1. ' MUNAWAR ALI KHAN (CHAIRMAN).--By this judgment we propose to dispose two appeals: Appeal No, 21 of 1987 filed by Shaikh Zaffar Iqbal and Appeal No, 22 of 1987 filed by Abdul Latif Baloch. In both the appeals, the seniority list of Excise and Taxation Officers (Grade-17) issued on 10th March, 1984 has been called in question. The appellants have claimed to be senior to the private respondents mentioned in their respective memos. Of appeal and therefore have prayed for correcting the said seniority list accordingly.
2. ' The case of appellant Zaffar Iqbal, as disclosed in his memo. Of appeal, is that he was promoted as Excise and Taxation Officer (Grade-16) on 17-101970, while he was working in that capacity, he was compulsorily retired under M.L.R.-114 on 13-12-1972. Consequent upon acceptance of his review petition under M.L.O. 23 he was reinstated in service vide Sind Government's Notification No, SO(S&GAD)RB/1978 dated 7th June, 1978. Subsequently, the intervening period of his break in service between date of his compulsory retirement and date of his reinstatement was allowed to be counted towards length of service in the grade in which he was working at the time of his removal for the purpose of promotion. After the appellant earned good confidential report for the period of six months immediately following his reinstatement, he was allowed to continue in service in normal course by the Chief Secretary's Notification No, SO(S&GAD)/RD/172/78, dated 10th May, 1979. Accordingly it was reestablished on record that he was restored to the position prior to his retirement, inasmuch as that he was allowed to serve in permanent cadre as at the time of his retirement he was officiating in the substantive vacancy caused by promotion of Mr. M.N. Siddiqui to the post of Assistant Director. According to the appellant, the respondents Nos. 3 to 6 who were appointed by initial recruitment on 4-71973 against temporary posts and completed the period of their probation two years later, should rank junior to him as he was promoted' in substantive vacancy earlier than their date of appointment. As for respondent No, 7, the appellant claims seniority over him firstly on the ground that he was promoted earlier than the promotion of the said respondent to the post of Excise and Taxation Officer (Grade-16) and secondly that he was confirmed in the lower post of Excise and Taxation Inspector before the confirmation of said respondent in the said lower grade's post. As for respondent No, 8, the appellant's case is that although appellant was junior to him in lower Grade-11 of Excise and Taxation Inspectors, yet he was promoted earlier as Excise and Taxation Officer (Gracie-16) in supersession of said respondent and as such he became senior to him in the higher Grade. On these lines the appellant had filed his objections before the seniority Committee constituted by the Government but his seniority position remained unaltered in the impugned seniority list. He preferred departmental appeal which was also rejected. Thereafter he filed the present appeal.
3. ' The case of appellant Abdul Latif Baloch, is that he was promoted to the post of Excise and Taxation Officer (Grade-16) on 30-5-1971 in a substantive vacancy caused by retirement of Mr. S.I.H.
4. Rizvi. As per West Pakistan Excise and Taxation (Class H) Rules, 1965, he was deemed to have been confirmed in the said post on expiry of probationary period of one year. As against this, the respondents Nos. 3 to 6 were inducted in the temporary posts of Excise and Taxation Officers by initial recruitment, vide Notification No, 17/29/73-Estt.D.G. 3824, dated 4-7-1973. Furthermore the Public Service Commission in its letter No, PSC-AL-70/1441, dated 20-5-1971 indicated that three vacancies were reserved for direct recruits, but the Commission was kept totally in dark about the 11 vacancies which were filled by promotion between March, 1972 and June, 1973. In view of these vacancies the appellant was entitled to be regularized earlier than the appointment of the direct recruits/respondents. Thus appellant should rank senior to the said respondents. The appellant also claims seniority over respondent No, 7 both on the basis of his earlier confirmation in the lower grade of Excise and Taxation Inspector than the date of the said respondent's confirmation in that grade and his earlier promotion in Grade-16 as Excise and Taxation Officer than the promotion of the said respondent in that capacity. As for respondent No, 8, the appellant claims to be senior even to him on account of his superseding the said respondent at the time of his promotion to the post of Excise and Taxation Officer. Accordingly the appellant filed his objections before the seniority Committee set up by the Government but despite that he was shown junior to the aforementioned respondents in the impugned seniority List. He, therefore, preferred departmental appeal but that too met the same fate. Thereafter he filed the present appeal.
