Judgment MOBEEN AHMAD KHAN, MEMBER.-This appeal has been directed against the order of Chief Secretary Government of Sindh Bearing No.SO(E- 1) 10/ 25-78 dated 30th September, 1986 under which the request of the appellant Mr Jamil Ahmed Khan, Assistant Professor was refused protection of Seniority under rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. The above order of Chief Secretary Government of Sindh was communicated to the appellant on 6.11.1986 by the Principal Government College Hyderabad.
2. The relevant facts of the case are that the appellant was initially appointed on adhoc/temporary basis as Lecturer on 26.9.1963. His appointment as Lecturer was however regularised w.e.f.
28.10.1967. On lst March, 1975 Government ' of Sindh Education Department issued a provisional seniority list and assigned the appellant position at S.No. 175 in the said list. According to this seniority list respondent No.2 to 268 who had also joined same service as lecturer were occupying a junior position in the seniority list.
3. In September, 1974 when the appellant was posted as Lecturer in Chemistry in Government College Sanghar he received an offer of appointment with the Nigerian Govt. The appellant vide Government of Sindh Notification No. SO(E-III) l/J-1/74 dated 9.9.1974 was allowed to resume the new assignment and was accordingly relieved of his duties w.e.f, the date of relinquishment of his charges (Annex.B). By the said order the appellant was directed that while on deputation "He shall have to pay the contribution towards pension, leave,salary, GP Fund, Benevolent Fund etc. To the Government of Sindh in accordance with the relevant rules in Foreign exchange if he wants the rete-ntion of his lien in his parents institution under the Directorate of College Education Hyderabad."
4. In pursuance of the same the appellant, continued to serve with the Nigerian Govt, when on 28.1.1979 for the first time he was directed in writing by the Education Department Government of Sindh to report for duty. This letter of the Govt, as contended by the appellant was not received by him because of defective address since the name of destination was shown as KATSIRO instead of KATSINA. However it appears that subsequent communication dated 28.11.1979 on the same subject was received by the appellant. The Education Department Government of Sindh however on the request of the Principal KATSINA College Nigeris extended his deputation upto 31.7.1980 as a special case though the appellant had approached for extension upto 31.12.1980 on the ground that the contract of employment with Nigerian Govt, was to expire on 30.9.1980 and after that he needed three months more to arrange shifting and to perform Haj while returning to the Home Country. The appellant however continued staying at Katsina (Nigeria) since on return to Pakistan he resumed duty as Lecturer on 28.1.1982.5. During this intervening period i.e. From 31.7.1980 to 31.12.1981 neither any disciplinary action was initiated against the appellant nor any formal order of extension of his deputation period appears to have been issued. The appellant was issued a showcause notice on 3.1.1982 at his Katsina (Nigeria) address for his unauthorised continuation of service with the Ministry of Education, Lages, since his request for further extension of deputation by two years was turned down by the Education Department, Government of Sindh. The appellant, however on return from deputation, was allowed to resume duty on 28.1.1982 pending disciplinary action against him.
It appears, that due to the liberal policy of deputation on Govt. To Govt, basis and to boost foreign exchange earnings through repatriates, the charge of unauthorised ever stay abroad was not attached any severity and the appellant was imposed miner penalty of censure only under Government of Sindh Education Department notification dated 5.3.1983 which was received by him on 17.3.1983. The appellant represented against this penalty to the Chief Secretary, Govt, of Sindh on 12.4.1983. Though a period of about 6 years have elapsed, no decision on his representation is alleged to have been taken so far. However a favourable inference could be drawn from the fact that this had neither obstructed his promotion nor was considered a disqualification when the Selection Board, cleared him for elevation to B.S. 18 on regular basis, vide Government Notification dated 29.1.1984. The said notification of the appellant's promotion to B.S. 18 as Assistant Professor was however silent with regard to the protection of his seniority in B.S.18 as against several those who were juniors to him but promoted earlier to the appellant. His request for protection of seniority in B.S. 18 under Rule 13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter to be referred as Seniority Rules, 1975) was finally rejected by the Chief Secretary by his order dated 30.9.1986 received by the appellant on 6.11.1986.
I have heard the arguments of Mr.Naimatullah Qureshi the counsel of the appellant and Mr.Ahmed Khan Barakzai the State Counsel on behalf of official respondents I have carefully perused the record with their assistance. In my view, the following points needed determination.
