JUSTICE (RTD) MUNAWAR ALI KHAN, CHAIRMAN.- This judgement covers to appeals: namely, appeal No.64/90 filed by Mr. Lai Bux and apneal No.70/90 filed by Mr. Mohammad Sharif, involving the common questions of law and fact. In these appeals the appellants have raised a dispute of seniority with private respondents, claiming to be senior to them in the cadre of Ward Rationing Officers BS-16 (hereinafter referred as WROs).
2. The circumstances giving rise to the dispute over seniority between the parties, may briefly be narrated as follows. The appellant Lai Bux joined Food Department on 17.1.1958 as Food Inspector, in the Hyderabad Region. Subsequently, he was promoted, first as Assistant Food Controller on 18.5.1973 and then as WRO on 24.11.1981. The other appellant Mohammad Sharif, who was already in Govt, service entered Food Department on 1.6.1973 as Assistant Food Controller also in Hyderabad Region and was subsequently promoted to the post of WRO on 5.3.1981. Like the appellants the private respondents Haji Mohammad Yousuf also began his service in the Food Department in the Hyderabad Region. Initially he entered the said department as Godown Keeper. Thereafter he was promoted, first as Food Inspector on 21.10.1958, then as Assistant Food Controller on 18.5.1973 and lastly as WRO on 11.10.1983. While working as Asstt. Food Controller at Sakrand he was transferred to Karachi Region as Asstt. Ward Rationing Officer allegedly on complaints vide order dated 9.10.1978.
He was repatriated to his original Hyderabad Region again by order dated 1.3.4980. The other to private respondents M/s. Akhtar Mohammad Mangi, and Mohammad Yousuf Khushk were appointed as Asstt; Ward Rationing Officers in Karachi Region on 2U.1973 and 26.8.1974 respectively.
They were subsequently, promoted as WROs on 30.4.1989.
3. However, the private respondents claimed seniority over the appellants in the cadre of WROs, though they entered that cadre later than the appellants. Their claim was based on the West Pakistan Food Department (Gazzetted' Posts) Recruitment Rules 1963 (hereinafter referred as 1963- Rules), According to these Rules, the post of WRO was to be filled by promotion from Asstt: Food Controllers of the Region in which the vacancy occurred. Following the up-gradation of the post of WRO to grade with effect from 1.3.1972, the method of filling that post was also changed. By the Food Department's notification No: SOF (V)-2 (7)/76, dated 26.6.1980 the words" in the region where vacancies occur" appearing in the 1963-Rules were deleted. Meanwhile some posts of WROs fell vacant in Karachi Region due to retirement of incumbents under MLO-55. Pending the change in method of filling said post they were filled on adhoc basis obviously on provincial basis vide Food Department's notification dated 28.7.1979. The said adhoc promotions were subsequently regularized with effect from 27.6.1980, one day after the notification changing the method of filling the said posts was issued.
4. After the private respondents were promoted to the posts of WROS, they Obviously agitated for giving them seniority over the appellants in the cadre of WROs. Thereupon the Food Department by its letter dated 23rd May, 1989 invited objections from the appellants as to protecting of the respondent's s seniority in the said cadre-under rule 13 of the Sind Civil Servant (Probation, Confirmation and Seniority) Rules 1975 (hereinafter referred as Seniority Rules). However,in the, seniority list of WROs issued on 18.6.1989 obviously after the Food Department's above letter, the said private respondents were shown junior to the appellants. The objections submitted by the appellants in response to the Food Department's aforesaid letter were ultimately rejected and all the three respondents were allowed the benefit of rule 13 of the Seniority rules vide Food I Department's to notifications, first dated 23.8.1989 relating to M/s. Akhtar - Mohammad Mangi and Mohammad Yousuf Khushk and second dated, 25th November, 1989 in respect of Haji Mohammad Yousuf Memon. The appellants challenged the said notifications in the departmental appeal filed before the Chief Secretary. Pending decision on the said appeal, the Food Department came out with tentative Seniority List of WROs on 7th December, 1989 in which the appellants were shown junior to the private respondents. The appellant Lai Bux filed objections against the said tentative Seniority list. At last the final Seniority list was issued on 6.2.1990 which continued to reflect the appellant's seniority position as mentioned in the earlier provisional seniority list. Once again the appellant Lai Bux called in question the said seniority list in his departmental appeal dated 5:3.1990 filed before the Chief Secretary. The said appeal was rejected vide Chief Secretary's order dated 11.7.1990. A copy of the Chief ' Secretary's order was however received by the appellant on 11.8.1990 and as such he filed his appeal before this Tribunal on 8.9.1990. So far the appellant Mohammad Sharif is concerned he was informed for the first the vide Food Department's letter dated 27.8.1990 which he received on 30.8.1990. That his to appeals dated 21.11.1989 and 26.2.1990 against giving of the benefit of rule 13 of .Seniority rules to the private respondents, had been considered and rejected by the Chief Secretary on 30.7.1990. Thus he came to this Tribunal in his appeal on 19.9.1990.
