1. ' MUSHTAK ALI KAZI (CHAIRMAN).-- The appellant, an Executive Engineer, has preferred this appeal to claim seniority in that cadre as against respondents 4 to 59 under the following circumstances:- ' The appellant joined Sind Irrigation Department on 27th January, 1955 as a Supervisor in Grade-16.
2. When the appellant was about to be promoted in S.S.B.II Cadre, Sind Province was marged in West Pakistan constituting one unit on 14-10-1955. The case of the appellant for promotion was referred to the West Pakistan Public Service Commission. However, he was cleared for promotion against pre-integration vacancies available from 13th October, 1955. The Government of West Pakistan then issued orders of promotion of the appellant but reserved the date of promotion to be determined later on. This order was, dated 21st March, 1970. Before the date of promotion could be determined M.L.R.114 was promulgated under which the appellant was compulsorily retired from service alongwith several other officers. Then came M.L.O.23, promulgated by C.M.L.A. Under which Review Boards were constituted to parawise such orders of compulsory retirement. The case of the appellant was also reviewed and by an order, dated 14-10-1978 passed by the competent authority the appellant was reinstated in service in Grade-17. The appellant then filed a departmental appeal claiming seniority in Grade-17. The appellant was allowed pre-integrated seniority and confirmed in Grade-17 with effect from 13-10-1955. Thereafter he was promoted as Executive Engineer in Grade 18 with effect from 15-5-1980. The seniority list of Grade 18 Officers was then notified on 25-8-1981 and the appellant was shown in that list at serial No, 61, i,e, junior to all the officers who were promoted during the interval the appellant remained out of service, having retired under M.L.R.
114. The appellant made a representation to the Chief Secretary for higher place in the seniority list for Grade-18, but he was informed that having been retired under M.L.R. 114 his claim for seniority over his juniors became extinct. The appellant had cited the case of one Mr. Ahmad Khan Bhurgari who had been allowed due to seniority, but the appellant was told that the case of Mr. Bhurgari was decided in 1968 when the Civil Servants Act and Seniority Rules were not in force. Against this order the appellant preferred departmental appeal and thereafter he filed constitutional petition in the High Court as the departmental appeal was not being decided. On the assurance of the Advocate- General that the appeal would be decided at an early date, the constitutional petition was withdrawn on 1-8-1982. By an order, dated 28-11-1982 the departmental appeal submitted by the appellant was rejected by M.L.A., Zone 'C' and the order was communicated to the appellant. The appellant then preferred this service appeal on 17-1-1983.
3. ' It has been argued by Mr. A.Q. Halepota on behalf of the appellant that the order of retirement of the appellant under M.L.R. 114 was found to be bad; he was accordingly reinstated in service. That ordinarily, he should have been restored all the benefits which would have accrued to him, had he not been so retired. Mr. Halepota has then referred to Martial Law Order No, 23 under which the appellant was reinstated in service. He has quoted the proviso, para. 5, that "any order passed on a petition including an order of reinstatement, shall not entitle the petitioner to any damages, compensation or arrears of emoluments or other benefits for the period he remained out of service". Mr. Halepota has pointed out that 'other benefits' is to be interpreted as being of the class to which the benefits enumerated relate, viz., monetary benefits only. That, therefore, the Martial Law Order 23 does not restrict the resultant benefits relating to promotion and seniority. On this point reference has been made to decision of Federal Service Tribunal in the case of Junejo Muhammad lqbal v. Government of Pakistan and 59 others 1982 PLC (C.S.) 784. The interpretation rule relating to ejusdem generis has been quoted from Maxwell that "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. That according to well-established rule. In the construction of statutes, general terms following particular ones apply to such persons or things as are edjusdem 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 clauses clearly not within the suggested genus". It was accordingly observed in the decision of the Federal Tribunal that seniority was clearly not within the suggested genus of any of the words like damages, compensation, arrears of emoluments or other benefits. . ' The case of Junejcr Muhammad Iqbal has, however, been dis-tinguished and it has been pointed out that there was departmental rule of promotion, that after remaining for 10 years as Income-tax Officer the person was to be promoted as Assistant Commissioner and his seniority inter se was to be the seniority in the batch as Income-tax Officer. That, on the other hand, the seniority in the provincial service is governed by rules prescribed under Civil Servants Act, 1973 and the Civil Servants Seniority Rules, 1975.
4. ' The learned A.A.-G., Mr. Hasan Akbar has first referred to the office memorandum issued on the subject by the Establishment Division, Cabinet Secretariat, dated 5th July, 1973, adopted by the Government of Sind, in respect of reinstated Government Servants under M.L.O.23. Under clause (d) of this memorandum it is provided that the reinstated 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. Under clause (e) a person 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. On promotion to higher grade they should be allowed pay and seniority from the date of their regular appointment to post in the higher grade. There will be no automatic promotion on the principle of "next below" rule. Thus the competent authority under M.L.O. 23 has issued this direction in respect of promotion and seniority of reinstated officers in the higher grade. The application of 'next below' rule in such cases has been discontinued and so also the automatic promotion on the basis of seniority in the lower grade. The ordinary rules of seniority are made applicable to those officers.
5. Under the Sind Civil Service Act, 1973, section 8(4) 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. Under the seniority Rules, section 13(4) a civil servant who is not promoted on his turn on the ground that he is not considered for promotion for any reason other than his unfitness for promotions, shall, on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter se seniority in the higher grade, be deemed to have been promoted in the same batch on his juniors.
6. Thus, even rule 13 of the Seniority Rules is subject to any order passed in that behalf by the competent authority. The competent authority while determining the question of seniority in the higher grads has prohibited the application of the principle of 'next below' rule, and allowed pay and seniority only from the date of the regular appointment of such officers to post in the higher grade.
7. ' Mr. Abdul Qadir Halepota has not been able to show why the directions contained in the memodrandum issued by the competent authority be not applied to case of reinstated officers on promotion. He has pointed out a notification of the Irrigation and Power Department, dated 27th June, 1970 in the nature of corrigendum that in the earlier notification, dated 24th February, 1976, the seniority in Grade-18 of all the officers shall be the same as in the lower grade. But that notification has application only to the case of officers promoted on 24th February, 1976 and it does not contain any directions of general nature.
8. ' Mr. Manzoor All Khan on behalf of the other respondents has argued that the appellant in effect claims notional promotion from earlier date on which he ought to have been promoted, had he not been retired. That the question of fitness for promotion cannot be considered by the Service Tribunal under section 4(b) of Sind Service Tribunals Act nor can the Tribunal determine the date on which such promotion should be deemed to have been made. However, in view of the above discussion it does not appear to be necessary to determine the question of jurisdiction of this Tribunal to consider the question of seniority in the promoted orders of any officer.
9. ' In the result the appeal is dismissed with no order as to costs.