1. MUNAWAR ALI KHAN (CHAIRMAN).--By this judgment we propose to dispose of two appeals No, 29 of 1988 filed by Mr. Ghulam Rasool and No, 30 of 1988 filed by Mr. Faiz Muhammad. The issues involved in these appeals are identical. The appellants are Primary Teachers serving in Larkana District. They began their service career in other districts: appellant Ghulam Rasool was appointed as Primary Teacher at Karachi on 21-8-1951 whereas appellant Faiz Muhammad was inducted in the such post in Sanghar District on 5-7-1954. They were subsequently transferred to their home District, Larkana.
2. Appellant Ghulam Rasool resumed his duties in the said District on 18-10-1958 and appellant Faiz Muhammad joined there on 8-4-1964. Their seniority vis-a-vis other Primary Teachers of Larkana District was computed from the dates of their initial appointment.
3. As disclosed by appellant Ghulam Rasool in his memo. of appeal; his name appeared at S.No, 782 amongst the S.V. Teachers in the seniority list of 1970 vide Letter No, 15050-57; dated 7-2-1970 of District Inspector of Schools, Larkana. Following the creation of sub-divisions in 1972, fresh seniority list prepared at the sub-divisional level reflected his name at S.No, 272. Thereafter, in the three seniority lists issued one after the other in 1986, and in February and March, 1987 the name of the said appellant was placed at S.Nos, 24, 17 and 13 respectively. On the basis of seniority so determined, he was also awarded selection grade in NPS-12, as his name was included in the batch of 15 teachers, who were allowed that benefit seniority-wise vide Order No, 5707-08, dated 5-4-1987 passed by District Educational Inspector, Larakana. The appellant Ghulam Rasool enjoyed the benefit of the Selection Grade froth April, 1987 to January 1988 whereafter revised Order No, 10047- 48, dated 1-2-1988 was issued by which his name was removed from the list of awardees of the Selection Grade. Aggrieved by the said order, he preferred departmental appeal to Director of Education, Sukkur but the same was rejected on the ground that the appellant's seniority would count from the date of his posting in Larkana District. Having exhausted departmental remedy, the appellant brought his case to this Tribunal.
4. The case of appellant Faiz Muhammad is, vide his memo. of appeal, that his seniority position amongst the S.V. Teahcers of Larkana District was fixed for the first time, in seniority list of 1970 wherein his name appeared at S.No, 588, as per District Inspector of Schools' Letter No, 15050-57, dated 7-2-1970. In 1972 when sub-divisions came into being, fresh seniority list was drawn up at the sub-divisional level, in the year 1983-84 and the appellant's name was placed at S.No,43.
5. Thereafter, another seniority list was issued in February 1987 in which his name moved to first position. However, in the seniority list issued in the following month of March, 1987, his name was brought down from S.No, 1 to S.No,
78. Accordingly he was denied the benefit of selection grade that was allowed to his juniors vide District Education Officer's Order No, 5707-08, dated 3-4-1987. The appellant challenged the said order in appeal before the Director, Education, Sukkur but without any success. He ultimately filed the present service appeal.
6. We heard the arguments of the learned counsel for the parties and also went through the relevant record available to us.
7. The facts stated above are not denied. However, the contention raised on behalf of the official respondents was that as per rules as well as Government policy, the appellants' seniority in the Larkana District would count from the dates, they joined service in that District and not from the dates of their initial appointment in other Districts. But the learned Government counsel who was assisted by the departmental representative Mr. Hadi Bux Larik, S.D.E.O. Larkana was unable to show us any rules or any written Government policy said to be in vogue at the time of the appellants' transfer to Larkana District. In fact the seniority of the appellants was altered to their detriment sometime in 1987/1988, when like other civil servants, they were governed by the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, hereinafter referred to as the Seniority Rules. Rule 12 of the Seniority Rules which is pertinent to the point in issue before us is reproduced as under:-- "12. If an appointment is made by transfer: (a)a person appointed otherwise than on his own request shall, for the purpose of determining his seniority, be given the benefit of his regular service in other post or posts held by him before his transfer and appointment to new post: Provided that if the regular appointment is made in a batch or on the same day, the older in age shall rank senior to younger in age; (b)a person appointed on his own request shall rank junior to all other persons appointed before him on the regular basis and the persons appointed with him in the same batch or on the same day by promotion or initial recruitment; (c)the inter se seniority of persons appointed on their request in the some batch or on the same day shall be determined in accordance with their respective dates of regular appointment in the posts held by them before their transfer and appointment to the new posts; provided that if the dates of their regular appointment in such other posts are same, the elder in age shall rank senior to the younger in age."
