1. ' MUSHTAK ALI KAZI (CHAIRMAN).-- The appellants, Superintending Engineers, Grade-19 were compulsorily retired under M.L.R. 114 on 13-3-1972 from their posts as Executive Engineers, Grade-18, They were afterwards re-instated as Executive Engineers under M.L.O. 23 on recommendation of the Review Board per order issued by the Government of Sind, S&GAD, dated 13th July, 1978. On promotion as Superintending Engineers they have been placed in the seniority list of Superintending Engineers below the Officers who had already been promoted to that grade prior to them, during the eight years they remained out of Office. They have claimed seniority over Officers who were junior to them as Executive Engineers, Grade-18 and have preferred these service appeals over the question of seniority in the cadre of Superintending Engineers to which they have been promoted. Since in both these appeals identical legal issues are involved they will be disposed of by this judgment.
2. ' Appellant Muhammad Alam Baloch was appointed as temporary Engineer with effect from 11-2- 1963. He was confirmed as Assistant Engineer, Class-II on 26-10-1966. He was then selected as Assistant Executive Engineer, Junior Class-I on 21-10-1969 and he was promoted as Executive Engineer on 9-11-1969 within 19 days of his initial appointment as Assistant Executive Engineer.
3. Subsequently, he was confirmed as Executive Engineer on 1-4-1970, though, he had not yet completed his two years period of probation as Assistant Executive Engineer with effect from 21-10- 1969. His phenomical rise in the department, however, received a blow when he was included in the list of compulsorily retired officers under M.L.R. 114 with effect from 13-3-1972. But on 13-7-1978 he was re-instated as Executive Engineer, Grade-18 and allowed due seniority in that grade. On 14-10- 1980 he was promoted as Superintending Engineer, Grade-19. But by that time respondents 2 to 20 who were junior to him in Grade-18, had already received promotion in Grade-19. They were, therefore, placed higher in the seniority list of Grade-19 according to their respective dates of promotion. The appellant filed a representation claiming seniority over them in Grade-19 on the basis of the order of seniority in Grade-18. He then filed his departmental appeal before the Governor but the same was rejected on the ground that the Officers re-instated under M.L.O. 23 were not allowed protection in seniority on promotion to higher grade.
4. ' Appellant Nazir Ahmed Siddiqui's case is also similar. He had joined service under the Government of Sind as Supervisor on 8-2-1952 and he was promoted as Assistant Engineer from 26-8-1954, and Executive Engineer from 28-5-1958. He was then compulsorily retired from service under M.L.R. 114 and after his case was reviewed he was re-instated in service under M.L.O. 23 with effect from 1-6- 1978. Meanwhile, respondents 3 to 21 who were junior to him as Executive Engineers had received promotions as Superintending Engineers during the intervening period that he remained out of service. He claims seniority over them in the promoted cadre of Superintending Engineers, Grade- 19 and he has also filed this service appeal on the question of seniority in the promoted cadre.
5. It has been argued by Mr. Jhamat on behalf of the appellants that an order of re-instatement would mean re-instatement with all the consequential benefits including seniority in the higher cadre to which a person is promoted after re-instatement. In this regard the learned counsel has quoted the meaning of 're-instatement' appearing in Blacks Law Dictionary, viz., "to re-instate: to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed". Re-instatement, however contemplates the state or position from which the person had been removed, but does not cover all the other consequence arising from compulsory retirement, i,e, even seniority in the grade to which a person is promoted after re- instatement. Mr. Jhamat has then argued that the relevant para. Of M.L.O. 23 under which the appellant was re-instated had presumably allowed the normal benefits arising from such re- instatement and the re-instated officer was not to be entitled only to the 'monetary benefits' for the period he remained out of service on the basis of the ejusdem generis rule.
6. ' Under Martial Law Order No,23, persons in Government service compulsorily removed from such service between 1st January, 1972 and '5th July, 1977, could submit a review petition to the competent authority, i,e, Martial Law Administrator of the Zone in case of Provincial Service, after he had withdrawn any petition pending in any Court or Service Tribunal. The petition was then to be considered by the Review Board appointed by the competent authority in this behalf. On the recommendations of the review Board the competent Authority could pass an appropriate order: "Provided that any order passed on a petition, including an order of re-instatement, shall not entitle the petitioner to any damages, compensation or arrears of emoluments or other benefits for the period he remained out of service".
7. ' It has been argued on the basis of the observations of Federal Service Tribunal, in the case of Junejo Muhammad Iqbal 1982 PLC (C.S.) 784, that the phrase "other benefits" was ejusdem generis with general words "damages, compensation or arrears of emoluments", and was, therefore, restricted to only monetry benefits. According to Black Law Distionary, ejusdem generis rule is, that where general words follows enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. The rule, however, does not necessarily require that general provision be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention. The doctrine has been explained by Maxwell as under:- "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; for according to a well-established rule in the construction of Satutes general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature. In other words general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended."
