1. ' S. A. NUSR AT, J.-This appeal by special leave is from the judgment and order, dated 3-1-1983 of the Sind Service Tribunal, Karachi, which was passed in the background of the following facts :- ' The appellant had been serving as Assistant Traffic Manager in NPS-16 in Sind Road Transport Corporation ever since 1974. He was declared surplus in the wake of retrenchment and fell out of job on 7-8.1977. He made a representation to the Chief Secretary to the Government of Sind on 25- 10-1978 requesting that since number of vacancies were available in certain Departments of the Government he may be considered for appointment and absorbed in service in any Department as provided in rule 9-A of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.
2. The application was accepted and the following order was passed by the Chief Secretary on 8-7- 1979. "the services of Mr. Rafique Ahmad Agha, Surplus Assistant Traffic Manager (Grade-16), Sind Road Transport Corporation are placed at the disposal of Secretary Food Department, Government of Sind, for absorbing him in accordance with the instructions contained in this Department's circular letter No, E & A (S&GAD) 1 (68)/78 dated 12th August, 1978, against the available vacancy of Ward Rationing Officer."
3. ' The circular letter referred to in the above order was issued by the Government regarding absorption of surplus staff in various Department against existing vacancies of equivalent or comparable grade on the basis of rule 9-A of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (hereinafter referred to as the said rules) which was introduced in the Rules through an amendment by a notification No, SOIX-REG (S&GAD) 2/D/1-74-Pt. H (Vol. III), dated 1-2- 1978. The appellant was, however, instead of being given the job of Ward Rationing Officer, directed to be absorbed as Food Grain Inspector in Grade-6 N P S at the minimum of scale of Rs, 315-12- 399/14-525 against existing vacancy in Karachi Food Region, as per order dated 24-9-1979 passed by the Secretary Food Department. The appellant was still not provided with any job and was informed by the Deputy Director, Food, Karachi Region. That there existed no vacancies of Food Grain Inspector in his region and he will be absorbed in the said post as soon as any vacancy occurred in the Department. The Secretary, Food Department, later ordered on 19-1-1980 for the absorption of the appellant as Food Grain Inspector in grade-6 against an existing vacancy in Sukkur Food Region. In pursuance of the said order, the appellant was appointed as Food Inspector in Grade-6 at the minimum of scale Rs, 315-12, 399/14-525 as per office order dated 21-1-1980 issued by the Deputy Director Food, Sukkur Region, Sukkur and was posted under the District Food Controller, Khairpur.
4. ' The appellant on 30-1.1980 perferred an appeal to the Chief Secretary, Government of Sind, against the order of the Secretary, Food Department, dated 19-1-1980. In the said appeal it was pointed out by the appellant that the question of fulfilment of requirement of rule 9-A had been finally determined in his case by the Government of Sind and the implementation of the order dated 8-7-1979 passed in his favour was possible since certain vacancies of Ward Rationing Officer and Assistant Food Controller were available in the Department of Food. The appeal bore no fruit and the decision of the Government, that the appeal had been filed, was communicated to the appellant by the Deputy Director Food, Sukkur, Region, Sukkur as per his letter, dated 12-11-1981.
5. ' The appellant thereupon filed an appeal before the Sind Service Tribunal praying that the order of his absorption as Food Grain Inspector in Grade-6 may be set aside and the first respondent be directed for his absorption in Government service in accordance with rule 9-A. The said appeal was dismissed by the Service Tribunal on 3,1,1983.
6. As the question involved in the case, inter alia related to the interpretation of clause (ii) of rule 9-A of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, leave to appeal was granted by this Court on 1-3-1983.
7. ' It was contended by the learned counsel for the appellant that the order dated 8-7-1979 regarding absorption of appellant into service against the available vacancy of Ward Rationing Officer has been passed by the Chief Secretary to the Government of Sind on the basis of rule 9-A and the instructions regarding its implementation contained in the Department circular letter No, E & A (S&GAD)1/(88)/78E2, dated 12-8-1978 and as such the said order was liable to be implemented in letter and spirit. The Service Tribunal, it was pointed out by the learned counsel, had taken notice of the fact that the order of absorption of the appellant was passed by the Chief Secretary under the rule 9-A but by erroneous interpretation of the rule it was held that the Government was not bound to aosorb the appellant in a post of equivalent grade. The relevant Rule '-A reads as under : "9-A. 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 admit nitration of such autonomous body wholly or partially by the Government, may be appointed to any post in any Department office of the Government : provided that -
(i) such person possesses such qualifications as are laid down under rule 3 (2), for appointment to such post ;
(ii) such person shall be appointed to a post of equivalent or comparable grade and if such post is not available, then to a post of lower grade : ' It was contended by the learned counsel that if in terms of clause (ii) of rule 9-A a post of equivalent or comparable grade was not available then the appellant was entitled to be appointed to the next post of lower grade and not to a post howsoever low.
