1. ' MUSHTAK ALI KAZI (CHAIRMAN).-This appeal under section 4 of the Sind Service Tribunals Act, 1973 regarding question of inter se seniority of the appellant in Sind Secretariat Service, has been preferred under the following circumstances.
2. ' The appellant was working in permanent service as Camp Clerk to the Education Minister in Khairpur State Secretariat. On integration of the West Pakistan Province in the year 1955, the Khairpur State as integrating unit was merged in the Province of West Pakistan. The Secretariat staff of that unit was declared surplus and the appellant was absorbed in his original grade as Senior Clerk in the office of the Divisional Commissioner, Khairpur Division. He was promoted as Assistant from 1st October 1962 and worked there till 19th March, 1972 when as a result of re- organization, the office of the Divisional Commissioner was abolished and the appellant was absorbed as Assistant in the Sind Government Secretariat.
3. ' M/s. Aftab Ahmad Siddiqui and Makhdoom Mohammad Siddiq were also working as Assistants in the office of the Commissioner, Hyderabad Division. Both of them were absorbed as Assistants in the Sind Secretariat in similiar manner.
4. ' Previous to the promulgation of the Sind Civil Servants Act, 1973, the Government used to issue circulars containing policy decisions regarding fixation of inter se seniority of staff. By a circular letter No, SOVIII-Reg. (S&GAD) 6-29/73 dated 9th October, 1973, the Government of Sind followed the defunct West Pakistan Government policy decision, treating member of the staff of the Divisional Commissioners on abolition as surplus staff and regarding them as direct recruits in the new office of their appointments; previous service rendered by them to be counted towards their pension and leave only. The position was then clarified by the decision of Supreme Court in PLD 1961 SC 105 that no legal rights could be founded on the instructions only which had not been incorporated in Statutory Rules. Those office instructions were only meant for guidance and no rights could be based on the policy decision, since they did not have the characteristic of subordinate legislation. Then came the Sind Civil Servants Act, 1973. Under section 8 of the said Act, seniority of a civil servant had to be reckoned in relation to other civil servants belonging to the same service or grade, whether serving in the same department or office or not, as may be prescribed. Seniority in grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. M/s. Aftab Ahmed Siddiqui and Makhdoom Mohammad Siddiq made representations to the Government for counting their service, as Assistant in the office of the Divisional Commissioners, towards seniority. These representations were rejected and they accordingly preferred appeals No, 225 and 226 of 1974 before the Sind Service Tribunal, Karachi. These appeals arose out of the circular letter dated 9th October, 1973 regarding policy decision of the Government. The appeals were decided by the Service Tribunal by a judgment dated 3rd November. 1976 with Mr. Hamzo Khan Qureshi as Chairman and M/s. Abdul Wali Makhdoom and Abdul Kadir as Members. In the majority judgment of the Chairman and one of the Members, it was observed that there was any amount of force in the appellant's contention that their seniority as Assistant was protected by law and could not be disturbed through policy letter dated 9th October, 1973. That the appellants were originally appointed in the defunct Khairpur State service and according to the Establishment of West Pakistan Act, 1955 subsection (3) of section 8 from the appointed days they were deemed to be persons serving the crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of West Pakistan may determine provided that such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955. That the position of the appellants did not alter till the office of Commissioner Hyderabad was abolished in March 1972. The appellants, therefore, continue to have same protection and were entitled to their original seniority as Assistants. That there was no proof that the appellants were declared surplus at the time of integration. They were transferred from the Commissioner's office to the Government of Sind Secretariat on 26th April, 1972. That no option was obtained from them under rule 266 of Sind Civil Service Rules, Vol. I whether they would accept another appointment or transfer to another establishment without any guarantee of their seniority in the new establishment. Since rule 266 was not applicable to them the terms and conditions of their service cannot be changed to their disadvantage as guaranteed by section 8 of the West Pakistan Act, 1955. That their continuous officiating as Assistants would therefore be the determining factor for their seniority in that grade. That it would be great injustice if their continuous service of 18 or 20 years were washed off or ignored. In that case their juniors would become seniors to them and they would suffer an irreparable loss for no fault of theirs. This would not only be against the principles of natural justice but also against the contents of rule 266 of Sind Civil Service Rules Volume-I. That mere administrative re-organization would not affect the terms and conditions of service of the appellants to their disadvantage. The appeals of both the officers were allowed and they were entitled to seniority after counting their past service as Assistants in the former Sind Secretariat and in the Commissioner's office.
5. ' The above majority decision was implemented by the Government of Sind and no appeal was preferred by the Government in the Supreme Court.
6. ' The present appellant' Mohammad Moosa Soomro accordingly claimed that same principle should apply in his case also, since his case was identical to that of Aftab Ahmed Siddiqui and Makhdoom Mohammad Siddiq. The Additional Secretary Regulation Wing in the Services Department accepted this position that case of Mr. Soomro, i. e. Appellant was on all fours with that of Aftab Ahmed Siddiqui and Makhdoom Mohammad Siddiq and he may be allowed seniority with effect from 9th June 1954 in the cadre of Senior Clerks. He however advised that the papers be also shown to Law Department for confirmation.
7. ' The then Secretary Law Department in his note stated that since the Tribunal's verdict had been made the basis for giving seniority to the other two officials, it would not be desirable to employ a different yardstick in similar case of the appellant, since Mr. Soomro like the 2 other officers became surplus on abolition of the Commissioners set up and was absorbed in the Secretariat.
8. That the case of Mr. Soomro was similar to that of the other two officers in all respects except that the Service Tribunal had ruled in favour of the two officers and this beneficial announcement was yet to be made in case of Mr. Soomro. The Law Secretary accordingly gave the opinion that the Government should either confer the some benefits of seniority on Mr. Soomro or direct him that he too should obtain similar verdict from the Service Tribunal.
