1. MUNAWAR ALI KHAN (CHAIRMAN).--In this appeal the appellant Allah Ditta, who is a Stenographer in the Industries Department, Government of Sind, has made a prayer that the order dated 22-12- 1985 passed by Secretary, Industries and Mineral Development Department, Government of Sind, Karachi and communicated to him by letter dated 10-2-1986 be set aside with a direction to the Chief Secretary, Government of Sind to prepare common seniority list of the appellant (Stenographers) and Assistants, placing his name above the names of respondents Muhammad Murad, Assistant (now officiating as Superintendent) and Ali Muhammad Channa, Assistant, in such seniority list.
2. The appellant's case as stated in his memo of appeal is that he entered Government service as Stenotypist in 1969 vide his appointment order dated 11-4-1969 and was promoted to the post of Stenographer on 3-9-1970. Both his appointments as Stenotypist and subsequent promotion to the post of Stenographer were made under West Pakistan, Industries Department, Ministerial Service (Regional) Rules, 1965 (hereinafter referred to as 1965 Rules). Under the said rules common seniority list of Stenographers and Assistants for the purpose of promotion to the post of Superintendent was to be maintained. However, tentative seniority list issued on 11-1-1977 was not the combined seniority list of Stenographers and Assistants. Therefore, the appellant made representation against the said seniority list on 19-1-1977 and kept reminding the authorities for a decision until another tentative seniority list dated 12-11-1984 was issued which, too, was not common seniority list of the Stenographers/ Assistants. Once again the appellant filed objections against the second seniority list on the very date of its appearance.
3. His objections were examined in the Directorate of Industries and it was decided that the appellant would be shown separately from the Assistants in the combined seniority list. Subsequently, Government's decision dated 22-12-1985 was also communicated to the appellant by the Deputy Director, Industries, Hyderabad Region, vide his letter dated 10-2-1986. By that decision, too, he was informed that since Stenographers and Assistants are two distinct cadres, their joint seniority list could not be made. In support of the decision reference was made to Rule 9 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975. The appellant preferred departmental appeal and after waiting for usual period of 90 days, he filed the present appeal before this Tribunal.
4. We heard the arguments of the learned counsel for both parties and with their help scanned', through the relevant record.
5. The main argument of the learned counsel for the appellant was that when the appellant joined Government service, 1965 Rules held the field. He submitted that as provided in the appendix of these rules promotion to the post of Superintendent was to be made from amongst the Stenographers and the Assistants of the region in which promotional post had occurred and for this purpose combined seniority list of the Stenographers and Assistants of that region had to be prepared. The contention of the learned counsel was that the appellant continued to be governed by 1965-Rules and as such for the purpose of his promotion to the post of Superintendent, it was not only necessary for the authorities to prepare combined seniority list of the Stenographers and Assistants but also place the appellant in such seniority list above two assistants namely respondents Muhammad Murad and Ali Muhammad. In support of his arguments the learned counsel for the appellant also placed reliance on the precedent case reported as Inspector- General of Police Punjab, Lahore and other v. Mushtaq Ahmed Warraich and others PLD 1985 SC 159.
6. It is true that 1965 Rules were in force when the appellant was appointed as Stenotypist and subsequently, promoted as Stenographer. Under the said rules post of Superintendent was to be filled by promotion from amongst the Stenographers and Assistants of the region concerned for which their combined seniority list had to be prepared. However, it is not the case of the appellant that as required by the 1965-Rules any combined seniority list was ever prepared nor is his case that he was not assigned correct position in such list. On the contrary the two lists referred to by the appellant one issued on 11-1-1977 and second issued 'on 12-11-1984 were admittedly not the combined seniority lists of the Stenographers and Assistants prepared in accordance with 1965 Rules. These lists reflect the inter se seniority of members of each grade of the ministerial staff of the Industries Department separately. Of course the appellant made representations against both these lists. However, the appellant failed to point out any combined seniority list of Stenographers and Assistants ever prepared under 1965-Rules and, therefore, his grievance that he had not been assigned correct position in such list would not arise.
