JUDGMENTJUSTICE (RTD) MUNAWARALI KHAN (CHAIRMAN) This case raises a dispute of seniority between appellant, Maqbool Talpur and respondent Sirajul Haq Qazi, (hcrinafter referred as the private respondent). Both these officers started their service career in the planning and Development Department, Government of Sind; the former as Research Officer and the latter as Progress Officer. In the Seniority list of Assistant Chiefs/Economic Analysts, issued by the said Department, on 16th May, 1978, the appellant was assigned the first position above the private respondent whose name appeared at Nos: 2 in the said list. However, on representation made on 12.4.1983 by the private respondent, the S&GAD vide its U.O.No: SOI(S&GAD)-6/21/83, dated 23rd May, 1983 (hereinafter referred as the impugned order) disturbed the appellant's seniority showing him junior to the private respondent. On learning about the impugned order, the appellant first took up the matter with his own Department namely P&D Department vide his representation dated 9th July, 1983. As it remained un- responded, he approached the Chief Secretary in his representation dated 26th October, 1983. In reply to the latter representation the appellant was informed vide S&GAD's letter dated 24th November, 1983 that his representation had been rejected. We challenged the said reply in departmental appeal filed before the governor/MLA Zone 'C' but that too was dismissed vide P&D Department's letter dated lst November, 1984. Having thus failed to obtain the desired relief at the above departmental forums, the appellant ultimately filed the present service appeal before this Tribunal.
2. Briefly stated the appellant's case is that his initial appointment as Research Officer (Planning Officer) in the P&D Department, was regularized w.e.f. 28.8.1970 vide the said Department's notification dated lst March, 1975, though the similar appointment of the private respondent was never regularized. By order dated 12.7.1973 the appellant was appointed as Economic Analyst on Adhoc basis in Price Stablization Board of the P&D Department (hereinafter referred as the Board).
Following the upgrading of the post of Economic Analyst from Grade-17 to Grade-18, the appellant was allowed to continue in the upgraded post though on purely temporary and adhoc basis.
Subsequently on recommendations of Sind Public Service Commission his appointment as Economic Analyst (Grade-18) was regularized w.e.f. 6.5.1975. Thereafter the appellant proceeded for training abroad and on return from there he assumed the charge of Assistant Chief (Grade-18) in the P&D Department w.e.f. 12th July, 1976, vide P&D Department's notification dated 29.7.1976. In the meantime the private respondent had been appointed as Assistant Chief in the said Department.
Since then appointment as Assistant Chiefs was on probation, as indicated in P&D Deparment's notification dated 9th October, 1978, the appellant's period of probation was terminated from 5.5.1978 whereas that of the private respondent came to an end w.e.f. 17.5.1978. Both the appellant and the private respondent were then entrusted with additional charge of Chief of Section for certain period and were given additional pay for the said period. They were finally promoted an 28.8.1978 as Chief of Sections in Grade-19 after due clearance by the relevant Selection Board.
Meanwhile seniority list of Assistant Chiefs/Economic Analysts (Grade-18) was published on 16.5.1978, wherein the appellant was shown senior to the private respondent. But as stated above the appellant's seniority was subsequently tampered with as result of which the appellant came up in the present appeal.
3. On request of the appellant's counsel he was permitted to put in written arguments. We also gave opportunity to the learned AAG for making his submissions and he mostly relief upon the material contained in the written statement filed on behalf of official respondents. Although the private respondent did not turn up to make his arguments, his version of the case was available to us, in the form of the written statement filed by him. We have carefully gone through the entire written material including all the relevant documents available on record.
It may be pertinent to reproduce hereunder the impugned order dated 23rd May, 1983:"Addl.
Secretary P&D Dept.May please refer to rep. Dated 12.4.1983 of Mr.Sirajul Haq Kazi, Chief of Section, forwarded to this Department by ACS on 21.4.1983, on the above subject.
2. The matter has been examined in consultation with the Law Dept, and the contention of Mr.Kazi that the price Stabilization Board is a separate entity and, therefore, the post of Economic Analyst cannot be merged with that of Asst. Chief for the purpose of drawing up of a consolidated Seniority List, has been accepted. Accordingly the name of Mir Maqbool Talpur, Economic Analyst may be deleted from the Seniority List of Assistt. Chief to be eligible for promotion as Chief of Section.
Therefore, it follows that M/s. Sirajul Haq Kazi and M.S Abbasi would rank senior to Mir Maqbool Talpur in the Seniority List of Asst. Chief/ Chief of Section.