9. ' The Government chose the second alternative and rejected the representation of the appellant.
10. His departmental appeal was also rejected by the Chief Secretary and he was advised that in case he was not satisfied with the decision, he may take recourse to the Sind Service Tribunal. The appellant accordingly preferred this appeal on the advice of the Government.
11. It has been argued by Mr. A. A. Mohammad, Assistant Advocate-General on behalf of the Government that if the claim of the appellant is upheld it would affect the seniority of 194 persons who have already superseded him and 92 persons who have been promoted as Section Officers would also be partly affected. No such objection appears to have been taken by the A. A.-G. In his written statement filed in this case. In any case it would be impracticable to join 194 persons as co- respondents specially when most of them have been promoted or have already retired. In the case of Sultan Mahmood v. Government of Pakistan (1), it was held that seniority is a right relating to status, and it cannot be allowed to be affected by the consideration that it would disturb some appointments already made in disregard of due seniority.
12. ' It has then been pointed out that under rule 9-A of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 "Notwithstanding anything contained in these rules, a person who has been rendered surplus on account of abolition of a post he was holding in, any office or department of the Government or, any autonomous body or, on account of permanently taking over the administration of such autonomous body wholly or partially by the Government, may be appointed to any post in any department or office of the Government, provided that:-- (i)
(ii) --------------------------------
(iii) Seniority of such person in the new cadre shall be reckoned from the date of appointment in that order."
13. ' To this argument the reply is firstly that_ the appellant could not be considered as surplus since no option under Rule 266 of the Sind Civil Service Rule Volume I had been obtained from him. It was as a result of re-organization that the appellant on abolition of the office of the Divisional Commissioner was absorbed in the Sind Secretariat. Rule 266 reads as under:- "If a Government servant is selected for discharge owing to the abolition of his permanent post or owing to a change in the nature {{FOOT NOTE}}
(1) PLD 1964 SC 302 {{FOOT NOTE}} ' of the duties of that post, he shall unless he is appointed to another post, the conditions of which are deemed by the authority competent to discharge him, to be at least equal to those of his own, have the option;
(a) of taking any compensation pension or gratuity to which, he may be entitled for the service he has already rendered, or
(b) of accepting another appointment or transfer to another establishment even on a lower pay, if offered, and continuing to! Count his previous service for pension."
14. ' Obviously no such option was taken from the appellant nor was he informed that his previous service would not counted towards seniority in the new Secretariat cadre.
15. ' As regards the amended rule 9-A, the same was added on 1st February 1978, when the appellant was absorbed in the Secretariat on 1st December, 1973. The amended rule could not be made applicable to the case of the appellant retrospectively. His case cannot, therefore, be effected by the rules or circulars issued long after his appointment as Assistant in the Sind Secretariat.
16. ' It is true that the terms and conditions of service admissible to the appellant as employee in Khairpur State immediatly before the 10th day of August, 1955 justified his being given on equivalent post in the office of the Commissioner Khairpur Division and as held in PLD 1960 SC 45, the terms and conditions did not include any far-fetched matters as his prospective promotion to a higher service; but as held in the case Bashir Ahmad Khan v. Islamic Republic of Pakistan (1) ; every officer in a graded service has a vested right to a proper place in the seniority list". This is of the highest importance to the officer, as well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply involved in the maintenance of proper spirit of order and discipline within the service. It was held in similar cases of re-organization that the benefit of past services could not be denied to the officers concerned.
17. In Mohammad Saleem Sadiq v. Superintending Engineer Irrigation Punjab (2) it was held "the power to deny the benefit of seniority in accordance with paragraph I7(a) of the Integration Circular did not exist with the Setretary to Government of West Pakistan in the Irrigation and Power Department. Their seniority had to be determined in accordance with this paragraph, which entitles them to the benefit of past service rendered by them in the remodeling organization.
18. Multan Region was newly existed and the staff to serve in this Region was drawn from various offices. They were transferred in the public interest to the Multan Region and when such transfers take place in the public interest, Government servants entitled to count his past service under the Government from the date of his continuous appointment in the grade. This would be so even in case of re-3rganization". In 1973 PLC (C. S. T.) 26, it was held : re-organization and amalgamation cannot deprive Officers of benefit of past service. Officials of amalgamation offices should be given equal treatment on basis of continuous appointment in respective grades.
19. As a result of the above discussion, it is clear that the transfer of the appellant from Khairpur State to Commissioner's office and the {{FOOT NOTE}} 1) PLD 1960 SC 195 (2) 1974 PLC (C. S. T.) 11 {{FOOT NOTE}} ' Sind Secretariat were the result of re-organization and the appellant could not therefore be deprived of his seniority in the same grade on absorption in the Sind Secretariat. His service of 10 years as Assistant could not be wiped off on the ground that he was rendered surplus on abolition of Divisional Commissioner's office. No options had been given to the appellant which were considered necessary under rule 266 quoted above. The case of the officers similarly placed had already been decided by the Service Tribunal in the year 1976 and when the decision was implemented, the Government should have themselves taken further action to regularize seniority in all similar cases. As held by Cornelius, C. J. In case of Sultan Mahmood v. Government of West Pakistan (1) contentions litigations between Officers of established service should be avoided in public interest as it is damaging to discipline and proper working of the department. We accordingly allow the appeal and declare that the case of the appellant is identical to that of Messrs Aftab Ahmad Siddiqui and Makhdoom Muhammad Siddiq and the seniority of the appellant in the grade may be determined in similar manner, after counting his previous terms of officiation on regular basis in the same grade. No order is made as to costs. {{FOOT NOTE}}
(1) PLD 1964 SC 302 {{FOOT NOTE}}