1. MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal, appellant Yasin Ali Hashmi has called in question the Government Notification No. SOF(V)-1(312)-82, dated 19th January, 1986 of the Secretary, Food Department whereby the name of respondent Sohrab Khan Kalwar has been placed above the name of the appellant in the combined seniority list of District Food Controllers, Rationing Controllers and Storage and Enforcement Officers.
2. The appellant's case is that he was Assistant Food Controller when he was promoted as District Food Controller on ad hoc basis by notification dated 14-3-1972. His ad hoc promotion was regularised by notification dated 5-3-1978. Thereafter the appellant was promoted as Assistant Director, Food following his clearance by the Departmental Promotion Committee in its meeting held on 20th August, 1983. The respondent Sohrab Khan Kalwar who joined Food Department as Ward Rationing Officer was promoted to the post of District Food Controller for the first time by the Food Department's Notification No. SOF(V)--2(240)/79 dated Ist October, 1985 wherein he was shown at Serial No.5 and the appellant appeared at S.No.2. In the meantime seniority list of Grade- 16 Officers of the Food Department, as it stood on 1-1-1983, was published with appellant and above respondent appearing at S.No.3 and S.No.8, respectively. However the said respondent who was removed from service on 4th September, 1975 and was subsequently reinstated as Ward Rationing Officer on 2-1-1982, had already made representation for grant of seniority position in Grade-16 and consequent promotion in Grade-17. Ultimately the impugned notification referred to above was issued whereby he was allowed seniority above the name of the appellant. After filing departmental appeal against the above notification and waiting for 90 days for the decision thereon, the appellant filed the present appeal.
3. We heard the arguments of the learned counsel for the parties and went through the case file. We allowed the appeal with no order as to costs by short order dated 20-4-1987 for reasons to be recorded later on. Following are the reasons in support of the short order.
4. It is clear from the seniority list of Grade-16 officers of the Food Department issued on 15th August, 1983 reflecting the seniority position as it stood on 1-1-1983 that the name of the appellant appears at S.No.3 whereas the name of respondent Sohrab Khan is mentioned at S.No.8. But by the notification impugned in this appeal, the above seniority position of the appellant has been disturbed and the name of respondent Sohrab Khan has been placed above his name. The above seniority list, as is shown in its title, is in respect of the officers of Grade-16 working in the Food Department. Thus the basis on which the said seniority list has been drawn up is the Grade of pay, the officers mentioned in the list were enjoying. However rule 9(1) of Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred as 1975-Rules) under which seniority list is to be prepared reads as under: "9(1) 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."
5. The reading of the above rule clearly shows that it is not the intention of the framers of rules merely to lump up all officers belonging to same grade in one seniority list. In such a case the above rule should have only said "In each grade in a department there shall be a separate seniority list". This would mean that in every Department, seniority would be prepared grade-were and there would be as many seniority lists as there were grades of officials /officers irrespective of the types of posts held by them or the duties and functions assigned to such posts. However, we are of the view that correct interpretation of the above rule is that every Government Department has to identify such group or groups of civil servants in each Grade, who are doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down and then prepare separate seniority list for each such group of civil servants. If the seniority list is prepared in the light of above criteria, then as far as possible there shall be separate seniority list for the incumbents of the posts carrying the same nomenclature. In the instant case when the seniority list of 1983 was out, the appellant and respondent No. 3 held the posts with different names even though both the posts were in Grade-16. The appellant was District Food Controller and the respondent No.3 was Ward Rationing Officer. If both these posts satisfied the requirements of rule 9(1) hereinabove inasmuch as that similar duties and functions were assigned to them and for appointment of their incumbents similar qualifications and experience were laid down then we see absolutely no justification to call these posts by different names. Elaborating the above argument further, we may point out that the appellant as District Food Controller was in charge of whole of the District, whereas the respondent No.3 as Ward Rationing Officer was assigned rationing work of a ward which was only a fraction of the District. Therefore, unless the above rule for preparing seniority list is ignored or violated, combined seniority list showing inter se seniority of the appellant and respondent No.3 cannot to conceived. Accordingly we are clear in our mind that seniority list dated 15th August, 1983 has been prepared in flagrant violation of the mandatory rule mentioned above. So long the appellant and respondent No.3 held different posts carrying different duties and functions, they could not be shown in the same seniority list indicating therein the position of their inter seniority.