7. The next question that requires our answer is whether the appellant continued to be governed by 1965-Rules and if no whether his seniority was to be determined in terms of the said rules. No doubt these rules continued in force by virtue of Article 241 of the 1973 Constitution until enactment of a law by appropriate Legislature under Article 240 of the said Constitution. The requisite law under Article 240 was actually passed by the Provincial Legislature, which came into force as Sind Civil Servant Act 1973. As provided in subsection (1) of section 26 of this Act, rule-making power was conferred on Government or any person authorised by it. Until such rules were made, the rules already in existence were to continue by force of subsection (2) of the above section, provided that they were not inconsistant with the provisions of the said Act. It would appear that in pursuance of section 26, referred to above, Government of Sind made rules relating to probation, confirmation and seniority of Civil Servants and notified the same under the nomenclature of Sind Civil Servants (Probation, Confirmation and Seniority), Rules' 1975 on 2nd October, 1975. Thus 1965 Rules, stood superseded by 1975 Rules in respect of matters covered by probation, confirmation and seniority of civil servants.
8. It may be pertinent to refer to Rule 9(1) of 1975 Rules, which reads as under:- "In each grade in a department, there shall be a separate seniority list of a group of civil servants doing similar duties, and performing similar functions and for whose appointment same qualifications and experience have been laid down."
9. It is clear from the above rule that in view of the criteria laid down there in for preparing seniority list, Stenographers and Assistants would fall in two distinct categories and, therefore, separate seniority list is to be prepared for the civil servants included in each of these categories. This being the legal position, appellant's seniority will be determined in the category of Stenographers.
10. Consequently, his claim that his seniority of Stenographer be fixed in relation to seniority of Assistants for the purpose of promotion to post of Superintendent,' is untenable. Moreover, the determination of his seniority should note be confused with his prospect of promotion to the post of Superintendent. These are two separate issues. Promotion to the post of Superintendent is dependant on the mechanism laid down by the Government. True as per 1965-Rules the post of Superintendent was to be filled by promotion from amongst the Stenographers and Assistants for which their combined seniority list was to be maintained. Now that separate seniority list are made and maintained for these two categories of civil servants, it has to be decided as to how the vacancy in the post of Superintendent has to be filled. Precisely for this reason the Government, while conveying its views as to preparation of separate seniority lists for each cadre of Civil Servants in their letter dated 22-12-1985 (the impugned order for the appellant) celled for the proposal as to the method of recruitment to the pout of Superintendent. For deciding about the method of filing the pest of Superintendent, resort would be made to the Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974. As provided in Sub-rule (2) of Rule 3 of these rules, method of appointment and the qualifications and conditions applicable to a post shall be laid down by the Department concerned in consultation with the Service and General Administration Department. This could be done by issuing a notification under the said sub-rule. It appears that the S&GAD had already called for the proposal of the industries Department for the method of recruitment to the post of the Superintendent. By the time any vacancy occurred in the post of Superintendent, the necessary decision was bound to be taken as to the mode for filing such vacancy. Unless the method of filing the post of Superintendent under the above new rules entitles the appellant to be considered for promotion to that post, he cannot base his claim for promotion under the 1965-Rules which as has been pointed out above, are no longer in existence.
11. The case of Mushtaq Ahmed Warraich, relied upon by the learned counsel for the appellant is of no help to him as the facts of that case and those of the present case are distinguishable. All that the honourable Supreme Court has brought out in the reported case is the difference between Civil Servants Act 1973 which is a General Law and Police Act 1961 which is a Special Law and their applicability to the police personnel. We are unable to agree with the learned counsel that by force of the reasoning given by the Supreme Court in the reported case, the 1965 Rules fall in the category of Special Law and would, therefore, continue to apply to ministerial staff of the Industries Department regardless of the enactment of Sind Civil Servants Act 1973 and the rules framed thereunder. If this argument were accepted, the new law and rules that came into force in the were of the Constitution of 1973 would become redundant, because before they became operative every Government Department like Industries Department had its own set of rules. We are, therefore, of the view that above Supreme Court authority does not apply in the present case.
12. For above reasons, there is no substance in the appeal which is accordingly dismissed with no order as to costs.
13. A.E./109/Sr./S