confer any vested right but taken in the proper meaning and spirit, it was certainly not intended by legislature or deprive anyone of his due place in a seniority list accruing to him and on the basis of which one were to be promoted. Without a seniority list, proper administration of a service, cadre or grade would be inconceivable. The civil servants who are incorrectly placed have a right of legal remedy available to him which, by implication, does give a vested right.
31. In this particular case the appellant remained out of service. On his reinstatement he carried no stigma as admitted before us by the learned State counsel. During his ouster of nearly six years, officers junior to the appellant (Junejo M. Iqbal) were promoted simply because the consideration of his name for further promotion was beyond his control. Even if the 'next below' rule did not exist in his case, we hold that this subsequent promotion to grade 19 entitled him for purposes of seniority, to the same date on which others, of his batch were promoted. We can give no other meaning to para B. (1) (b) to Annexure I to the General Principles of Seniority already highlighted by my learned colleague.
32. The foregoing discussion, also, disposes of the two objections (para 20) raised by four respondents (No, 5, 7, 27 and 38). As regards other respondents this order shall be treated as ex parte.
33. With the above addition, I endorse the order of my learned colleague at para 12 above.