1. MUNAWAR ALI KHAN (CHAIRMAN).--By this common judgment we propose to dispose of two appeals namely Appeal No. 27 of 1983 filed by Muhammad Ayoob and Appeal No.30 of 1983 filed by Gohar Khan Awan, as common points of law and facts are involved in these appeals.
2. The appellants' case is that they were appointed as Deputy Directors, Rural Development Department in Grade-18 as direct recruits. According to appellant Gohar Khan, his appointment was made on 28-2-1974 whereas appellant Muhammad Ayoob claims to have been appointed on 4-4-1977. Their appointment was subsequently regularised by order, dated 30th December, 1978.
3. Consequent upon the reorganisation in the appellant's Department, a number of 18 Grade posts were abolished and the appellants were rendered surplus. This is reflected in two Government Notifications bearing same No. S.O. (A)RD/2/22/81/Pt-II, dated 24th and 26th October, 1982. By these notifications the appellants were also called upon to exercise their option within three days if they were willing to accept the posts of Grade-17, in the Local Government and Rural Development Department. The appellants were ultimately absorbed as Assistant Directors (Development) in Grade-17 in the Rural Development Department vide Government Notification No. S.O.(A)/RD/ 2- 22/81 (Pt.II), dated 11-11-1982. According to appellant Muhammad Ayoob although respondents 3 to 5 were junior to him, they were retained in Grade-18 posts while he was declared surplus. Similarly the grievance of appellant Gohar Khan is that the respondents 4 to 6 were junior to him and yet he was declared surplus for Grade-18 post. The appellants have obviously based their case on the assumption that in the were of the alleged reorganisation, both the Rural Development Department and the Local Government Department, departments were merged and common cadre of Grade- 18 Officers of these Departments was evolved. Consequently their plea is that they being senior to the aforesaid respondents in the consolidated cadre, they could not be declared surplus allowing at the same time the services of their juniors to remain intact. Aggrieved by the aforementioned notifications, the appellants preferred departmental appeal. Since no decision was made by the appellate authority within 90 days, they have approached the Tribunal with prayer that the impugned notifications may be set aside.
4. Both the appeals were heard together. The appellants and their counsel submitted their arguments. The A.A.-G. Also expressed his views on behalf of the respondents. After hearing the arguments at the bar the appeals were dismissed by short order, dated 27th August, 1986 for reasons to be recorded separately. Following are the reasons in support of the said short order.
5. It is not disputed that the appellants entered Government service as Deputy Directors Rural Development Department in Grade-18 as direct recruits. It is also not denied that their appointments were reviewed under M.L.O. 55 and after due clearance by the relevant reviewing authority their appointments were regularised. In this connection reference may be made to Government Notification No. RD/SO(A)/4-1-74, dated 30th December, 1978. However, as stated in the written statement filed on behalf of the official respondents the reorganisation took place only in the Rural Development Department, because with the establishment of Local Bodies, the development work came to be vested in the said Bodies. As per version of the official respondents necessary decisions were taken in the meeting held on 24th June, 1982 under the Chairmanship of the Governor and M.L.A. Zone 'C'. They have relied on the minutes of the said meeting in support of their version. Thus, the official stand taken in the appeals is that as reflected from the decisions of the above meeting Rural Development and Local Government Departments were never merged and, therefore, the question of drawing up consolidated seniority list of Officers of these Departments does not arise. It is further averred in the written statement that the appellants who belonged to the cadre of Rural Development Department could not claim seniority over the Officers belonging to the cadre of Local Government Department as both the Departments and their respective cadres are independent of each other. Accordingly the respondents' contention is that since private respondents are admittedly borne in the separate and independent cadre of the Local Government Department the appellants' seniority was not comparable with their seniority for the purpose of deciding about their being surplus in their cadre. held on 24-6-1982. This is not denied even by the appellants. As pointed out above the decisions taken in the said meeting are reflected in the minutes thereof. A copy of the minutes of the said meeting has been filed by the official respondents and is available on record. We have carefully perused the minutes of the meeting. It appears from the minutes that in the meeting held on 24-6- 1982 under the Chairmanship of the Governor and M.L.A. Zone 'C', following decisions were taken:-- "(a) At Divisional level the Local Government Wing will be headed by a Director, Local Government (Grade-18) and the Development Wing by a Director Development (Grade-18) who will be assisted by a Planning Officer (Grade-17).
(b) At the District level the Local Government Wing will be headed by Assistant Director, Local Government (Grade-17) and the Development Wing by an Assistant Director Development (Grade- 17) who will be assisted by District Planning Officer (Grade-16).
(c) At Taluka level there will be a Development Officer (Grade-16) and a Development Engineer (Grade-17). The former will be the Secretary Taluka Council and perform Local Government functions while the latter will be responsible for all technical work concerning preparation and execution of all development schemes of Union Councils and Town Committees. He will also provide assistance to District Councils for Taluka and Union level schemes.
(d) There will be (a total of) 506 officials of Local Government and Rural Development Deptt. At field level. The present organisation and arrangement will continue upto 31st October, 1982 and in the meantime the Department of Local Government and Rural Development should also put in its best efforts to see that the surplus staff is suitably absorbed in the local bodies. The Chief Secretary desired that the surplus officers should get preference when new posts created for 1982-83 are filled. Finance Secretary promised to issue suitable advice to consider absorption of surplus officers in Sind Councils Unified Grades and Local Councils.
