1. MUNAWAR ALI KHAN (CHAIRMAN).---This appeal has been filed by Mr. Ayaz Ali Memon, Director Agricultural Extension, Hyderabad, raising the question of his seniority vis-a-vis that of the respondent Mr. Khair Muhammad Soomro (hereinafter called said respondent) in Grade-19. Consequent upon his selection by the Public Service Commission the appellant was inducted in Grade-18 on 1st March, 1978. The said respondent, however, entered the same grade earlier on 10-1-1975 as Deputy Director on adhoc basis. His promotion in Grade-18 was regularized w,e,f, 8-4-1979. Thus, though the appellant was senior to the said respondent in Grade-18, yet the latter was promoted first to Grade-19 vide S&GAD's Notification, dated 2nd July, 1983. The appellant's promotion to the said grade took place subsequently on 27th December, 1985. After his promotion to Grade-19, the appellant made an attempt to improve his seniority, vis-a-vis his juniors including the said respondent in Grade-19 by making representation to the Chief Secretary through proper channel. It was prayed by the appellant in his representation that he may be given pro forma promotion retrospectively from the date his juniors were promoted to Grade-19. His request was turned down and he was informed through Director- General Agriculture Extension vide Agriculture Department's letter dated 8-12-1989 that he had been assigned seniority in Grade-19 w,e,f, 17-1-1985. It is against this order that appellant has come to this Tribunal in the present appeal.
2. We heard arguments of the learned counsel of both the parties and with their assistance we also went through the necessary record.
3. The appellant's prayer is that he may be declared senior to the said respondent in Grade-19. It is an admitted position that the appellant was senior to the said respondent in Grade-18. As provided in sub-rule (1) of rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred as Seniority Rules) the Seniority of a civil servant shall be reckoned from the date of his regular appointment. According to subsection (2) of section 2 of the Sindh Civil Servants Act, 1973, appointment on regular basis is that which is made in the prescribed manner, i,e, in accordance with the rules. Sub-rule (3) of rule 7 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 provides that appointment by promotion and transfer to post in Grade-18 with special pay and above shall be made on the recommendations of the Provincial Selection Board. In view of the above legal requirement, we have to see if the promotion of the appellant and the said respondent to Grade-19 was made on recommendations of the said Board and if so on what dates that promotion took place.
4. It is the appellant's own admission, vide paras. 4 and 5 of memo. Of his appeal that the meeting of the Provincial Selection Board II was held on 16th May, 1983 for making selections for promotion to Grade-19, but in that meeting he was ignored for the promotion as he had not yet completed the required tenure of service in Grade-18, in compliance of the formula applied by Board for making selections. According to the formula mentioned in para. 4 of the memo. Of appeal, the candidate would be eligible for promotion to Grade-19 if he had at least 12 years service in Grade-17 and above, if promotee, and at least 7 years service in Grade-18, if direct recruit. As the appellant was inducted in Grade-18 by direct recruitment in 1978, he obviously did not qualify for the promotion, because by the date of the Board's meeting he had (not) completed 7 years' service in Grade-18. On the other hand the said respondent, who fulfilled the requirements of the formula, was cleared by the Board for promotion to Grade-19. As such he was promoted to that 'grade by S&GAD's notification dated 2nd July, 1986. The appellant was however cleared for promotion to Grade-19 by the Provincial Selection Board in its meeting held on 29th July, 1985. Thus, both the appellant and the said respondent were promoted to Grade-19 on recommendations of the appropriate Selection Board and therefore their promotion was obviously made on regular basis from the respective dates it was notified. As stated above the promotion of the said respondent was notified by the S&GAD's Notification, dated 2nd July, 1983 whereas the appellant's promotion was notified by S&GAD's Notification dated 27th October, 1985. Accordingly the said respondent having entered Grade-19 from earlier date, he became senior to the appellant in the grade vide rule 10(1) of the Seniority Rules mentioned above.
