JUDGMENTJUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).- The appeal No.46 of 1987 filed by Agha Rafiq Ahmed, arose from the facts which arc briefly narrated as follows. On 14th August 1974, the appellant joined service of Sind Road Transport Corporation, the Autonomous Body, as Traffic Manager in NPS.I6. Subsequently as a result of retrenchment carried out in the corporation he was declared surplus and his services were terminated on 7th August, 1977. On his representation dated 25th October,1978 for his absorption under Rule 9-A of Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 (here-in-after referred as 1974-Rules) the Chief Secretary to Govt.-of Sind by his order dated 8th July, 1979 placed the services of the appellant at the disposal of the Food Department for absorbing him in accordance with the instructions contained in the S&GAD's Circular No. E&A (S&GAD) l(88)/78 dated 12th August, 1978, against the available vacancy of Ward Rationing Officer. However he was absorbed as Food Grain Inspector (Grade-6 vide order of the Secretary to Government of Sind, Food Department dated 24th September, 1979. Dissatisfied with this order, the appellant made representation seeking his absorption in Grade-16 but without any success. Ultimately the appellant filed appeal No.55 of 1981 before this Tribunal which was however dismissed by the judgement dated 3rd January, 1983. The appellant challenged this judgement in appeal before the Supreme Court and his appeal was allowed by judgement of the Supreme Court dated 15th January, 1984. In compliance with the orders of the Supreme Court contained in the said judgement, the appellant was inducted in the post of Ward Rationing Officer (Grade-16) w.e.f. 17th March, 1984. Accordingly in the Seniority list issued on 30th January, 1986, the appellant was assigned seniority position on the basis of the date of his appointment viz. 17th March, 1984. Since the appellant was not satisfied with his placement in the Seniority list, he made representation to the Secretary Food Department which was turned down. Vide Food Department's letter No. SOF(V)-2(6)/76 dated 2nd March, 1987. The appellant preferred appeal to the Chief Secretary on 1st April 1987, but as he got no response from the said Appellate Authority he filed the present appeal.
2. Wc heard the arguments of Mr.M.L.Shahani on behalf of the appellant and Mr.Imdad Hussain Kazi submitted his arguments on behalf of the official respondents. Beside them, Mr. Assadullah Balouch one of the private respondents who was present was also heard. We also went through the relevant documents available on record.
3. Although the appeal was admitted to regular hearing subject to all just exceptions including the question of limitation, yet the learned counsel for the appellant did not refer to this question even casually in course of his arguments. No doubt belated application for condonation of the delay was made on behalf of the appellant on 12th August 1987. The said application was supported by two affidavits: one of the appellant's counsel, Mr.M.L.Shahani himself and another of his partner advocate Syed Manazirul Haq. All that has been stated in their affidavits is that the appeal which was intended to be presented on 27th July, 1987 was actually filed on 2nd August, 1987, as during the intervening period Syed Manazirul Haq fell ill and was confined to bed. In other words the application sought condonation of the delay for six days, from 27th July, 1987 to 2nd August, 1987.
However the learned counsel completely everlooked the period which was wasted in filing second appeal to the Chief Secretary against the order of the Secretary, Food Department dated 2nd March 1987. Thus even if the condonation application hereinabove was allowed the period consumed in making the second appeal would remain unexplained. In this connection we may refer in Section 23 of the Sind Civil Servants Act 1973 (hereinafter referred as said Act) which provides right of only one appeal. If a civil servant is aggrieved by order departmental authority with regard to terms and conditions of his service he may make representation/appeal to higher authority within the specified period. In the instant case the appellant was obviously aggrieved by the seniority list issued on 30th January, 1986, by the Secretary, Food Department. A such the appeal against the said seniority list lay to the high authority namely the Chief Secretary. However the appellant instead of filing the departmental appeal straightaway to the Chief Secretary, approached the same authority namely the Secretary, Food Deptt. Who had issued the impugned seniority list, in the representation dated 13th May, 1986. Such representation was not called for under the law and rules. In fact the said representation being the appellant's first protest could be appropriately treated as his representation/appeal against the Seniority list as allowed by the said Act. Although the representation was addressed to the wrong forum instead of proper forum namely Chief Secretary, still the appellant after waiting for 90 days from filing of such representation could approach this Tribunal in appeal within 30 days following such wailing. In this way the present appeal could be filed latest by 8th/9th September, 1986. Instead of doing so, the appellant challenged the order passed by the Secretary Food Department dated 2nd March, 1987 in appeal before the Chief Secretary, which w.As clearly a second appeal against the impugned seniority list. Since second appeal was not permissible under the law the time consumed in its pursuit from 8th September, 1986 to 27th July, 1987 remained unexplained. Accordingly the appeal is badly time barred and could be dismissed on his ground alone.