5. ' We heard the arguments of the appellants and the learned Government Counsel. We also carefully went through all the documents relevant for disposal of the appeals.
6. ' These appeals relate to dispute over seniority. The appellants claim to be senior to the respondentg specified in their memos. Of appeal. However, it is for the first time in the history of service law that claim of seniority has no longer remained as vested right over particular seniority.
7. As provided in subsection (1) of section 8 of the Sind Civil Servants Act, 1973 (hereinafter referred to as the said Act) although seniority list of members of service, Grade etc. Is required to be prepared, yet no such member can claim vested right over a particular seniority. The seniority list which was the target of attack in course of the arguments made by the appellants was issued on 10th March, 1984. On this date not only the said Act was in force but also the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred to 1975 Rules) held the field. Therefore it is to be examined if the impugned seniority list satisfied the requirements of the said Act and Rules. For this purpose it may be pertinent to refer to the relevant provisions of the said Act and Rules. Subsections (3) and (4) of section 8 of the said Act read as under:- "(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
8. (4)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; ' Provided that civil servants who are selected for promotion to higher grade in one batch shall, on their promotion to higher grade; retain the inter se seniority as in the lower grade."
9. ' Rule 10 of the 1975 rules reads as under:- "1.0.(1) Subject to the provision of rule 11, the seniority of a civil servant shall be reckoned from the date of his regular appointment.
(2) No appointment made on ad hoc basis shall be regularized retrospectively."
10. "Regular appointment" used in the above provisions has been distinguished from "ad hoc appointment" which as defined in clause (a) of subsection (1) of section 2 of the said Act means; "appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending the recruitment in accordance with such method."
11. ' It is clear from the above provisions that seniority is to be reckoned from the date of regular appointment. Therefore, we have to first identify the date of regular appointment of the appellants to Grade-17 post. In this connection reference may be made to Government's Notification No, SO- Admen. (E&T)/3(78)/74-Estt dated 29th September, 1979 which clearly shows that on recommendations of the Departmental Promotion Committee appellant Zaffar Iqbal was promoted from Grade-16 to Grade-17. Thus, his regular promotion to Grade-17 was made on 29th September, 1979. So far appellant Abdul Latif Baloch is concerned, he was promoted to Grade-17 on regular basis with effect from 1st July, 1978 vide Government's Notification No, SO(ADMN)/E&T/3(78)/74-Estt., dated 18th October, 1978. Accordingly in normal course the seniority of appellants Zaffar Iqbal and Abdul Latif Baloch in Grade-17 will be reckoned from 29th September, 1979 and 1st July, 1978 respectively.
12. ' However, it was contended by the appellants that since they were senior to the respondents in the lower Grade-16, they would retain their inter se seniority of that grade, even in higher Grade-17.
13. Their contention is not entirely correct. As has been clarified in the proviso to subsection (4) of section 8 of the said Act reproduced above, only those civil servants who are selected for promotion to higher grade in one batch, would retain their inter se seniority of the lower grade. No doubt appellant Abdul Latif Baloch was promoted to Grade-17 along with respondents Nisar Ahmad Soomro, Gul Hassan Pathan, Mustafa Kamal Ansari, Jamshed Ahmad Khanzada. Akhtar Ali Shah and Anwar Mujtaba in one batch by the same Notification No, SO(ADMN)E&T/3(78)/74-Estt., dated 18th October, 1978. Therefore, in view of the above proviso they would retain their inter se seniority of Grade-16 even in the higher Grade-17. However, the case of appellant Zaffar Iqbal stands on different footing. Since he was promoted to Grade-17 by separate notification issued on 29th September, 1979, he would not get the benefit of the aforesaid proviso.