3. Mir Talpur who was Economic Analyst in the Price Stabilization Board may either be reverted to the Board now functioning as a part of Bureau of Supply and Prices or he may be considered for appointment as Assit. Chief/Chief of Section by transfer under Rule 8 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 by placing the matter before the concerned DPC/Selection Board. If the second alternative is followed he will count his seniority in the cadre of Asst. Chiefs/Chief/of Section from the date the competent authority will approve his appointment by transfer.4. Further action may kindly be taken accordingly under intimation to this Department."4. Obviously the above order sought to disturb the intense seniority of appellant vis- a-vis the private respondent/reflect in the Seniority List of istant Chiefs/Economic Analysts issued by the P&D Department, on 16th , 1978. It is also clear from the impugned order that it was passed on esentation of the private respondent made on 12.4.1983. The question arose the private respondent was sleeping over the matter for nearly five years. If as not satisfied with the entries in the seniority list he should have challenged same in time i.e. Within 30 days of issuance of the list.
No explanation is ~oming form him, as regards such inordinate delay. Even the impugned order tally silent on the point as to why the time-barred representation of the te respondent was entertained and what factors or justification compelled the rtmental authorities to reopen the case and condone the long delay of fiveyears. It is not disputed that the seniority list referred to above was preceded by provisional seniority list whereby objections were invited from all those officers who felt aggrieved by the entries made in the said list. Admittedly the private respondent did not avail the opportunity as he did not file his objections. In other words he accepted the appellant's seniority over him. The seniority list was ultimately finalized and issued on 16th May, 1978. With issuance of final list the private respondent got fresh opportunity to challenge it but for the reasons best known to him to remained indifferent as before. At the stage of publication of final seniority list he could have even come to this Tribunal.
5. The record shows that if the private respondent were vigilant, he could agitate against the appellant's appointment as Assistant Chief and his consequent seniority in that capacity even on several other occasions. He had a cause of grievance for the first time when by P&D Department's notification dated 9th October, 1978 his period of probation as Assistant Chief was terminated w.e.f.
5.5.1978, indicating thereby that the appellant was to rank senior to him. Again they were both entrusted with additional charge of Chiefs of Sections and were paid for the said charge. Ultimately they were promoted as Chiefs of Sections by same notification dated 28.8.1978 wherein appellant's name was mentioned above his name. The private respondent all along remained unconcerned as if he had accepted the appellant to be senior to him. Despite such gross indifference to the question of his seniority exhibited by the private respondent, it was not understood why he made a sudden about-turn and after lapse of nearly five years he came out with a belated representation against the appellant's seniority which by then had become a closed chapter. According to the appellant he came to know about the same representation from his own sources, as he was neither served with an official notice nor was afforded opportunity of personal hearing. This allegation has gone unchallenged. There is no indication in the impugned order either that the appellant was in any manner apprised about the representation of the private respondent.
Accordingly we have no doubt that the impugned order was a unilateralscheck decision made in absence of the appellant and behind his back. We also see no justification for condonation of five years's delay in reopening the case of the seniority between the parties. On this sole ground, the appeal could be accepted. However, we would also like to discuse other aspects of the case.
6. As regards the objection of limitation raised by the private respondent, it is rather amusing that the person who was himself sleeping over the matter for five long years and got the case reopened by making belated representation had the check to accuse the appellant for the delay in filing this appeal. Never-theless we have considered the objection of limitation in the back ground of the case. As pointed out above the appellant was not given any notice about the representation of the private respondent which was decided in his absence and behind his back. As soon as he came to know about it from his own sources, he first sounded his own Department namely P&D Department.
Since h got no reply from that Department he approached the Chief Secretary. It wa after the S&GAD by its letter dated 24th November, 1983 informed him that representation had been rejected, he filed departmental appeal before the Governor/MLA,Zone 'C'. After said appeal was dismissed vide Department's letter dated lst November, 1984 the appellant, filed the present appeal before this Tribunal on 1.12.1984. In these circumstances we see no reason to hold the appeal as time-barred.
7. On merits of the case first of all we have to see if with his appointment as Exonomic Analyst in the Board, the appellant ceased to be employee of the P&D Department and further whether his subsequent appointment as Assistant Chief in the P Department was not in order. As stated above the appellant was appointed as Economic Analyst (Grade-17) in the Board by transfer.
Subsequently the said post was upgraded to Grade-18 and the appellant was allowed to continue even in the upgraded post though on adhoc basis. After he was cleared by the Sind Public Service Commission, the appellant's appointment as Economic Analyst (Grade-18) was regularized. It was from that post that he went abroad and on return from there he returned to his parent Department (P&D Department) and appointed in the equivalent post of Assistant Chief (Grade-18).