5. We heard Mr. Manzoor Ali Khan for the appellants and Mr. Abdul Ghafoor. Mangi, on behalf of the official respondents. The three private respondents who were not represented by any counsel submitted their arguments . Personally. We also went through the relevant documents carefully.
6. It was not disputed by the parties in course of the arguments, that the appellants were promoted as WROs earlier than the promotion of, the, private respondents to the said posts. However, the private respondents were made senior to the appellants in the cadre of WROs by giving them benefit of rule 13 of the Seniority rules. Before formal orders were issued to this effect the appellant were served with notice inviting objections from them. Although notice was served on them separately, yet the notice was issued to both the appellants on same date i.eS 23rd May 1989 and more or less in the same language. The notice issued to the appellant Lai Bux reads as under: " Under the West Pakistan Food Departments (Gazetted Posts) Recruitment Rules, 1963, M/s. Akhtar Mohammad Mangi, Muhammad Yousif Kbushik, Mumtaz Ali Rajput and Ch. Khan Muhammad, Assistant Ward Rationing Officers in Karachi Region, were due for promotion as Ward Rationing Officer on the basis of regional seniority list in the year 1979 against the vacancies of Ward Rationing Officers of Karachi region caused due to termination of services of 11 Ward Rationing Officers under MLO-55 but pending formal promulgation of the Government of Sind Food Department (Gazetted Posts) Recruitment Rules, 1980, promotion to the posts of Ward Rationing Officers were made on the basis of seniority of Assistant Ward Rationing Officers/Assistant Food Controllers on . Provincial level vide this Department Notification No.SOF (V)- 2(240)/79, dated 28.7.1979, which were regularized on 27.6.1980.
2. In pursuance of the advice of Services and General Administration Department contained in U.O.
No.SOR-II-(S&GAD)12-5/82, dated 26.8.1987, the above-named officials have been promoted as Ward Rationing Officers (BS-16) on 30.4.1989 and now their seniority in the cadre of Ward Rationing Officer is to be protected under Rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority Rules 1975, as amended.
3. Please furnish your objections, if any, so as to reach this Department by 15.6.1989 positively, before the case of protection of their seniority is finally decided by this Department."
7. It would appear from the above notice that 11 posts of WROs fell vacant in the Karachi Region in 1979 which according to the 1963-Rules were to be filled from amongst the Assistant Food Controllers/Assistant Ward Rationing Officers of that region but instead the said posts were filled on provincial basis vide Food Department's notification dated 28.7.1979, thereby depriving the private respondents who belonged to Karachi Region of the right of promotion and therefore after they were later promoted as WROs on 30.4.1989, they became entitled to protection of their seniority in the cadre of WROs under rule 13 of Seniority rules. The appellants submitted their reply vehemently opposing the above move. Their plea was that after the post of WRO was up-graded to grade- 16 w.e.f.1.3.1972 it ceased to be a regional post and therefore it was rightly filled at provincial level. The parties learned counsel and the three private respondents further elaborated their respective view points in course of their arguments.
8. In order to comprehend the conflicting stands of the parties, it may be convenient to glance through the notification dated 23.8.1989 to see in what Shape the to respondents M/s. Akhtar Muhammad Mangi and Mohammad Yousuf Khushk have been allowed the benefit of improved seniority in the WROs cadre. The said notification reads as under:- "NOTIFICATION No:SOF(V)-2(240)/79:-M/s. Akhtar Muhammad Mangi, Muhammad Yousif Khushik, Mumtaz Ali Rajput and Ch. Khan Muhammad, promoted as Ward Rationing Officer (B-16), vide this Department Notification No:SOF(V)-2(240)/79 dated 30.4.1989 are hereby allowed protection of seniority in the cadre of Ward Rationing Officer, w.e. From 28.7.1979, i.e. The date on which their First Juniors viz: M/s. Muhammad Ishaque Bhort (since retired) Shamim Akhtar Bukhari, Abdul Rehman Pathan, Fida Khan Soomro (since retired) Kefayat Ali Shaikh and Muhammad Bux Shaikh (Since retired) were promoted as required under Rule-13 of S.C.S, (Probation, Confirmation and Seniority) Rules-1975.
2. They are assigned position at Sr. No:2,3,4, & 5 respectively in the seniority list of Ward Rationing Officer as stood on 1.6.1989 below Mr. Raza Muhammad Sial and above Mr. Shamim Akhtar Budhari."
