' Sardar Muhammad petitioner, a Senior Scale Stenographer, by invoking Constitutional jurisdiction of this Court seeks a declaration to the effect that the order of the Chief Administrator, Auqaf, conveyed vide letter dated 9-4-1984, turning down his request to declare him senior to respondents Nos. 2 to 4 is without lawful authority and hence of no legal effect and for a direction to the Chief Administrator, Auqaf, to place the petitioner senior to respondents Nos. 2 to 4 in the seniority list and allow him all back benefits keeping in view the date of promotion and unblemished service record.
2. The facts necessary for appreciating the controversy raised in this Constitution petition briefly stated are that Sardar Muhammad petitioner was appointed as steno typist (Urdu in the office of Nazim-e-Masjid, West Pakistan, Lahore, with effect from 22-6-1967. Anwar Samdani respondent No, 2 joined the Auqaf Establishment as Junior Clerk on 1-8-1968. He was promoted as Steno typist
(Urdu) with effect from 1-7-1971. Anwar Samdani in 1973 was working as Steno typist with the then Minister for Auqaf, Punjab, when the Chief Administrator, Auqaf, pursuant to the order passed by the Minister for Auqaf promoted Anwar Samdani as Stenographer (Urdu) in N.P.S. 11 with effect from 13-3-1973. Sardar Muhammad petitioner on 14-6-1973 submitted a representation against the promotion of Anwar Samdani. This representation was rejected by the then Chief Administrator, Auqaf, on 15-6-1974 observing, inter alia, as under:- "The base of promotion of Samdani was better merit; the promotion is now one year and three months old and there is no specific appeal on the file from Mr. Sardar Muhammad against this promotion. I do not find it possible for me to reopen the case without any formal appeal."
' It may be noted at this stage that the respondents neither cited any Rule nor relied upon any Order of the Chief Administrator, Auqaf, prescribing any remedy against the order passed in respect of service of the employees, what to say of a Rule or Order prescribing period of limitation for availing any such remedy.
3. According to the petitioner, another representation was submitted by him as his first representation remained responded. On this representation the case was admittedly again examined but the Chief Administrator, Auqaf, refused to reopen the matter vide his note dated 28- 6-1974. The then Minister for Auqaf did not agree with the said note and observing that he felt that justice had not been done to the petitioner, directed the Chief Administrator of Auqaf to examine the appeal and put up the same to him with his comments. The matter was again examined and ultimately vide order dated 26-10-1976 the Minister for Auqaf directed that Grade-12 be granted to Sardar Muhammad petitioner. The Chief Administrator, Auqaf, on receipt of this order directed that report be put up after scrutiny of the matter giving due regard to the seniority. Sardar Muhammad petitioner was ultimately promoted as Senior Scale Stenographer by the Chief Administrator, Auqaf, on 14-1-1977. It is pertinent to note here that in the meanwhile Saiful Islam respondent No, 3 was appointed on 25-5-1975 as Senior Scale Stenographer through direct recruitment.
Muhammad Jalil respondent No, 4 who was working as Steno typist with effect from 13-9-1968 came to be posted with the Minister for Auqaf in 1976. The Minister on 23-9-1976 recommended that Muhammad Jalil respondent No, 4 be granted N.P.S. 12 as Senior Scale Stenographer with immediate effect and he be posted with him. The then Chief Administrator, Auqaf, obliged the Minister by issuing a promotion order dated 15-11-1976 in compliance with the recommendation made.
4. The service particulars of the petitioner and respondents Nos. 2 to 4 at glance are:-
(1) Sardar Muhammad Steno typist (Urdu) Stenographer petitioner
(2) Anwar Samdani respondent No, 2 (Joined as junior clerk on 1-8-1968)
(3) Saiful Islam respondent No, 3.
(4) Muhammad Jalil respondent No, 4.