8. Although above rules came into force in 1975, yet the principle laid down therein has generally been followed all the time in one or the other shape. According to above rule, if the transfer is made otherwise than on request of the transferee, the latter shall get the benefit of his regular service in other posts held by him before his transfer and appointment to the new post. It is not the plea of the official respondents that the appellants were transferred to Larkana District on their own request. On the contrary it is disclosed in the appellants' memos. of appeals vide para. 2 of appellant Ghulam Rasool's appeal and para. 3 of appellant Faiz Muhammad's appeal--that they were transferred to Larkana District under the orders of Government. This assertion on the part of the appellants has been admitted in the written statements filed on behalf of the official respondents. Moreover, it was conceded in course of the arguments by learned Government counsel after verifying from the Departmental Representative present in the Court. that it had been the consistent policy of the Government to accommodate Primary Teachers as far as possible in their home district. Larkana District is admittedly appellants' home District. Therefore, it appears to us that their transfer to Larkana District was in keeping with the said equitable policy cf the Government. May be the appellants had given their consent for their transfer to Larkana District.
9. Their consent for transfer could not by any stretch of imagination, be confused with "their request for transfer". In any case it was not established from the record that the appellant's transfer to Larkana District was made on their own request.
10. Having arrived at the above conclusion, we see no justification in denying the appellants the benefit of their previous service in other districts. They had actually been extended such benefit, as they had been assigned seniority position in accordance with their dates of initial appointments in all the seniority lists issued from time to time subsequent to their transfer to Larkana District.
11. According to appellants, first seniority list of S.V. Teachers was issued in 1970. Again after creation of sub-divisions in the District, another seniority list appeared in 1983-84. The third seniority list, they have added, was published in February 1987. The appellant Ghulam Rasool was even allowed the Selection Grade in NPS-12 on the basis of the said seniority list which he enjoyed upto January, 1988.
12. It was by revised order dated 1-2-1988 that his name was excluded from the list of awardees of the selection grade and the same was withdrawn from him. As for appellant Faiz Muhammad, although his name appeared at first position in the seniority list issued in February 1987, yet in the subsequent seniority list issued in the following month of March 1987, his name was brought down to S.No,
78. Consequently his juniors were awarded the selection Grade.
13. Obviously in case of appellant Ghulam Rasool, his seniority was disturbed after he had enjoyed acceptable seniority position in Larkana District for nearly three decades. So far as appellant Faiz Muhammad is concerned, his seniority position was altered after he enjoyed the benefit of correct seniority for over two decades in the said District. The question arose who awoke the concerned authorities from their deep slumber of decades, so that the relevant Government policy and rules about fixation of correct seniority position of the appellants started floating in their mind. None of the teachers serving in the District was shown to have agitated against the seniority of the appellants. Even the authorities' memory was not so sharp that they could confidently lay hands on any specific Government policy or the rules in support of their arguments. In any case after enjoying particular seniority position for decades, the appellants acquired some right over it. They could not be divested of the same by a single stroke of pen and without giving the appellants opportunity of showing cause against the proposed action. It was conceded at the bar that prior to disturbing the seniority position of the appellants they were not given any show-cause notice. Thus, they were afforded no opportunity of furnishing their explanation. Surely the authorities could not take such action unilaterally.
14. For above reasons we are of the view that the impugned action of downgrading the appellants' seniority in their home district Larkana was capricious, arbitrary and amounting to unnecessary harassm ent to poor teachers. Consequently it was not legally sustainable. We accept the appeals with no order as to costs and restore the appellants' seniority as it existed prior to passing of all the impugned orders.