1. MUSHTAK ALI KAZI (CHAIRMAN).- By this appeal under section 4 of the Sind Service Tribunals Act, 1973 the appellant, an Assistant Professor, Grade-18, has claimed seniority over respondent, Mr. Zafar Hussain an other Assistant Professor, Grade-18 under the following circumstances:- Respondent Zafar Hussain Khan was promoted as Assistant Professor, Grade-18 superseding the appellant under the mistaken belief that Mr. Zafar Hussain was the senior most amongst the Lecturers in the Government Colleges of Education, Karachi/Sukkur, possessing the qualifications of M. A., M. Ed. Alongwith certificate for specialized training in U. K.Such summary had been put up by the Secretary, Education to the Chief Minister for promotion of Mr. War Hussain Khan. The name of Mr. Intizar Hussain, the appellant was not mentioned in the summary for con--sideration, nor was his case considered by the Promotion /Selection Com--mittee who had sent the proposal. This mistake about seniority appears to have crept in when the recommendations were made by Principal, Government College for Education, Mrs. Birjis Khan, on the basis of type(; seniority list, showing the date of appointment of Mr. War Hussain Khan as Lecturer, on 17-8-1970 and date of Mr. Intizar Hussain's appointment as Lecturer, on 15-4-1971. Later on the typing error was detected and it was found that Mr. Intizar Hussain was appointed as Lecturer on 15-4-1970 and he was senior to Mr. Zafar Hussain Khan.
2. Regarding qualifications the appellant admittedly possessed the prescribed qualifications of M. A., M. Ed. And being senior to Mr. Zafar Hussain Khan, it would have been proper if his case too had been put up for consideration before the Selection Board and included in the summary put up to the Chief Minister.
3. It has been argued by Mr. Manzoor Ali Khan on behalf of the appellant that the case of the appellant is entirely different from that of the other 21 Lecturers, who may not be having the prescribed qualifications for the post of Assistant Professors in the Government College of Education, .At that time, the appellant had the prescribed qualifications and was senior to respondent Zafar Hussain but he was not considered -for promotion on account of a mistake or misapprehension regarding his seniority as Lecturer and also regarding his qualifications. If the appellant had been considered and rejected by the Selection Board and a summary giving correct facts had been put up for orders to the Chief Minister, the appellant would not have agitated his claim any further as the promotion on the ground of seniority-cum-fitness was within the discretion of the Department. In this case, however, the appellant had suffered because of the mistake regarding date of appointment and qualifi--cations and he was not even considered for the promotion at the, time of selection ofMr. Zafar Hussain.
4. Mr. Haseen Akbar, A. A.-G. Has frankly conceded that the case of the appellant would fall under rule 13 (i) and (iv) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, because the provisional seniority list of Lecturers was still under preparation at that time. Under rule 13 (a) civil servant not promoted on his turn on the ground that his seniority had not been determined or not considered for promotion, for any reason other than his fitness for promotion, shall on subsequent promotion, for the purpose of inter se seniority, be deemed to have been promoted in the same batch as his junior. Since the appellant too was not considered for promotion, due to his seniority not having been determined or for the reason of mistaken belief regarding his seniority and qualifications, he would be entitled on his subsequent promotion, to be deemed to have been promoted on the same date as his junior Mr. Zafar Hussain, i.e., on 17-1-1976. Under rule 11 of the aforesaid Rules inter se seniority would then be determined on the basis of inter se seniority in the lower grade of Lecturers. The appellant being senior to Mr. Zafar Hussain as Lecturer would also rank senior as Assistant Professor.
5. Mr. Muhammad Ali Jan appearing on behalf of Mr. Zafar Hussain has raised the objection that the present service appeal is barred by limitation, as the departmental appeal of Mr. Intizar Hussain was decided on 23rd December. 1980 and the appellant should have filed the service appeal before the Tribunal within 30 days before 23rd January, 1981. But he actually filed the appeal on 16- 7-1981. In reply to this contention Mr. Manzoor Ali Khan has argued that for the purpose of limitation the relevant date according to section 4 of the Sind Service Tribunals Act would be not the date of passing of the order but the date of `communication' of such order to the appellant. The departmental file does not show when the original order of dismissal of departmental appeal, had been served on the appellant. The copy of the order is said to have been sent to the appellant by registered post on 23rd December, 1980. But there is no acknowledgement or even the receipt with the Department. The outward register shows despatch of this letter after fixing 40 paisas stamp which entry has subsequently been scored of and the word registered has been overwritten. Under these circum--stances it would not be safe to act on the presumption that the letter shown to have been posted, must have reached the addressee. The 'departmental file contains letter, dated 10-6- 1981 addressed by Mr. Intizar Hussain to the Director of College Education, that decision of his case be communicated to him. In response to this letter a photostat, copy of the order was delivered to the appellant by the Principal, Government College of Education on 25-6-1981. The service appeal was then filed on 16-7-1981, within 30 days of the communication of the order. The appeal, therefore, appears to be within time.