1. ' MUSHTAK ALI KAZI (CHAIRMAN).--This appeal arises out of a disputed claim to seniority inter se, between the appellant and respondent No,2 in the cadre of Executive Engineers Grade-18.
2. ' The appellant joined Irrigation Department Government of Sind as Supervisor in the year 1950. He was promoted as Executive Engineer Class-I1 on 20-7-1961. On 20-3-1967 the West Pakistan Irrigation Engineers Service (Class-I) Rules, 1967 were promulgated and West Pakistan Irrigation Engineers Service Class-I was constituted. Eighty per cent of the posts were to be filled by promotion from Class-II Officers while the remaining twenty per cent were to be filled by initial recruitment. The inter se seniority of the members of the service was to be determined by their length of service as Executive Engineers from the date of continuous officiation as Executive Engineers Class-II. Excepting occasional promotion of a few Class-II Officers to West Pakistan Irrigation Engineers Service Class the rules remained unimplemented. Meanwhile respondent Muhammad Alam Baloch was appointed temporary Engineer on 11-2-1963 and then Assistant Executive Engineer in Junior Class-I on 21-10-1969 on probation for two years. Before he had completed the period of probation and only after 19 days of his appointment as Assistant Executive Engineer he was promoted as Executive Engineer (Class-I) on 9-11-1969. It is the case of the appellant that while respondent Muhammad Alam Baloch was getting accelerated promotions in violation of the procedure and practice, the Government was delaying implementation of the 1967 rules, by avoiding to issue formal orders upgrading eighty per cent strength of the Executive Engineers (Class-II) in the new service cadre, the reason being that respondent Muhammad Alam Baloch happened to be son of the then Secretary Irrigation West Pakistan Mr. S.K.Baloch. Under the new rule the seniority of Mr. Muhammad Alam Baloch in the new cadre was being affected as he had risen rapidly with hardly any length of service. In reply to these allegations of the appellant, the Government respondent No,1 have adopted the following written statement filed by them in the connected appeal No,6 of 1984:- "The appellant (Muhammad Alam Baloch respondent No,2) was appointed as Assistant Executive Engineer (Class-I) junior scale on 21-10-1969. He was promoted as Executive Engineer on 9-11-1960.
3. Subsequently he was confirmed as Executive Engineer on 1-4-1979. It would be pertinent to point out here that although the appellant had been appointed as Assistant Executive Engineer and placed on probation for two years with effect from 21-10-1969, he was promoted to the next higher post of Executive Engineer within the matter of 19 days and was subsequently confirmed as Executive Engineer with effect from 1-9-1970 without being first confirmed in the post of Assistant Executive Engineer and without completing the period of probation fixed for that post. Both the promotion and confirmation of the appellant (respondent Muhammad Alam Baloch) as Executive Engineer appear to be irregular."
4. ' Ultimately the rules which came into force from 20-3-1967 were implemented and the appellant alongwith all other Executive Engineers in Sind were absorbed in the Irrigation Engineers Class-I Service with effect from 28-3-1972. After the appellant was absorbed in Class-I service his seniority in this cadre was to be determined under rule 15(2) of the said rules and his entire length of service from date of continuous officiation as Executive Engineer Class-II was to be counted towards seniority. The relevant rule 15(2) is as under:- "R-15(2)--Notwithstanding any thing contained is sub-rule (1), the seniority of Class-II Officers and temporary Engineers recruited to or absorbed in the service, who were holding the post of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiating as such: Provided that if in any particular case, Government is of the opinion that the application of this sub-rule causes or will cause hardship to one or more members of the service, the Government may, in consultation with the Commission, assign to the person concerned such seniority as it considers equitable."
5. ' Applying the above rule, the length of service of the appellant will have to be counted from 20-7- 1961 the date from which he had continuously officiated as Executive Engineer Class-II. The respondent became Executive Engineer on 9-11-1969 and his length of service as Executive Engineer is, therefore, less than that of the appellant. All this has happened because under the new Rules of 1967, all Executive Engineers are brought in one class and the distinction of classes has been abolished. All of them are Grade-19 Officers. However, the seniority list of the Executive Engineers in Grade-18 in the Irrigation and Power Department was circulated for the first time in October, 1979. In this list the dates of continuous appointment of first three officers in Grade-18 were shown as under:- {{TABLE TEXT}}
(1) Muhammad Aslam Baloch. 9-11-1969.
(2) Mr. Nazir Ahmad Siddiqui. 28-5-1958.
(3) Mr. Muhammad Shafi Junejo. 20-7-1961.
6. Considering the length of service as Executive Engineer under rule 15(2), the order of seniority of these officers depending on the continuous length of service as Executive Engineers irrespective of the Class should have been (1) Mr.Nazir Ahmad Siddiqui 28-5-1958, (2) Mr. Muhammad Shafi Junejo 20-7-1961 and Mr. Muhamad Alam Baloch 9-11-1969. If there were others who were continuously officiating prior to any of these officers they would be placed in the order of seniority according to their respective dates of continuous officiation as Executive Engineers, irrespective of the class or confirmation.
7. ' It has been argued on behalf of respondent Muhammad Alam Baloch that he had been confirmed as Executive Engineer in senior Class-I, long before the appellant was promoted as Executive Engineer Class-I in the new cadre constituted under 1967 Rules. It may, however, be pointed out that even according to the circular issued by the department earlier, confirmation of an officer would not affect the seniority of a senior officer confirmed later. The seniority lists were to be drawn on the basis of dates of continuous regular appointments as Executive Engineers and not according to the dates of confirmation. The nomenclature of classes of service has since been abolished in 1974, on promulgation of Sind Civil Servants (charge in Nomenclature of Service and Abolition of Classes) Rules, 1974. The appellant was brought on par with all other Executive Engineers. It is admitted by the Government in W.S. Filed in Appeal No,6 of 1984 that seniority list became liable for revision, as the appellant could count seniority as Executive Engineer from the date of his promotion as such, irrespective of class. There is no ground any longer for denying the appellant the due seniority as an Executive Engineer, Grade-18 in accordance with rule 15(2) of the West Pakistan Irrigation Engineers Service Rules, 1967. These rules came into force, long before Mr. Muhammad Alam Baloch entered service as Executive Engineer Class-I on 9-11-1969.
8. ' It may also be pointed out that appellant Muhammad Shafi is an Officer senior in age and according to his statement he has only three years service left before he reaches the age of superannuation. On the other hand, respondent Muhammad Alam Baloch has been getting rapid promotions even in violation of the prevailing rules and practice and his promotion as Executive Engineer, Class-I and his confirmation has been regarded as irregular. He is in his early forties and has still sufficient period of service before he reaches the date of superannuation. Under these circumstances it cannot be said that assignment of due seniority to the appellant in Grade-18 would cause hardship to respondent Muhammad Alam Baloch, nor would assignment of due place to the appellant be considered to be unjust or inequitable.
9. The appeal is accordingly allowed and it is directed that in accordance with the 1967 rules still in force, the appellant be placed senior to respondent No,2 in the seniority list in accordance with their respective dates of appointment as Executive Engineers officiating or otherwise and irrespective of class distinction. The seniority list dated 5th October, 1979 may be revised accordingly. Parties will bear their own costs.