8. The plea taken by the private respondent in his written statement is that the Board was a separate entity and as such the post of Economic Analyst could not be equated or interchanged with the post of Assistant Chief. Similarly the written statement filed on behalf of the official respondents shows that"the Board had separate budget with separate staff'. As against these contentions the appellant's submission is that post of Economic Analyst was created in the P&D Dept, and therefore its more utilization in the Board neither altered the status of the post nor in any manner affected the service conditions of its holder namely the appellant. Accordingly to him the Board was part and parcel of the P&D Department, as it had no independent existence as statutory or autonomous body. In order to appreciate the above views of the parties with regard to the status of the board, it may perhaps be useful to look into the document of its creation. It was created by the P&D Department's notification No:SO(DEV)-3-6/70, dated 30th October, which reads as under: "The Governor is pleased to constitute, with immediate effect, the Sind Price Stabilisation Board, its composition, functions and Powers shall be as under:COMPOSITION1. 2. #tbs3. Chairman4.
Member.5. Member.6. Member.7. Member.8. #the9. Development Commissioner, Sind.10. Secretary, Planning & Development Department.11. Secretary, Industries Commerce & Mineral Resources Department.12. Secretary Agriculture, Food & Co- Operation Department.I13. Director of Industries, Sind.14. Director of Food, Sind. Member.15. Chief Industries, Section, Flanning & Member/Secretary.
Development DepartmentFUNCTIONS & POWERS.1. To Declare commedities, according to the needs and circumstances, as essential commodities.2. To keep under constant review, the supply and distribution position of essential commodities, take necessary measures to minimise profiteering and maintain reasonable price at both wholesale and retail level and to communicate with the Government of Pakistan in that behalf, whenever necessary.3. To order submission and collection of data relating to production, purchase, stocks, sales and cost structure of essential commodities.
4. To issue directives considered appropriate in the case of selected essential commodities to prevent arbitrary price rise.
The planning and Development department shall function as Secretariat of the Board.The Governor is further pleased to declare the Director of Industries, Sind as controller General of Prices who shall exercise all pours under the Essential Articles Control Act, 1958 as ammended from time to time."
9. It would appear that Board was set up by an administrative order. It was not a creature of law.
The powers arid function assigned to the Board were only confined to keeping a vigilant eye on essential commodities so as to ensure their availability at reasonable prices. For carrying out its functions, the Board was made entirely dependent upon the P&D Department. The Board was not invested with powers to recruit officers and staff for its own requirements. Instead the P&D Dept was to act as Secretariat of the Board. Thus the officers and staff the P&D Dept had man the Board.
In other words officers and staff appointed posted in the Board were interchangeable with those of the P&D Department.
10. Apart from above the post of Economic analyst was not only created by the P&D Department but also the funds required for it were obviously provided, as part of the budget of the said Department. Even if the amount required for the Board was earmarked in the budget, independently of the budget allocations of the P&D Department yet such action by itself would not render the Board as independent body. It is also not the case of the private respondent that the Board was an independent organization. All that he has said is that it was a separate entity. Of course it acted as a separate institution to perform he specified functions but not as an independent or autonomous body. Form the above appraisel we are convinced that the Board did not enjoy any independent or autonomous status, though it was kept as separate body so that it could devote its undivided attention to the function entrusted to it. By such separation the Board could not be held to be independent of P&D Department. Since the Board had no power to create posts or recruit officers/staff, against any such parts, the P&D, Department was obviously performing this fucntion for the Board. Consequetly we are of the view the posts created for the Board and officers and staff appointed against them basically belonged to the P&D Department.
Accordingly we have not been able to persuade ourselves to agree with the view taken in the impugned order Since the Board had no independent or autonomous existence and was part of the P&D Department the post of Economic Analyst created for the Board actually belonged to the said Department. The appellant's appointment to such post was in the nature of only a transfer from post of Research Officer (Grade-17) to the post of Economic Analyst (Grade-17) within the same Department. By the time he was posted as Assistant Chief in the P&D Department, he had already been regularized in the post of Economic Analyst in equivalent Grade-18. His that posting was also nothing more than a simple transfer. Therefore we see no legal flaw in the appellant's appointment, first, as Economic Analyst in the Board by transfer from the equivalent post of Research Officer in the P&D Department and later Assistant Chief in the said Department by retransfer again from equivalent post of Economic Analyst in Board particularly when as pointed out above the Board had no independent existence but was a past of the P&D Department.
11. No doubt as required by rule 9 (1) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975, separate seniority lists were to be drawn up for the posts of Economic Analyst and Assistant Chief. Since the appellant had been inducted in the post of Assistant Chief by transfer w.e.f. 12th July, 1976, much before the publication of the seniority list on 16.5.1978 his name could appear in the said list of course as Assistant Chief. As pointed out above his period of probation in that capacity had been terminated earlier than that of the private respondent.
Consequently he became eligible' for confirmation before the said respondent and hence was senior to the private respondent even as Assistant Chief.
For above reasons there was absolutely no legal justification to reopen the question of intense seniority between the appellant and the private respondent. Accordingly we allow the appeal with no order as to costs and direct that the appellant's seniority assigned to him in the seniority list issued on 16.5.1978 stands restored.
Given under our hands and the Seal of this Tribunal on this 25th day of Aeptember, 1989 at Karachi.