4. However we would like to examine the case even on merits. It is an admitted position that following the termination of appellant's services as Assistant Traffic Manager of the Sind Road Transport Corporation, the Chief Secretary to Govt, of Sind placed his services at the disposal of Food Department for absorption in the available vacancy of Ward Rationing Officer by his order dated 8th July, 1979. Since the Chief Secretary's order was not complied with and instead the appellant was absorbed as Food Grain Inspector (Grade-6) he went in litigation right up to the Supreme Court. The operative part of the judgement of the Supreme Court dated 15th January, 1984 is reproduced as under:"The order of appointment in favour of the appellant was made as far back as July, 1979 and it is unbelievable that no vacancy of Ward Rationing Officer or of a post of equivalent or comparable grade may have occurred since then. Further as mentioned in the circular letter dated 12.8.1978 the ban on recruitment and promotions against vacancies was continued. In the circumstances, no justification has been shown for not implementing the order of the Government dated 8-7-1979 whereby the appellant was straightaway appointed as Ward Rotioning Officer against "the available vacancy:"and in case there existed no vacancy in the said post, he was liable to be appointed to a post of equivalent or comparable grade and not to a post of grade-6 which is ten grade lower because his appointment to a lower grade post was clearly not envisaged in the order.
For the reasons mentioned above, we set aside the order of the learned Services Tribunal dated 3- 1-1983, accept the appeal and direct that the order of the Government of Sind dated 8-7- 1979 should be implemented forthwith as indicated above."
Thus so far the appellant's absorption as Ward Rationing Officer is concerned, the matter was clinched by the judgement of the Supreme Court. In pursuance of the said judgment the appellant was appointed as Ward Rationing Officer. Accordingly we can not go into the justification or otherwise of the appellant's absorption in the said post. Even otherwise the question agitated in the present appeal is not with regard to justification of the appellant's absorption as Ward Rationing- Officer but is about his seniority resulting from such absorption. The appellant claims seniority in the cadre of Ward Rationing Officers from 8-7-1979 on which Chief Secretary had placed his services at the disposal of Food Department for absorption in the post of Ward Rationing Officer and not from 17.3.1984, the date of his appointment as shown in the Seniority list. In course of his arguments, the learned counsel for the appellant laid stress on the judgment of the Supreme Court submitting that it was clear from the judgment itself that the appellant was to be given benefit of seniority as Ward Rationing Officer from the date, on which the Chief Secretary had made orders in his favour. On the other hand the contention of the learned Government Counsel was that there was no direction in the judgment of the Supreme Court that appellant was to be appointed as Ward Rationing Officer retrospectively from the date of Chief Secretary's order. As such he was entitled to seniority from the date of his appointment in that post.
5. We have carefully perused the judgment of the Supreme Court. As has been mentioned in the end of the operative part of the judgment reproduced above the order of Government of Sind dated 8th July 1979 was directed to be implemented forthwith. It appears to us that the intention of the above direction was to make compliance of the Chief Secretary's order immediately. As a matter of fact necessary compliance was made by appointing the appellant as Ward Rationing Officer by order dated 17th March 1984. However in the para immediately preceding the para containing the above direction of the Supreme Court, while observing that no justification has been shown for not implementing the order of Government dated 1979 whereby the appellant was straightaway appointed as Ward Rationing Officer against the available vacancy, the Honourable Supreme Court was pleaded to note that in case there existed no vacancy in the said post, he was liable to be appointed to a post of equivalent or comparable grade and not to a post of grade-6 which is ten grade lower because his appointment to a lower grade post was clearly not envisaged in the order. No doubt the Honourable Supreme Court construed the order of Chief Secretary dated 8th July,1979 as the order whereby appellant was straightaway appointed as Ward Rationing Officer against the available vacancy, still it did not rule out the possibility of want of vacancy in the said post. In the latter eventuality Supreme Court's intention was that the appellant should have been absorbed in a post of equivalent or comparable grade. Thus if the said two paragraphs of the operative part of the judgement of the Supreme Court are read together, it would appear that all that Honourable Court intended was the immediate implementation of the Chief Secretary's order dated 8th July, 1979 in as much as that the appellant be appointed to the post of Ward Rationing Officer and if such post was not available a post of equivalent or comparable grade should be given to him forthwith. We are of the view that the direction of the Supreme Court stood implemented as soon as the appellant was appointed as Ward Rationing Officer w.e.f. 17th March, 1984. However we find no force in the argument that the Honourable Supreme Court intended the said appointment to be made retrospectively, from the date of Chief Secretary's order (i.e. 8th July, 1979). Ln this connection it may be pointed out that, firstly the appointment was depended on availability of the vacancy and secondly since the appellant has not performed the duties as Ward Rationing Officer from any earlier date, his appointment could not be notified from any such date nor would be entitled to emoluments for the period for which he had not worked against the higher post.
6. As provided in rule 10(1) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975, seniority is to be determined from the date of regular appointment. Regular appointment is distinguished from adhoc appointment defined in Section 2 of the Said Act as appointment not made in accordance with prescribed procedure. The prescribed method of appointment laid down in 1974-rules is by three modes: namely initial recruitment, promotion or transfer. However rule 9
(a) of the 1974-Rules operates as exception to the above modes of appointment and may appropriately be called as fourth mode of appointment. Seniority of person appointed under rule 9
(a) is to be determined in accordance with clause (iii) of the proviso following the said rule. Clause
(iii) of the said proviso reads as under:
(iii) Seniority of such persons in the new cadre shall be reckoned from the date of appointment in that cadre."
7. Keeping in view the requirements of this clause the appellant's seniority in the new cadre of Ward Rationing Officer was to be reckoned from the date of his appointment in that cadre. Appellant was inducted in the new cadre.Of the Ward Rationing Officer on 17th March, 1984. Accordingly his seniority in that cadre has been correctly determined from the said date. Thus the appeal has no force even on merits.
For above reasons the appeal is dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 29th day of January, 1989 at Karachi.