14. ' Reverting to the case of appellant Abdul Latif Baloch, we have to see if he was senior to the respondents in Grade-16. We have not been shown any separate seniority list of Grade-16 of Excise and Taxation Officers. As disclosed in the impugned seniority list, the above appellant had entered Grade-16 on the same date viz. 26-11-1976, on which respondents Akhtar Ali Shah and Anwar Mujtaba had joined the said Grade. The remaining four respondents Mustafa Kamal Ansari, Jamshed Ahmed Khanzada, Gul Hassan Pathan and Nisar Ahmad Soomro, as per the impugned seniority list, were inducted in Grade-16 by initial recruitment on 16-7-1973, 17-7-1973, 1-8-1973 and 17-8-1973 respectively. Consequent upon their selection by the Public Service Commission, they were however appointed in a batch by same Notification No, 17/29/73- Estt.(DG)/3824, dated 4th July, 1973, which also shows that their inter se seniority would be fixed in order of merit assigned to them by the Public Service Commission. Thus, these direct recruits/respondents having entered the cadre of Excise and Taxation Officer (Grade-16) earlier than the entry of the appellant Abdul Latif in the same cadre, they are shown senior to him in that cadre. However, the argument of the appellant was that he was appointed in Grade-16 against a substantive vacancy on 30-5-1971 and by virtue of rule 8(1) Exp. II and Exp. III of West Pakistan Excise and Taxation Service (Class II) Rules, 1965, (hereinafter referred to 1965 Rules) which governed his appointment, on expiry of probationary period of one year, he stood confirmed retrospectively from the date of appointment and as such he became senior to the direct recruits/respondents whose appointment was notified much later on 4-7-1973.
15. ' We have perused the notification No, 5/3J70-Estt(DG)/2627, dated 15th May, 1971 whereby appellant Abdul Latif Baloch was promoted from the post of Excise and Taxation Inspector to that of Excise and Taxation Officer. As was made clear in the notification his promotion was only on ad hoc basis for a period of six months and subject to approval of Public Service Commission. It is true that when the above notification of his promotion was issued, 1965-Rules were applicable. As per sub-rule (1) of rule 5 of these rules, fifty per cent of the vacancies in the service were to be filled by promotion in accordance with the mechanism laid down in sub-rule (4) of the said rule. There is no satisfactory material available on record to show that the appellant's above promotion was made against the quotas reserved for promotes and further that the Public Service Commission had given its approval and if so whether it was for only six months or for indefinite period. Accordingly such promotion cannot be held to have been made on regular basis in conformity with the 1965 Rules. Our attention has been drawn to the Notification No, 10(43)/76-Estt./355, dated 26th November, 1976 by which the ad hoc promotion of the appellant was regularized from the said date. This shows that he continued to hold the post of Excise and Taxation Officer (Grade-16) on ad hoc basis until the above date when his promotion was regularized. By this date the said Act and 1975-Rules had already come into force and therefore the question of retrospective regularization of his promotion did not arise. Of course 1965 Rules are silent as regards retrospective regularization of promotion. But when the appellant's promotion was regularized the said rules had already been superseded by the said Act which, as stated above,, does not permit the regularization retrospectively. The appellant's contention was that as many as eleven vacancies occurred between March, 1972 and June, 1973 which all were filled by promotion and he could have been regularized against one of such vacancies. He has raised this contention in para. 8 of his memo. Of appeal. In reply given in the written statement filed on behalf of official respondents, it was submitted that they were all temporary posts and were created for short period. Moreover, the notification dated 21st March, 1972 by which some promotions were made shows that all the promotions were ad hoc lasting for six months. As such the appellant's contention is untenable.
16. Consequently, the seniority of appellant Abdul Latif Baloch in Grade-16 would be reckoned from 26th November, 1976 on which his promotion to the said Grade was regularized. Therefore, he could not be held senior to direct recruits/respondents in Grade-16 as their entry in that grade on regular basis was earlier on 4-7-1973.
17. ' However, the appellant Abdul Latif and remaining two respondents Akhtar Ali Shah and Anwar Mujtaba who entered Grade-16 in a batch on the same date i,e, 26-11-1976 would, in view of proviso to subsection (4) of section 8 of the said Act, retain their inter se seniority of lower Grade of Excise and Taxation Inspectors. Respondent Anwar Mujtaba was admittedly senior to appellant Abdul Latif in the cadre of Excise and Taxation Inspectors and was even confirmed in that cadre from earlier date (viz. 9-7-1963) than the date of the appellant's confirmation (viz. 12-7-1963). Accordingly he would rank senior to appellant Abdul Latif even in Grade-16. Respondent Akhtar Ali Shah, belonged to different Region of Hyderabad. As disclosed in the Gradation list dated 31-121967, he was appointed as Excise and Taxation Inspector on 9-1-1961 and was confirmed in the said post on 3rd December, 1964. In the same list appellant Abdul Latif is shown to have held the post of Excise and Taxation Inspector in Karachi region continuously from 1-2-1963 but the date of his confirmation in that post is not reflected in the said Gradation list. As per Notification No, 5/30/70-Estt/(D.0)/2763, dated 8th December, 1970, he was confirmed as Excise and Taxation Inspector on 12-7-1963.