' It is pertinent to note that Anwar Samdani and Muhammad Jalil respondents as well as Sardar Muhammad petitioner got their promotion orders when they happened to be posted with the Ministers for Auqaf and on all the three occasions no post of Senior Scale Stenographer was available or vacant. The orders of promotion made by the Ministers were complied with by upgrading one or the other post. It may also be noted that the petitioner ultimately got the promotion and was posted as Senior Scale Stenographer in January, 1977 yet he was not accorded his due seniority as in the Seniority List issued on 25-6-1978 the petitioner was shown junior to the respondents. The same was the position of the Seniority List issued on 23-9-1975.
5. Learned counsel for the petitioner submitted that the petitioner is entitled to rank senior to respondents Nos. 2 to 4 under Rule 17 of the Auqaf Service Rules, 1962. The relevant part of the rule reads as under:- "17(1)(b) Explanation (II).-If a junior official in a lower grade is promoted to a higher grade by superseding a senior official and subsequently that official is also promoted, the official promoted first shall rank senior to the official promoted subsequently."
' It was added that respondents Nos. 2 and 4 were promoted to the post of Senior Scale Stenographer earlier to the petitioner but as these appointments were made out of turn pursuant to the direction made by the Minister concerned it did not have the effect of superseding the petitioner and as such the petitioner on receiving promotion in the grade of Senior Scale Stenographer is entitled to rank senior as he was senior-most in the lower grade of Steno typists. It was further explained that the petitioner was neither considered for promotion at the time that respondents Nos. 2 and 4 were promoted nor respondents Nos. 2 and 4 were held suitable or better entitled to the promotion in preference to the petitioner and as such their promotion in the higher grade would not adversely affect the interest of their senior in the matter of fixation of seniority in the higher grade. It was argued that if the promotion had been made following the principle of seniority-cum-fitness or on merit, the petitioner being senior-most would have been promoted in 1973 in preference to Anwar Samdani respondent and that in recognition of this salutary principle the then Minister observed on 4-9-1974 that justice has not been done to the petitioner. It was claimed that the petitioner as such was entitled to rank senior to respondents Nos. 2 to 4 and the mere delay could not be made a basis for refusing justice to the petitioner specially when he is not responsible for the delay involved. Learned counsel for respondents Nos. 2 to 4 argued that the appointment of the petitioner as Steno typist was void abs initio for the reason that the order of appointment was passed by the officer who was not competent to make the appointment; that Rule 5(2) of the Auqaf Service Rules 1962 then in force did not confer any right on the petitioner to be considered for promotion to the higher grade and as such the promotion of respondents Nos. 2 and 4 ordered by the Chief Administrator, Auqaf, cannot be assailed and seniority in the higher grade on the basis of seniority in the lower grade cannot be claimed and that the petition suffers from laches as the representations made were rejected firstly in 1974 and then in 1978. It was argued that the petition filed in 1984 suffers from laches and inordinate delay and as such the petitioner is not entitled to the grant of relief in exercise of extra-ordinary Constitutional jurisdiction.
6. I have considered the respective submissions of the learned counsel for the parties. Firstly the objection as to laches may be dealt with. The examination of the personal files of the parties reveals that the representation made by the petitioner was rejected by the then Chief Administrator, Auqaf, on 15-6-1974. The petitioner appears to have been also granted hearing in 1978 by the Chief Administrator, Auqaf. The personal file also contains noting to the effect that the petitioner was told that the Seniority List is final but at the same time direction was given to the Section Officer (G) to put up the case of the petitioner. The representation appears to have been finally rejected on 20-6-1978. The case of the petitioner was that the petitioner was not conveyed the order dated 15-6-1974 rejecting his representation and that during the personal hearing he was not told that the Seniority List was final. He claimed that he was rather told that his representation will be furthcr considered. This part of the assertion stands supported by the noting on the file. The personal file further shows that despite rejection of the representation on 15-6-1974 the then Minister for Auqaf on 4-9-1974 passed a direction for re-examination of the case of the petitioner observing that justice appears not to have been done to the petitioner and the Chief Administrator, Auqaf, on receiving the order dated 26-10-1976 of the Minister allowing Grade-12 to the petitioner directed that the report be submitted to him after proper scrutiny keeping in view the seniority of the petitioner. The case remained again in process for about two years and then on 20-6-1978 the then Chief Administrator, Auqaf, rejected the representation in view of the order of the previous Chief Administrator, Auqaf, rejecting the representation on the ground of so-called delay and for non-filing of a regular appeal. Moreover, the representative of the respondents who produced the record admitted that there is nothing on the record except for the letter dated 9-4-1984 to show that information as to rejection of the petitioner's representation was ever conveyed to him. In this view of the matter it cannot be said that the writ petition suffers from aches or inordinate delay.