(i) Whether the appellant had proceeded to Nigeria to join the service with the Ministry of Education; Lages (Nigeria) on deputation with the approval of the competent Authority in the Government of Sindh.(ii) Whether the Provincial Government had ordered certain promotions of the lecturers as Assistant Professors in B.S.18 junior to the appellant inclusive of those who were on deputation abroad or with the Federal Government.(iii) Whether the appellant has been discriminated when Government considered identical cases of promotion in absentia and ignored his for no obvious reasons.(iv) Whether the Chief Secretary by his order dated 30.9.1986 has competently rejected his appeal/departmental representation dated 13.2.1984 which was addressed to the Governor and Martial Law Administrator Zone 'C' Sindh.(v) Whether the appellant is entitled to the protection of Seniority under Rule 13 of the said Seniority Rules, 1975 and if so far what reasons.
The issue No.1 is a point of fact and has not been disputed by the Government respondent. The Government notification dated 9.9.1974 under which the appellant was allowed to be relieved to join his new assignment in Nigeria inter alia directed the appellant to comply the following.
"Mr.Jamil Ahmad Khan (Lecturer in Chemistry, through the Principal, Govt. College Sanghar, MrJamil Ahmed Khan, shall have to pay, contribution towards pension, leave salary, G.P .Fund, Bev. Fund Etc. To the Govt, of Sind in accordance with relevant rules in foreign exchange, if he wants the retention of his lien in his parent institution under the Directorate of College Education, Hyderabad.
6. The appellant in pursuance of the same, during his deputation to Nigeria paid up all his dues outstandings against him towards pension, contribution, G.P.Fund, Leave salary etc. In foreign exchange as is irrefutably established from the letter No.PC/10(A)l/219-220 dated 15.8.1982 of the Assistant Account Officer, Ministry of Foreign Affair, Islamabad addressed to the Accountant General Sindh, Karachi (Annex.B-1). This letter clearly mentioned that the appellant deposited his pension, contribution at the rates communicated to him by the A.G.Sindh for the entire period of deputation viz from 14.9.1974 to 31.1.1982.
As regard issue No.(ii) the same is an admitted fact that while the appellant was on deputation abroad, and holding lien as lecturer in the Education Department Govt, of Sindh, a large number of lecturers in B.S. 17 were promoted as Assistant Professor in B.S. 18 on different dates.
7. These promotions were effected as result of re-organization of the Sindh Education Collegiate Service in 1978 according to which the strength of Professors/Assistant Professors and Lecturers were fixed to the ratio of 1:2:7. In consequence of this re-organisation 254 posts of lecturers were upgraded on the basis of seniority-cum-fitness. In the first instance 203 lecturers were upgraded as Assistant Professors grade 18 vide Sindh Government Notification dated 10th June, 1978(Annex.
E). Out of these 203 lecturers who were promoted as Assistant Professors, as per the seniority list issued on 1.3.1985- a position which has been conceded by the Government Counsel. None of these lecturers who are joined as private respondents, have challenged the above position as asserted by the appellant.
8. Thereafter again 72 lecturers were promoted on different dates viz: 33 lecturers by notification dated 3.6.1979, 14 lecturers by notification dated 12.1.1981, and 4 lecturers by notification dated 28.7.1981 and 216 lecturers by the notification dated 30.10.1983. All these lecturers are placed junior to the appellant in the Seniority List of 1975 and are cited as respondents in the memo of appeal.
In the ordinary course a regularly appointed incumbent when proceeds on deputation with condition to return to the parent Department on exprity of the specified period, retains his seniority in tact unless he had incurred some disqualification to that effect. The appellant's position in seniority list of 1975 has been admitted in the written statement submitted on behalf of the Govt, respondents and none of the private respondent has either filed any written statement to controvert the contention of the appellant nor appeared to show any interest to contest and defend their seniority position vis-a-vis the appellant on any date of hearing. This tantamount to the admission of the contention of the appellant by the private respondents.
9. As regards issue No.3, it is relevant to note that Government of Sindh Education Department considered the promotion cases of a large number of lectureres as per the seniority list of 1975 and amongst them included following lecturers who were on deputation abroad or with the Federal Government. The Govt, did not deem it necessary to defer their cases till such time they are rcpartiated to Government of Sindh for posting in their parent department.
LIST OF LECTURERS PROMOTED IN ABSTENTIAa) Government of Sindh Netification (Education Department) No.SO (E-l)- 10/25-78-C, dated 10.6.1978.S.No. Of Name of the lecturer. Employment status8 Mr.Mohammad Isamil Birohi Lecturer in Chemistry Govt. College, Lyari Kye. On study leave.24 Mr.Mohammad Latif, Lecturer in Sociology Govt. College, Larkana. On deputation to Federal Govt.25 Syed Husan Raza Jafri Lecturer in Geography Govt. College, Hyderabad. On deputation to Nigeria.27 Mr.Ghulam Mustafa Awan, Lecturer in Economics, Govt.College, Sukur. On deputation to Federal Govt.30 Mr.Ali Akbar Qureshi Lecturer in Maths. Govt. College, Dadu. On deputation to *194 Syed Mohammad Kazmani, lecturer in Physics, Govt. Sup. Science College, Khairpur. On study leave.195 Mr.Mohammad Tahir Qureshi, Lecturer in Zoology, Govt. College,Tando, Mohammad Khan.