The above notification clearly shows that aforesaid to respondents alongwith M/s. Mumtaz Ali Rajpoot and Choudhry Khan Mohammad have been given seniority w.e.f. 28.7.1979, the date from which their first juniors namely M/s. Mohammad Ishaq Bhurt, Shmim Akhtar, Abdul Rahman Pathan, Essa Khan Soomro, Kifayat Ali Shaikh and Mohammad Bux Shaikh were promoted. At this stage we may refer to the writ petition No:D-114/1988 filed, in the High Court by Choudhry Khan Mohammad, one of the beneficiaries of the aforementioned notification. The said writ petition was filed inter alia against the above so-called juniors of the to respondents, appearing as defendants at serial Nos:3 to 7 in the memo of writ petition.
9. It would appear from the memo of writ petition that the petitioner, Ch: Khan Mohammad's grievance was that the aforesaid defendants and one Essa Khan Soomro were from Sukkur and Hyderabad Regions, but they were accommodated as WROs in the posts of Karachi Region in violation of 1963-Rules. Thus it was established from his statement that M/s. Mohammad Ishaq Bhurt, Shamim Akhtar, Abdur Rehman Pathan, Kifayat Ali Shaaikh and Mohammad Bux Shaikh all came from Sukkur and Hyderabad Regions whereas the petitioner himself and to respondents M/s. Akhtar Mohammad Mangi, Mohammad Yousuf Khuskh and one' Mumtaz Ali belonged to Karachi Region. There was admittedly a separate Seniority list for the officials (i.e. Assistant Food Controllers/Assistant Ward Rationing Officers) of each region. Consequently the question of the officials of one region being junior or senior of the officials or the other region would not arise until consolidated seniority list was compiled of the officials of all the three regions. As such rule 13 of Seniority rules was inapplicable and the to notifications whereby benefit of the said rule was allowed to the three respondents were of no legal consequence.
10. Apart from above it had to be examined if the promotion in question were at all required to be made in accordance with 1963-Rules. It is not disputed that by 28.7.1979 when adhoc promotions were made to WROs' posts, not only the Sind Civil' Servants Act 1973 (hereinafter called as the said Act) but also the rules relevant for our purpose namely Sindh1 Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred as 1974-rules) and the Seniority rules had already come into force and were fully operative. As provided in sub-section (4), of Section 8 of the said Act:"the Seniority in the grade to which civil servant is promoted shall take effect from the date of regular appointment to a post in that grade." According to sub-section (2) of Section 2 of the said Act, "an appointment whether by promotion or otherwise shall be deemed to have been made on regular basis if it is made in the prescribed manner". The word "prescribed" as per clause (g) of Section 2 of the said Act means prescribed by rules. The relevant rules which held the field at the the of controversial promotions were 1974-rules. Sub-rule (2) of rule 7 of these rules reads as under:- "(2) Appointments by promotion or transfer to posts in grade 3 to grade 18 .......................................................
Shall be made on the recommendations of the appropriate Departmental Promotion Committee."
11. Of course the above rule is silent as to whether the scope of the said committee's selection for promotion was limited to the officials of particular region. Such commission alone from the existing rules would not however keep the 1963-rules alive. In absence of any specific guideline in this regard, we are inclined to the view that the selection for promotion would depend on whether the post to be filled was regional or provincial. It is an admitted position that when the controversial promotions were made in 1979, the status of the WRO's post had already been raised from grade-H to grade-16 with effect from 1.3.1972. As per rule 14 of the 1974-rules, vacancies in posts in grade-16 and above are to be filled on the provincial basis, though regional or district quota as determined by Government from the to the had to be kept in view. So according to rule 14 ibid WRO's post was provincial post. It was however, submitted at the bar that rule 14 falls within part 111 of the rules, which pertains to appointments by initial recruitment. As such, the argument went further, rule 14 was not applicable to promotions. T his argument was far from convincing. The post of the particular grade is either of regional status or of provincial status. It was absurd to argue that for the purpose of initial recruitment, the WRO's post (grade-16) was treated as provincial post but for promotion purpose it would be down-graded and considered as regional post. More over the post of grade-16 has always remained as provincial post. It enjoyed the provincial status even prior to introduction of Service Law Reforms in 1973. Obviously when the WRO's post was in grade-11 it had the regional status and therefore had to be filled on regional basis. It was then that selection for promotion to that post was restricted to the officials of the lower grade of the region in which the vacancy occurred. As soon as its status was elevated and the post was placed in grade-16, it ceased to be regional post. Thus from the date of its upgradation it came to be called a provincial post. After such change in the status of the WRO's post, if any such post fell vacant it was wrong to say that vacancy had occurred in any particular region. It may be true in literal sense but in legal terminology, the vacancy in the provincial post, would be treated as vacancy on provincial basis and not on regional basis. Thus with upgradation of the post of WRO the words: "in the region where vacancies occur", given in appendix of 1963-rules became irreconcilable with the status of post and were thereby rendered meaningless. Accordingly the necessary alterations in the above rules became inevitable, and therefore formal amendment in 1963-rules was brought by the Food Department's notification dated 26.6.1980. The only change caused by the said notification was obviously an omission of the words: "in the region where vacancies occur", appearing in clause (ii), column 4 corresponding to the entry of:7 in column 2 of the appendix of 1963-rules. Despite the said amendment promotion to posts of WRO continued to be made from amongst the Assistant Food Controllers/Assistant Ward Rationing Officers. Only the restriction of confining such promotion to the officials of the region in which vacancy occurred was done away with. After the said amendment, instead of making promotion from among the limited group of officials of the particular region, they were to be made on provincial basis.