7. The refusal to allow the due seniority was premised on the ground of delay and non-filing of appeal. As regards the ground of non-filing the appeal, it has already been observed above that no rule or standing order providing for any appeal was cited. The representations were admittedly filed and the same in any case could be treated as appeal. As regards the delay, it will be noted that delay alone cannot be made basis for refusing to concede the due seniority to an employee specially when the employee is not responsible for the delay involved and no right has come to vest in the other person. It will also be seen that orders of promotion of Anwar Samdani and Muhammad Jalil respondents were passed pursuant to the orders of the then Ministers for Auqaf.
Sardar Muhammad petitioner had the misfortune of obtaining the opportunity to work with the Minister later in time than Anwar Samdani and Muhammad Jalil respondents. All these promotions were ordered by the Ministers neither against substantively vacant posts nor after examining comparative merit. The promotion orders had to be carried out by upgrading one or the other post on each occasion. The petitioner as well as the two forenamed respondents were able to receive promotion by winning over the personal pleasure of the three Ministers with whom they got the opportunity to work. The orders of promotion were not thus based on any principle. Now when all the three have joined the same grade, the law on the subject should have been allowed to operate.
In fact the public representatives, who happen to head a Department of the Government, in order to promote service discipline should not only act strictly in accordance with law but also in consonance with the rules of justice and fair play. By acting in that manner alone, the institutions can be built and strengthened, as adherence to principles ensures progress, infuses confidence and helps in producing necessary initiative needed for discharge of functions efficiently and effectively while the tendency to allow undue benefits on account of personal liking and disliking, germinates hypocrisy and results into favoritism and nepotism. This process must be arrested so as to make the bureaucracy work for the good of the common man.
8. Coming to the Service Rules on the subject it is true that Rule 5(2) of the Auqaf Service Rules, 1962 as enforced provided that appointment to ministerial posts shall be made by initial recruitment, promotion or transfer as may be specified by the Chief Administrator from time to time that the promotion of Anwar Samdani respondent was ordered no such order laying down procedure for promotion from the post of Steno typist to the post of Stenographer was issued yet the service record shows that the Steno typists were considered eligible for promotion as Stenographers. In this view of the matter the argument of the learned counsel for the respondents that the petitioner cannot claim the post of Stenographer as a promotion post has no merit. Anwar Samadhi as well as Muhammad Jalil were allowed the posts of Stenographers as promotion posts. In the same way the petitioner was promoted to the post of Senior Scale Stenographer. Rule 17 of the Service Rules (quoted above) also supports the claim of the petitioner to the seniority in the grade of Senior Scale Stenographer. It will, therefore, be seen that the claim to the seniority made by the petitioner is well-founded. If the petitioner is entitled to be treated senior to Anwar Samdani respondent, he obviously is to be treated senior to Saiful Islam as he joined the Establishment at a later date. It may also be noted that learned counsel for the respondents did not press the contention that the appointment of the petitioner as Steno typist was illegal when his attention was drawn to the notification of delegation of powers.
9. For the . Reasons given above the refusal made by the Chief Administrator, Auqaf, to treat the petitioner senior to respondents Nos. 2 to 4 is hereby declared to be without lawful authority and hence of no legal effect. The Chief Administrator, Auqaf, is directed to place the petitioner in the Seniority List over and above respondents Nos. 2 to 4 by issuing necessary order. The writ petition, therefore, succeeds and the same is hereby accepted with costs.