5. However, the argument advanced on behalf of the appellant was that since he was senior to the said respondent in lower Grade-18, he was entitled to be promoted first to higher Grade-19 and that he was not to blame if his promotion was wrongly deferred and instead his juniors including the said respondent were cleared for promotion to the higher grade. The appellant has not challenged the vires or correctness of the formula followed by the Selection Board in its meeting held in 1983. His only contention was that previous service before his induction in Grade-18 was not taken in account. Without disputing the appellants's claim that he started his service as Assistant Agriculture Chemist and Research Assistant which post though initially was in Grade-16 but it was subsequently upgraded to Grade-17, the fact remained that he appeared before Public Service Commission for contesting for the post in Grade-18 and following his selection by the Commission he was appointed in Grade-18 w,e,f, 1st March, 1978. Thus, he entered Grade-18 not by promotion but by direct recruitment. Accordingly for the purpose of the aforesaid formula he was direct recruit and not promotee. For direct recruit to become eligible for promotion to Grade-19 under formula, he had to put in 7 years' service in the Grade-18. Having been inducted in Grade-18 w,e,f, 1st March, 1978, the appellant fell short of the required period and therefore being ineligible for promotion to Grade-19 he was passed over by the Board.
6. Apart from above, the appellant's case suffered from legal flaws. The first objection was that the jurisdiction of this Tribunal was barred as the appeal involved the question of the appellant's fitness for promotion. The learned counsel for the appellant attempted in vain, to repel the above argument. According to him although the Tribunal was barred from going into the question of fitness for promotion yet it was within its jurisdiction to entertain appeal when the person was not considered for promotion at all. He further submitted that since the appellant was not considered for promotion to Grade-19 by the Selection Board in its meeting held in 1983, the appeal was maintainable. We are sorry with this argument. In fact this argument is negatived by the appellant's own assertions contained in para. 5 of the memo. Of his appeal. The relevant portion of the said para reads as under: "That the case of the appellant was not considered as according to Provincial Selection Board II that the appellant had not yet completed required tenure of service in Grade-18 as such he cannot be considered as an eligible candidate for promotion."
7. It appears that amongst others the appellant's name was also placed before the Selection Board but he was not cleared for promotion because he did not possess the prescribed eligibility. As such the learned counsel's argument was misplaced, as instead of saying that the appellant was not cleared for promotion, he alleged that he was not considered by the Selection Board. The irresistible conclusion would be that the appellant was actually considered but was not found eligible for promotion. Accordingly this Tribunal cannot interfere in the matter.
8. The next legal point raised by the learned Government counsel was that the appeal was time-barred. No doubt the cause of action accrued to the appellant for the first time in 1983 when according to his own showing he was not considered he Selection Board for promotion. Admittedly he did not agitate the matter at that time but he rather kept quiet until he was promoted in 1985. It was after his promotion to Grade-19 that he made representation for pro forma promotion from retrospective effect but that representation too was delayed for nearly six months. His promotion was notified by S&GAD Notification, dated 27th October, 1985 and he made representation about six months thereafter in 1986. Again the representation was for pro forma promotion and not for assignment of proper seniority in Grade-19. Thus the appeal was not within time.
9. The third legal lacuna found by the learned Government Counsel in the appeal was that it was not maintainable on the ground that before filing this appeal, the appellant did not exhaust departmental remedy. The aforementioned notification of promotion did not give the appellant any cause of grievance so that he should make representation against it. Accordingly the representation made by the appellant was in the nature of initiative on his part for placing him above his juniors promoted earlier in Grade-19 despite his delay promotion to that grade. After his request was turned down by the Government vide Agriculture Department's letter dated 1-12-1989 addressed to the Director General, he was supposed to have filed departmental appeal against that order because it was the first order by which he was aggrieved. Admittedly no such appeal was filed. The learned Government counsel was therefore right in his contention that before coming in the present appeal the appellant had not complied with the mandatory provision of seeking departmental remedy. Consequently the appeal was not maintainable even on that ground.
10. In view of the above discussions the appeal is dismissed with no order as to costs. Before parting with the case we wish to make some remarks. We are inclined to agree with the Law Department's advice dated 28th April, 1988 that this is a case of real hardship in which exercise of plenary powers conferred on Government under section 24 of Sindh Civil Servants Act, 1973 would be very appropriate. Particularly because about eight months after the fateful meeting of the Selection Board held in July, 1983, the formula which operated against the appellant was amended vide S&GAD's Notification dated 27th February, 1984. As per amendment, the eligibility for promotion to Grade-19 was determined not by length of service in Grade 18 but by total service in Grade-17 and above. Had this amendment been in force at the time of the meeting of the Selection Board held in July, 1983, the appellant would not have been ignored for promotion. So it was only a matter of a few months' delay in issuing the amended formula that he missed the bus.