18. However, we saw no force in the argument of the appellant Abdul Latif that since his date of confirmation in lower grade of Inspectors was earlier than that of respondent Akhtar Ali Shah, he was senior to him in the said lower grade. As pointed out above seniority is reckoned from the date of regular appointment and not from the date of confirmation. Despite this, if both the appellant Abdul Latif and respondent Akhtar Ali had belonged to the same region as Inspectors, the position would have been different. In that case the appellant would have ranked senior to the said respondent in the Grade of Inspectors on the basis of earlier confirmation. Since their regions of service as Inspectors were different, obviously their confirmation depended on availability of substantive vacancy in particular region. It seems in Karachi region where the appellant was appointed as Inspector two years later than Akhtar Ali Shah's appointment in the same capacity in Hyderabad region, substantive vacancy in Inspector's post, occurred earlier than the occurrence of such vacancy in Hyderabad region. This explains the appellant's earlier confirmation than the confirmation of respondent Akhtar Ali Shah. Since the appellant got the earlier confirmation in different region that could not be criterion to determine his inter se seniority vis-a-vis respondent Akhtar Ali Shah in the cadre of Inspectors. It is not the appellant's case that Akhtar Ali Shah's appointment as Inspector was not made in accordance with prescribed method of appointment (i,e, on regular basis). Accordingly the date of continuous officiating of respondent Akhtar Ali Shah as Inspector being earlier than that of the appellant, the former would rank senior to the latter even in the lower Grade of Excise and Taxation Inspectors.
19. ' Coming to the case of appellant Zaffar Iqbal, it has already been made clear in the foregoing paragraphs that since his promotion to Grade-17 was made by separate notification and not in a batch with the respondents, proviso to subsection (4) of section 8 of the said Act would not apply in his case. His next argument was that since his promotion to Grade-17 was delayed and in the meantime his juniors were promoted to the said grade for reasons beyond his control, he was entitled to the benefit of rule 13 of 1975 Rules and to be placed above the respondents in the impugned seniority list. With a view to appreciate his arguments, rule 13 is reproduced as under:- "13. A civil servant, who is not promoted on his turn on the ground that:-
(i) his seniority is under dispute or is not determined; or
(ii) he is on deputation, training or leave; or
(iii) disciplinary proceedings are pending against him; or
(iv) he is not considered for promotion for any reason other than his unfitness for promotion; ' shall, on subsequent promotion, subject to any 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."
20. It would appear from above rule that if a civil servant is not promoted on his turn on the grounds specified therein, he on his subsequent promotion, shall be deemed to have been promoted in the same batch as his juniors. On perusal of the impugned seniority list it is revealed that the date of entry of all the private respondents in Grade-17 was 1-7-1978 whereas the appellant is shown to have entered the same Grade on 29-9-1979. In other words the respondents were promoted to Grade-17 earlier than the promotion of the appellant to that Grade. For applying rule 13 hereinabove in the appellant's case, the first point to be considered is if all the respondents were junior to him in the Grade-16. As stated above there was no separate seniority list of Excise and Taxation Officers in Grade-16. In the impugned seniority list although the dates of respondents' appointment to the said Grade are mentioned, the date of the appellant's entry in that Grade is missing. In this regard, the appellant's own submission was that since he was appointed E.T.O- Grade-16 as far back as 17-10-1970, much before the induction of the respondents in that Grade, he was senior to them in the Grade-16. We have perused the order dated 17th October, 1970 by which the appellant was appointed as Excise and Taxation Officer. It clearly shows that he was temporarily promoted only for six months and subject to the condition that the promotion would not confer on him any right or claim to continue in the post and that it could be reviewed or modified and further it was subject to approval of the Public Service Commission. Viewed in the light of rule 5 of 1965 Rules which were then in force, the appellant's promotion could not be held to have been made regularly in conformity with the requirements of the said rule. If the vacancy against which the appellant was promoted was a clear vacancy and was a part of the fifty per cent quota reserved for promotes, there was absolutely no need to order his promotion on temporary basis only for six months and further to subject it to the specified conditions. Even prior approval of the Public Service Commission was not obtained which was mandatory requirement vide Regulation 4 of West Pakistan Public Service Commission (Limitations of Functions)