6. Looking at the case from another angle, it may be mentioned here that when the respondent No.3 was appointed as Ward Rationing Officer on 27-4-1971, that post was not only non-gazetted but was lower in rank than the post of District Food Controller and also carried lower scale of pay. It was in the were of introduction of National Scales of Pay (Grades) w.e.f. 1-3-1972 that the said post was placed in Grade 16 and brought at par with the post of District Food Controller grade-were as the latter post was also placed in the same Grade. Nevertheless the rank and status of the two posts otherwise remained unaltered. According to the West Pakistan Food Department (Gazetted Posts)
7. Rules, 1963, which were amended in 1967 (vide notification dated 13th January, 1967) the post of District Food Controller was higher than that of Ward Rationing Officer, as the incumbent of the latter post was eligible for promotion to the former post, if he possessed three years' experience of his own post. The said rules continued in force until 26th June 1980 when they were superseded by Government Notification which spelt out new conditions including the method for filling the post of District Food Controller. This shows that the post of District Food Controller was higher than that of Ward Rationing Officer upto the issuance of the above notification on 26th June, 1980.
8. It is an admitted position that the appellant's promotion to the post of District Food Controller was regularised on 5-3-1978. Consequently his seniority in that post commenced from that date. In the meantime the post of Ward Rationing Officer held by the respondent No.3 was placed in Grade-16 w.e.f. 1-3-1972. Merely because District Food Controller's post was also in Grade-16 on the same date, the said respondent could not be held to have been appointed or promoted to the latter post.
9. As pointed out above under the rules in force Ward Rationing Officer could be appointed as District Food Controller by promotion provided he had three years' experience as Ward Rationing Officer.
10. By the time, the post of Ward Rationing Officer was equated with the post of District Food Controller in Grade-16 (i.e. On 1-3-1972), the respondent No.3 who was appointed as Ward Rationing Officer on 27-4-1971, had not completed even one year in that capacity and as such on that ground too, he was not eligible for promotion to the post of District Food Controller.
11. Thus the appellant held higher post of District Food Controller whereas the respondent No.3 worked in lower post of Ward Rationing Officer until the above mentioned notification dated 26th June, 1980 was issued. According to this Notification the method of filling the post of District Food Controller was changed and it was to be filled by transfer of Ward Rationing Officer on the basis of seniority. In other words whenever the post of District Food Controller fell vacant, only senior most Ward Rationing Officer was to be appointed to that post by way of transfer. Even on this ground a separate seniority list of Ward Rationing Officers had to be maintained, so that it could be determined as to who was the senior most Ward Rationing Officer at the time when vacancy occurred in the post of District Food Controller. We have not been shown any order by which the respondent No.3 was inducted in the post of District Food Controller on account of his being senior most Ward Rationing Officer. However our attention is drawn to the Government Notification No.SOF(V)-2(240)-79 dated 1-10-1985 whereby the respondent No.3 with some other Ward Rationing Officers was promoted as District Food Controller on recommendations of Departmental Promotion Committee. Thus the seniority of the said" respondent in the post of District Food Controller could be reckoned only from the aforesaid date when he was actually appointed by promotion as District Food Controller for the first time. Of course the above notification also carries the name of appellant. The mention of his name in the said notification seems to have been made through some misunderstanding. As pointed out earlier the appellant's promotion as District Food Controller was regularised by notification dated 5-3-1978. Moreover the above notification by which respondent No.3 was promoted as District Food Controller for the first time relates to the promotion of only Ward Rationing Officers as District Food Controllers. Admittedly the appellant did not hold that post on the date of the said notification but he was working as Assistant Director Food. The appellant's plea to this effect, taken in para 7 of memo of appeal has not been denied in the written statement.
12. From above discussion it is clear that combined seniority list for pots of District Food Controller and Ward Rationing Officer is not legally valid being against the rules. Furthermore if separate seniority list of District Food Controllers is prepared, the appellant would rank senior to the respondent No.3.
13. For above reasons the impugned notification dated 19th January, 1986 was not sustainable.
14. Accordingly appeal was allowed and the said notification stood set aside.
15. A.E/.106/Sr.S Appeal allowed.