8. The above Rule, which was inserted in the said Rules by a Notification dated 1-2-1978, was specifically designed to provide job to a person who had been rendered surplus on account of abolition of a post, for no fault of his, which he held in any office or Department of the Government, and is of enabling and overriding nature as it is to be given effect to "notwithstanding anything contained in these rules." For the purpose of implementation of the Rule, the Government of Sind, Services and General Administration Department, issued circular No, E&A (S&GAD,-1(88)/78E2, dated 12-8-1978 on the subject of "absorption of surplus staff/ban on recruitment." Paragraphs 2 and 4 of the circular, which are relevant, are reproduced hereunder :- "(2) ... That no recruitment/promotions may be made against any vacancy and the ban already imposed may be treated effectively operative till it is lifted by the Government and specific orders are issued in this regard.
(3) ..
(4) that instructions contained in the above circular should be followed in letter and spirit. Prior approval of the Services and General Administration. Department should invariably be had in case vacant posts are required to be filled in otherwise."
9. ' Turning now to the question of interpretation of clause (ii) of rule 9-A, we are inclined to agree with the learned counsel for the appellant that the wards "to a post of lower grade" occurring in the clause are not to be taken to mean a post of any grade howsoever low. The clause (ii) of the rule specifically lays down that a "person shall be appointed to a post of equivalent or comparable grade" and it is only when no such post is available then appointment "to a post of lower grade" is to be resorted to. If the intention was that in the absence of availability of a post of equivalent or comparable grade the person concerned shall be appointed to a post of any grade howsoever low, the sub-rule should have been worded to say "to a post of any lower grade".
10. ' Keeping in view the purpose lying behind the making of the rule and the language used therein, any other interpretation would result in giving unreasonably unfettered power to the implementing authorities who by offering a post of even the lowest grade may claim compliance of the Rule and the instructions contained in the circular letter dated 12-8-1978. This would be clearly defeating the directive contained in the circular letter in question which, as mentioned in paragraph 4 thereof, was required to be followed in letter and spirit. In order to ensure the compliance of the instructions contained in the circular letter it was specifically directed therein that no recruitment/promotion was to be made against any vacancy and the ban existing in this behalf was to continue and in case any appointment was to be made otherwise, the approval of the Services and General Administration Department was to be had first.
11. ' As regards the merits of the appellant's case, it appears that his appointment to a post of even next lower grade was not envisaged in the order of the Government, dated 8-7-1979 as he was ordered to be absorbed against "the available vacancy of Ward Rationing Officer."
12. ' Mr. Saeed A. Shaikh, learned Advocate-General for Sind, contended, though feebly, that since the appellant was rendered surplus in 1977 and the rule 9-A had come into force with effect from 1-2- 1978 the benefit of the rule could not be extended to the appellant. We asked the learned counsel whether such objection was raised before the Service Tribunal but he was unable to reply. On the contrary the judgment of the learned Service Tribunal shows that the entire case of the appellant was considered on the basis of the rule in question read with circular letter of the Services and General Administration Department, dated 12-8-1978. Even otherwise no such objection can be raised because the order of the Chief Secretary dated 8-7-1979 is itself based on rule 9-A and the instructions contained in the circular of the Services and General Administration Department dated 12-8-1978. It was lastly contended by the learned Advocate-General that there existed no vacancies of Ward Rationing Officer or of equivalent or comparable grade against which the appellant could be absorbed in the light of the order dated 8-7-1979. In reply to the above contention, the learned counsel for the appellant produced before us a copy of a Notification No, SOF (V) 2(240)/ 79, dated 24th August, 1983 issued by the Government of Sind which has been placed on record, showing that as many as for Assistant Food Controllers (Gr-8) were promoted to the post of Ward Rationing Officer (Grade-16) on regular basis. The order of appointment in favour of the appellant was made as far back as July, 1979 and it is unbelievable that no vacancy of Ward Rationing Officer or of a post of equivalent or comparable grade may have occurred since then.
13. Further as mentioned in the circular letter dated 12-8-1978 the ban on recruitment and promotions against vacancies was continued. In the circumstances, no justification has been shown for not implementing the order of the Government, dated 8-7-1979 whereby the appellant was straightaway appointed as Ward Rationing Officer against "the available vacancy," and in case there existed no vacancy in the said post, he was liable to be appointed to a post of equivalent or comparable grade and not to a post of grade-6 which is ten grade lower because his appointment to a lower grade post was clearly not envisaged in the order.
14. ' For the reasons mentioned above, we set aside the order of the learned Services Tribunal, dated 3-1-1983, accept the appeal and direct that the order of the Government of Sind, dated 8-7-1978 should be implemented forthwith as indicated above. There will, however, be no order as to costs.