1. MUNAWAR ALI KHAN (CHAIRMAN).--Under the instructions of the Chief Secretary, Government of Sind--- Mr. Abdul Ghafoor Mangi, Assistant Advocate-General, Sind has submitted a statement in writing mentioning therein that as the appellant has been promoted to BS-20 on regular basis vide Notification No. S.O. I.(S&GAD)-3/81/75, dated 20-11-1986 his appeal has become infructuous. The appellant as well as the learned counsel for respondent Abdul Aziz Ashrafi were heard not only with regard to the implications of the learned A.-A.G.'s statement but also on merits of the case.
2. For the purpose of appreciating the arguments of the parties it would be useful to reproduce the appellant's prayer as contained in the memo. Of appeal. It reads as under:- "In view of the facts and circumstances as mentioned above it is prayed that the impugned order contained in the Government of Sind S&GAD's Notification No. SO-V (S&GAD)-1-6/73 dated 19th February, 1977 be cancelled and the Seniority List of former PCS (E.B) officers of Hyderabad and Khairpur Divisions, compiled and published by S&GAD, West Pakistan in 1970 be declared skid treated as the only valid and legally operative Seniority List of former P.C.S. Officers or any other relief conceding the appellant his due and rightful position in the seniority via-a-via his other colleagues, as determined by the former West Pakistan Government in 1970 may be granted to him."
3. It appears that the appellant being unsatisfied with the seniority list of 1977 has sought for its cancellation. He has further prayed for restoration of the seniority list of 1970. On comparing of these lists, it is found that all the private respondents at Serial Nos. 2 to 16 in the memo. Of appeal who were shown junior to the appellant in the seniority list of 1970, have been placed above him in the seniority list of 1977. The appellant's argument was that the impugned list of 1977 was compiled on the basis of seniority list of Mukhtiarkars of 1975 which was however held as defective by the Sind Service Tribunal in the case of M.A. Shaikh v. Government of Sind (Appeal No. 19 of 1976). He further submitted that select lists of Mukhtiarkars which were also kept in. View while preparing the 1977 seniority list were not correctly drawn up. According to the appellant even the rationale laid down for preparing the impugned seniority list was not strictly followed. It also appeared from the appellant's arguments that his real grievance was that his promotion was unduly delayed owing to erroneous assignment of seniority position to him vis-a-vis the private respondents and consequently he sustained a huge monetary loss.
4. Although the appeal was originally directed against all the private respondents mentioned therein as the appellant claimed to be senior to them, yet by his statement dated 25-9-1986 he dropped respondents Nos. 2, 4, 6, 7, 8, 10, 11, 12, 13, 14, 15 and 16 as some of them had died and the others had retired from service. Even otherwise the case against these respondents became infructuous following their exit from service as no order could be enforced against them with regard to their seniority in relation to the seniority of the appellant. With the exclusion of the said respondents, only three respondents namely Mr. Makhdoom Ali (S.No.3), Mr. Abdul Aziz Ashrafi (S.No.5), and Mr. Ghulam Hyder Abbasi (S.Ho.9) were left in the field to contest the appellant's claim. From them even Mr. Makhdoom Ali retired in the last month of November and the appeal became infructuous against him.
5. As for the remaining two respondents, it is an admitted position that like the appellant, they were holding BS-19 posts, when the appellant was recently promoted to BS-20 by order dated 20-11- 1986. Obviously the said respondents were ignored, even though they were shown senior to the appellant in the impugned seniority list. In this connection out attention has been drawn to the new seniority list of the P.C.S. Officers (Assistant Commissioners) which has been recently published vide Government Notification No. SOV (S&GAD)-11-V/86 dated 16th April, 1986. In this seniority list the name of appellant appears at Serial No.7 whereas, the respondents Mr. Abdul Aziz Ashrafi and Mr. Ghulam Hyder Abbasi are shown at Serial Nos. 12 and 18 respectively. The new seniority position assigned to the appellant has also been acted upon inasmuch as that the appellant has been promoted to BS-20 in preference to the above two respondents, though they were shown senior to him in the impugned list of 1977. In this way the grievance of the appellant that he is senior to above two respondents has been redressed. It is true that this seniority list is only provisional and it is yet to be finalized. As has been mentioned by the learned Assistant Advocate-General in his statement referred to above the said provisional list is likely to be finalised in the present shape. His statement finds support also from the preamble of the said provisional seniority list which clearly shows that the impugned seniority list has been discarded and the new seniority list has been compiled in the light of the judgment of the Sind Service Tribunal delivered in the appeals filed by the appellant and three other officers namely Taj Muhammad Qureshi, Muhammad Hashim Memon and Altaf Hussain Qadri. We are of the view that the provisional seniority list which has been prepared in compliance with the judgment of the Service Tribunal will in all probability be finalized in the same shape.
6. Apart from above, we have been informed that appellant is due to retire w.e.f. 15-12-1986. As pointed out by the learned A.A.-G. In his statement, it will take 2-3 months to finalize the provisional list.
7. Thus by the time it is finalized, the appellant will be no more in service. Consequent upon his retirement most probably his name will not appear in the final list. Even if it is retained and his seniority position is changed to his detriment in the final list, such change will be of no consequence because it would not be enforceable, so far the appellant is concerned.
8. Coming to the appellant's grievance about his delayed promotion, it is an admitted position that he was promoted to BS-17 in 1965. However, his prayer is for restoration of the seniority list of 1970.
9. Even if that list is restored the date of his promotion which obviously took place before coming into force of the said list will remain unaltered. We fail to understand how the restoration of 1970 list will enable him to have the date of his promotion advanced. Moreover seniority alone is not the criterion for promotion. It is made on the basis of seniority-cum-fitness. The appellant was Mukhtiarkar when he was promoted to BS-17. It is not the appellant's case that in the seniority list of Mukhtiarkars his juniors are shown senior to him. The Mukhtiarkars' seniority list of 1975 with which the appellant was not satisfied has already been withdrawn in the were of the decision of the Service Tribunal. Despite this if the Mukhtiarkars junior to him were promoted earlier than his promotion to BS-17, the presumption would be that they were preferred for promotion on the ground of fitness. In any case the Tribunal has no jurisdiction to go into the question of relative fitness of the appellant for promotion. Unless we hold the appellant fit for promotion from particular date i.e. The date earlier than the date of promotion of his juniors we cannot order for alteration of the date of his promotion. As stated above we do not have this power. But that is also not the appellant's prayer. However, we have, noticed that in the recent provisional seniority list the appellant has been recognized as senior to above two respondents. It is for the concerned authorities to consider if in view of the change in his seniority position the appellant can be allowed pro forma promotion in the lower grade posts from the dates earlier than the dates of promotion of the said two respondents to such posts.
10. M.Y.H./100/Lb/S