21. Regulations, 1957. In any case such promotion was required to be regularized on fulfillment of conditions laid down in 1965 Rules. However, before any such regularization was made, the appellant was compulsorily retired under M.L.R. 114 on 13-12-1972. Subsequently on acceptance of his review petition preferred under M.L.O. 23, he was reinstated by the Notification dated 7-6-1978 which reads as under:- "In exercise of the powers conferred under paragraph 5 of Martial Law Order 23, Martial Law Administrator, Zone 'C' is pleased to reinstate the following persons with immediate effect;
(ix) Mr. Zafar Iqbal formerly Excise and Taxation Officer (on special report for a period of six months)"
22. ' Having earned good report in terms of above order, the appellant was allowed to continue in service (as Excise and Taxation Officer) in normal course vide Chief Secretary to Government of Sind's Notification No, S.O.(S&GAD)RD/172/78, dated 10th May, 1979. In course of the arguments the appelalnt submitted that this notification was issued in pursuance of the recommendations of the Departmental Promotion Committee. However, in para 4 of the memo. Of appeal although reference has been made to this notification (erroneously mentioned as that of 16-5-1979), it is not stated that the said notification had the blessings of the Departmental Promotion Committee. On the contrary the said para. Shows that the above notification was issued on recommendations of the Chief Secretary. In any case it was not disputed that his promotion as Excise and Taxation Officer was regularized for the first time by above Notification dated 10th May, 1979. According to the appellant such regularization would have to take effect retrospectively from the date of his promotion namely 17-10-1970. In support of his claim the appelant relied upon the policy letter of the Federal Government No, 3/3/78-R-II, dated 3-7-1979 which was adopted by the Sind Government vide S&GAD's letter No, S.O.XREGS&GAD)4/20-78, dated 7-8-1979. The Federal Government's letter reads as under: "The undersigned is directed to refer to the Establishment Division' S.O.M. No, 3/3/78-R-II, dated the 5th July, 1978 on the above-mentioned subject and to say that the President has been pleased to decide that the intervening period between the date of retirement, removal etc. And the date of reinstatement of officer reinstated under M.L.O. 23 should be allowed for purpose of promotion to count towards the length of service in the Grade in which such an Officer was serving at the time of his removal."
23. ' As per policy decision contained in the above letter, if promotion depended on specified length of service, then in the case of the officers reinstated in service under M.L.O. 23, the period of break in their service i,e, period between date of their compulsory retirement and date of their reinstatement would count towards the length of service of the said officers, as if such break had never taken place. That is however, not the point involved in the case of appellant Zaffar Iqbal.
24. Consequent upon his reinstatement in service under M.L.O. 23, he stood restored to the position prior to his compulsory retirement. At the time of his compulsory retirement, he was holding the post of Excise and Taxation Officer on temporary basis only for six months with further conditions attached to the appointment that it would not confer on the appellant any right or claim to continue in the post and it was to be approved by the Public Service Commission. We have already pointed out that such appointment could not be designated as regular appointment made in accordance with the prescribed procedure. In fact even the appellant himself admitted this position indirectly when he wanted us to treat the Chief Secretary's order dated 10th May, 1979 as having regularized his promotion as Excise and Taxation Officer. All he wanted was that the said regularization be extended to cover the intervening period starting from 17-101970, the date of his temporary promotion.
25. We have held in the foregoing paragraphs that as provided in subsection (4) of section 8 of the said Act, the seniority of promote is reckoned from the date of his regular appointment. This provision, in our opinion, bars the possibility of giving retrospective effect to regular appointment.
26. Furthermore sub-rule (2) of rule 10 of 1975 Rules expressly prohibits the regularization of appointment retrospectively. Since the promotion of the appellant Zaffar Iqbal to Grade-16 was regularized on 10th May, 1979, his seniority in the said grade would be reckoned from that date.
27. Consequently his induction in Grade-16 being later than that of the respondents he cannot be held to be senior to them in that grade. Therefore, rule 13 of 1975 Rules would not be attracted in his case.
28. ' The upshot of above discussion is that both the appeals are without any merit. Accordingly they are dismissed with no order as to costs.