12. However the question that was still hanging fire wa how the upgraded post of WRO had to be filled during the intervening period until necessary formal amendment was made, dropping from 1963-rules the confusing words "in the region where vacancies cour". Instead of continuing the practice of making promotion in accordance with method contained in the appendix of 1963-Rules which, as pointed out above, had already become obsolete with the raising of status of WRO's post, it was. Rightly decided to fill the vacancies which had occurred after the upgradation of post on adhoc basis. The formal amendment made in 1980 whereby the aforesaid words were committed was not intended to deprive the officials of any region of their right of promotion, but it rather sought to make the rules rational so as to meet the new requirements of the up-graded post. In our opinion as soon as the post of WRO was upgraded and it became a provincial post, the method of of its filling on provincial level also became automatically effective. The amendment notified on 26.6.1980 only gave it a formal legal shape. Accordingly we are of the view that after upgradation of WRO's post to grade-16 it was to be filled on provincial basis and not in accordance with 1963-rules.
13. In course of the arguments our reference was invited to the combined seniority list of Asstt.
Ward Rationing Officers of all the three regions, Hyderabad, Sukkur and Karachi, dated 15.7.1981 Its perusal revealed that appellants M/s. Mohammad Shareef Memon and Lai Bux Soomro were appointed as Asstt: Food Controllers on 1.6.1972 and 18.5.1973 respectively whereas respondents Akhtar Mohamma Mangi and Mohammad Yousuf Khuskh were inducted in the said the lower grade on the same date i.e. 3.8.1978. Thus the appellants were senior to the said to private respondents even in the lower grade. But the case of third respondent Mohammad Yousuf Memon was however distinguishable from that of other to respondents in as much as that the former originally belonged to the same Hyderabad Region where the appellants had their roots. His transfer to Karachi Region for short period on administrative grounds could not be construed as his permanent absorption in that region particularly when according to his own admission he was sent back to his original region. More over there was no evidence before us to hold that following his transfer to Karachi, he had permanently severed his connections with the Hyderabad region.
Had he done ro, he would not been repatriated to his original region Hyderabad. As such his claim could not be identical with that of the other to respondents.
14. On the basis of date of continuous Officiation the respondents M/s. Akhtar Mohammad Mangi and Mohammad Khushk even though belonged to different regions of Karachi were junior to appellants Mohammad Sharif Memon and Lai Bux who came from Hyderabad region. Therefore rule 13 of the Seniority rule was not invokable in their case. Had the aforesaid respondents been senior to the appellants in the lower grade and yet the appellants were promoted before the promotion of the said respondents as WRO then along, the respondents could have moved the authorities for the improvement of the seniority rules. Since that was not the case of the respondent they were not entitled to improvement of the Seniority vis-a-vis appellants in the WROs cadre.
15. We have given our best thought to the question of limitation in the case of appellant Lai Bux, his departmental appeal was reject by the Chief Secretary's, order dated 11.7.1990 which according to the said appellant was received by him on 11.8.1990. As provided in Section 4 of the Sind Service Tribunals Act 1973, appeal is to be filed within 30 days of the communication of the order. In view of appellant's claim that he received the appellate order on 11.8.1990 i.e. One month after it was passed, the burden was on the Department to show that it was communicated to him in the. No such evidence has been laid before the Tribunal. On the contrary the appellant's application dated 4.8.1990 for a copy of the order showed his interest and eagerness to know the result of his departmental appeal, which did not seem to have been brought to his notice earlier. In the circumstances we accept the appellant explanation as regards the delay in filing the appeal. For similar reasons the explanation furnished by appellant Mohammad Sharif with regard to delay in filing his appeal is also difficult to dismiss lightly.
16. The upshot of above discussion is that appeals are allowed with no orders as to costs and the Food Department's to notifications referred to above, allowing benefit of rule 13 of the Seniority rules to the three respondents are hereby set aside. Consequently the authorities concerned will make necessary corrections in the Seniority list of WROs.