On deputation to Federal Govt.196 Sayed Waqar Ali, Lecturer in Physics, Govt. College, Sukur. On deputation to PAF.197 Dr Abdul Sammad Siddiqui, On deputation toLecturer in Ecomomics, Govt.
P.I.D.C.College, Hyderabad.In the concluding para of the notification, it was made clear that "these promotions are ordered subject to examination of the claims of any from indvidual officers senior to the promotees, or such officers whose claim might not have been considered.(6) Govt, of Sindh ^Education Department-) Notification NO.SO-fE-ll - 10/25-78tcl dated 3.6.1979.I6. Sahib Khan Channa Lecturer, in On deputation asPolitical Science, Govt. College, Larkana. Director or Archieves29. Abdul Wasi Qureshi Lecturer, On deputation to FederalGovt. College Dadu. Govt.30.
Roshan Ali Shaikh Lecturer in Physics Govt. College, Larekana. -do-
10. Apparently I do not see any reason which obliged the Govt, in the Education Department to ignore the case of the appellant who was also on deputation like those twelve mentioned in the above. It could not be shown to us by the respondent Department as to how the case of the appellant was different and distinguishable from other cases in which promotion was allowed. At the time, the above promotions were considered, appellant had not incurred any disqualification.
Had the appellant been considered in 1978 and again in 1979, he would have been promoted to grade 18 as Assistant Professor in absentia like others. As consistently laid down by the superior courts, even in respect of purely administrative acts, there is duty to act justly, fairly and reasonably. In view of this position we have no hesitation to observe that the appellant was discriminated to the extent discussed in the above.
As regards issue No.(iv) the legal position as asserted by the counsel of the appellant merited consideration. As provided under Rule 4 sub rule (i) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Chief Minister was the appointing Authority for Grade 17 and above. In the amended rules notified on 11th February, 1985, Chief Secretary has been made the appointing Authority for posts sanctioned in B.S.18. Again as per Rule 3 of the Sindh Civil Servants (Appeal) Rules,1975, Chief Minister is the authority competent to hear appeals and entertain represantation against the order of the Chief Secretary.
11. In view of the above legal position the appellant has rightly made appeal/departmental representation to the Governor and M.LA.Zone 'C', since there was no elected Govt, in February, 1984.
Martial Law was lifted on 31.12.1985 and as such the representation addressed to M.LA. Zone 'C' was then to be attended by Chief Minister who was very much available on 30.9.1986-the date 'vh I the representation was "Considered bv the Chief Secretary and r The counsel of the appellant argued that the then Chief Secretary, Govt, of Sindh should not have sit on Judgement against his own orders and as such while rejecting the representation of the appellant, he had acted without jurisdiction. The impugned order thus passed in violation of the rules cited above, is bad in the eyes of law. Mr. Ahmad Khan Barakzai, the State Counsel endorsed the views of the Counsel of the appellant and suggested that the case may be remanded back to the Govt, for suitable orders of the competent authority viz the Chief Minister in the instant case. In view of the above discussion, the objection of the Appellant's counsel which is conceded by the counsel of the Govt, respondent, is sustained.Incidently no law/rule/Govt. Policy was shown to indicate that disciplinary action initiated on a date much subsequently to the date when the promotion had become due, could be considered a bar for the normal seniority and other consequential benefits available to the appellant under the rules.
12. In the instant case the appellant like others was entitled to the promotion as Assistant Professor in B.S.18 in absentia firstly in 1978 and then in 1979, whereas the disciplinary action was initiated against him in 1982. Further the penalty of censure awarded to the appellant was not a bar for to his promotion when on the recommendation of the Departmental Promotion Committee, the appellant was promoted in Grade 18 as Assistant Professor on 29.1.1984. This being the position why penalty Censure imposed in 1983 should have an adverse impact on an entitlement which fell due to him in 1978 and 1979. I am also not persuaded with the suggestion that the case be remanded back for decision by the competent Authority in view of the earlier cited legal position since it would simply to prolong the appellant ageny of litigation specially in the circumstances when none of the private respondent has contested his claim of seniority.
13. For the foregoing reasons, I accept the appeal with no order as to costs, and further direct that the appellant shall be allowed seniority from the date his juniors have been promoted with consequential benefit admissible under the rules.
Given under my hand and the seal of this Tribunal this 10th day of June,