(e) It was decided that in case retrenchment becomes inevitable, formula of last in, first out, would be followed."
6. It is clear from the above decisions that no decision of merger of the two Departments namely, Rural Development Department and Local Government Department was taken in the meeting. On the contrary it is shown in the decisions that both the Departments will maintain their separate identity as the officers drawn from each Department, will work side by side at each administrative level. It is not denied that the impugned notifications--one declaring the appellants' surplus and another absorbing them in Grade-17 were issued in the were of the decisions taken in the aforesaid meeting. Even otherwise the appellants have failed to show that any decision of merger was ever taken by the Government at any time. The learned counsel for the appellants was called upon to point out any document available on the record indicating that the merger of the above two departments had been ordered. The only document to which the learned counsel referred in support of his argument of the merger is the letter of Housing, Town Planning, Local Government and Rural Development Department (R.D. Wing) No. RDD/AW-RECON/82-83/2219, dated 25th September, 1983 addressed to the Director, Local Government, Hyderabad/Sukkur. Para. 2 of this letter which is relevant to the following effect:-- "Owing to reorganisation the Local Govt. Department and Rural Development have been merged and allotted the head of Account "560-Rural Development-561-Administration of field office from the year 1981-82 and onwards. It is not understood as to why the Head "010-25 General Admn. Has been operated and the same head is being operated uptil now as reported by the Accountant- General Sind. "
7. It would appear that Govt. Obviously made a query from the Director who was required to explain as to operating of particular Head of Account. It is not known what explanation was furnished by the Director. In any case the learned counsel has not produced any document containing the explanation of the Director's Hyderabad /Sukkur in reply to the above querry of the Government Department. In our opinion even otherwise the letter relied upon by the learned counsel for the appellants does not by itself prove that the said Departments were merged into a single Department. Even if the letter referred to above is taken at its face value, all that it proves is that for the purpose of financial transactions same Head of Account namely 560-Rural Development-561- Administration of Field Offices, was allotted for the field offices of both the Departments. In absence of any other tangible evidence, mere allotment of the same head of account for field offices of the Rural Development Department and Local Government Department cannot be held to have proved the merger of the said Departments for all purposes. Moreover it has been emphatically denied by the official respondents that any such merger of these departments has taken place. In these circumstances we cannot but hold that there is absolutely no evidence before us to prove the merger of the aforesaid departments.
8. Having arrived at the above conclusion, that no merger of Rural Development Department and Local Government Department has taken place, it can be safely held that their separate existence is intact. Consequently the question of preparing of one single seniority list for the Grade-18 officers of both the departments does not arise. We are convinced that reorganization was more or less restricted to only Rural Development Department to which the appellants belonged. The main reason appears to be the establishment of local councils. As the development work was transferred to these councils, the workload of the Rural Development Department got reduced and with the reduction of the workload retrenchment in that Department became inevitable.
9. Consequently, the appellants were declared surplus in their department. In such an eventuality, the surplus employees cannot claim any post in any other department as a matter of right.
10. Accordingly the appellant's grievance against the retention of the private respondents who belong to the cadre of officers of the Local Government Department is entirely untenable. Whenever Government employee is rendered surplus in the Department in which he was working, he is normally sent on retirement with compensatory pension. However, to avoid such hardship being caused to the surplus officials, Govt. Has power under Rule 9(a) of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 to absorb them in any post existing in any department or office of the Government. According to the said rule as far as possible they are to be appointed in the post of equivalent or comparable grade. If such post is not available then of course they are to be appointed in al post of lower grade. Obviously the appellants have been absorbed in Grade-17 posts in the same Department under the above rule. Therefore, the argument advanced on their behalf that they, being direct recruits for Grade-18 posts could not be reverted under section 12 of the Sind Civil Servants Act, 1973 is without any force. In fact there is no indication of their reversion under the said section in the impugned notifications. The earlier notification speaks of their having been declared as surplus and the latter notification shows that they were absorbed in lower grade posts after obviously obtaining their option. For these reasons, both the appeals were dismissed.
11. Before parting with the case, we cannot help observing that this is a case of hardship. Of course after being rendered surplus in Grade-18 posts the appellants were absorbed under rule 9(a) referred to above in Grade-17 posts, allegedly the only course open to Government. However the said rule requires that as far as possible surplus staff are to be appointed in equivalent posts. It is only when no such posts are available in any Government Department or office, that their absorption can be made even in lower grade-posts. We find that by the same notification the appellants are not only declared surplus' but also they are called upon to give their option as to their absorption in the lower grade posts in the same Department namely Rural Development Deptt. This shows that act of declaring them surplus was simultaneous with that of offering them lower grade-posts in the same Deptt. We are of the view that before offering the appellants the lower-grade posts in the same Deptt. The administrative Department did not bother to make a searching enquiry as to existence of Grade-18 posts or the posts comparable to the said posts in any Government Department or Office. The Administrative Department can make such effort even at this stage, as it will tend to lessen the sufferings of the appellants. The administrative Department will look for equivalent or comparable posts for the appellants in other Government Departments or Offices and seek their absorption in such posts.
12. M.Y.H./95/Lb/S