8. ' Thus the above rule of interpretation depends on the intention of the law makers and is to be read with reference to the context or the preamble. Unless the preceding words belong to a genus or class or category, there is no room for any application of the ejusdem generis doctrine. The restricted meaning need not be attached to the general words when there are adequate grounds to show that it has not been used in the limited order of ideas to which its predecessors belong.
9. This doctrine is by no means an absolute one if it can be seen from a wider perspective. The working of the whole statute may show that the general words following the particular words are to be construed generally. In the present case the condition precedent for re-instatement was that the pending petition before the High Court or Service Tribunal would be withdrawn. The order on the recommendation of the Review Board was entirely within the discretion of the competent authority. It can at the most be an order of re-instatement. The re-instatement contemplated the ordinary benefits of the state or position from which the person had been removed and not the farfetched benefits, like B seniority or rank in the cadre to which an officer was afterwards promoted.
10. ' The case of Muhammad Iqbal Junejo to which reference has been made is distinguishable as there was a departmental rule of promotion for Income-tax Officers that after lapse of 10 years, an Income-tax Officer was to be promoted automatically as Assistant Commissioner if he was not otherwise found unfit and his seniority inter se was to be the seniority in the batch of Income-tax Officers as originally recruited. The seniority and promotion in the Provincial Service are governed by the Civil Servants Act, 1973 and the Promotion and Seniority Rules made thereunder.
11. ' The learned A.A.-G. Has in this connection referred to the Office Memorandum issued on the subject by the Establishment Division, Cabinet Secretariat dated 5th July, 1978 and adopted by the Government of Sind in respect of re-instated Government Servants under M.L.O. 23, Under clause
(d) of this memorandum it is provided that the re-instated person may be allowed normal seniority in the grade in which they were serving at the time of retirement. In other words, the re- instated Officers would be placed in the same position in the grade from which they had been retired as if there had been no retirement. Under clause (e) a person re-instated in service may be considered for promotion on the basis of his seniority in the grade held by him in accordance with the normal rules. On promotion to higher grade such officers should be allowed pay and seniority from the date of his regular appointment to the 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 these directions in further clarification of the position regarding promotion and seniority of re-instated officers in the next 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 these Officers.
12. Under section 8 (4) of the Sind Civil Servants Act, 1973, 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 rule 13(iv) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, 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 promotion shall, on subsequent promotion, subject to an 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 as his juniors.
13. Thus, rule 13 (iv) of the Seniority Rules applicable in the Province of Sind is subject to an order passed by the competent authority on the question of the inter se seniority. The competent authority has in this behalf adopted the Memorandum of Establishment Division dated 5th July, 1978 that on promotion to higher grade they may 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. The adoption of this rule has been re-emphasised in the instructions of Government of Sind, S&GAD, dated 22nd May, 1980 in the following words:- "1 am directed to state that seniority of a Civil Servant re-instated under M.L.O. 23, after he has been promoted to the higher grade, will be fixed from the date of his regular promotion to that grade and any general orders in that behalf will not be applicable to the Officers re-instated under M.L.O.
14. 23 as they are governed by the Office Memorandum, dated 5th July, 1978. Clause (e) to para. 1 of it clearly lays down that on promotion to higher grade, they may be allowed pay and seniority from the date of their regular appointment to posts in higher grade.
15. ' I am, therefore, desired to request you to fix the seniority of a officers re-instated under M.L.O. 23 in accordance with the above instructions and in case it has already been fixed otherwise, such orders may please be rescinded immediately. Sd For Chief Secretary to Govt. Of Sind."
16. Thus on promotion the seniority of the re-instated Officers is to be governed by ordinary rules subject to any order made by the competent authority in this behalf. The order of the competent authority issued in this behalf is clear that the seniority is to be governed by Memorandum of the Establishment Division dated 5th July, 1978. Under this Memorandum the seniority is to be fixed from the date of their regular appointment to posts in the higher grade.
17. ' The discussion regarding the interpretation of phrase "other benefits" occurring in provision to para. 5 of M.L.O. 23 would only be of academic interest so far the question of inter se seniority in the next higher grade to which a re-instated Officer is promoted, is concerned.
18. It would not be correct to say that M.L.O. 23 has in effect annulled M.L.R.
114. That M.L.R. Has only been modified and restricted benefit has been allowed to some of the Officers whose cases were recommended by the Review Boards.
19. The result of the above discussion is that the seniority of the appellants determined by the Government in Grades-18 and 19 is in accordance with the directions of the competent authority on the subject as provided under the Civil Servants Act and Rules and the appellants are not entitled to any seniority over the respondent in Grade-19 on the basis of national promotion to Grade-19 from an earlier date when they would have been promoted had they not been retired. In any case the question of the appellant's fitness for promotion at such earlier date cannot be considered by the Service Tribunal in view of section 4 of Sind Service Tribunals Act, 1973. The appeals are accordingly dismissed with no order as to costs.