' MUNAWAR ALI KHAN (CHAIRMAN).---This appeal involves a dispute over seniority in the Electrical Sub-Inspectors' Cadre (BS-11) between appellant Nasir-ud-Din Siddiqui and four private respondents namely Khalid Mahmood Khan, Khalid Ahmad Soomro, Ali Raza Zaidi and Niaz Ali Shaikh. As stated in the memo of his appeal, the appellant's case is that following the completion of 3 years' Diploma Course in Electrical Technology, he joined Operation Division Scarp, Khairpur as Sub-Engineer Electrical on 10-9-1969. Subsequently he was appointed by transfer as Electrical Sub- Inspector in the Electric Inspectorate, Hyderabad Region, vide order dated 14-1-1977. Accordingly in the seniority list issued on 9-6-1980, he was assigned third position. Thereafter combined seniority list of Electrical Sub-Inspectors (BS-11) was issued on 14-9-1989, wherein the appellant's name appeared at S.No,
2. The appeal filed by the respondent Khalid Mahmood Khan against the said seniority list was turned down. Once again the said respondent and some others represented against the seniority position assigned to the appellant, whereupon the appellant's seniority was disturbed and he was shown junior to all the four private respondents in seniority list issued on 17- 2-1990. The appellant challenged the said seniority list in his departmental appeal filed to the Chief Secretary 25-3-1990. As no decision was made on that departmental appeal, until a expiry of the ninety days he came to this Tribunal in the present appeal filed 23-7-1990.
2. We heard the arguments of the learned counsel for the appellant and learned Government counsel. As the four private respondents w unrepresented, their personal arguments were heard.
We also went through the documents relevant for disposal of the appeal.
3. In the impugned seniority list of Electrical Sub-Inspectors (BS-11) issue on 17-2-1990, the appellant was undoubtedly shown junior to all the four privy. Respondents. The appellant's learned counsel attacked the impugned seniority 1 mainly on the ground that in view of the principle of locus peonitentiae once t Secretary, Irrigation Department, had turned down the appeal of the responded Khalid Mahmood Khan against the seniority of the appellant, he had no power retrace back and pass fresh order allowing the said respondent to be placed abo the appellant in the seniority list. In reply to this argument, the learn Government counsel submitted that the order rejecting the appeal of responde Khalid Mahmood against the seniority position assigned to the appellant w based on misstatement of facts and as such the subsequent rectification made the light of true factual position was perfectly in order.
4. It is an admitted position that the appellant's appointment as Electric Sub-Inspector was made by transfer. The seniority of such appointee is regulate by rule 12 of the Sindh Civil Servants (Probation, Confirmation and Seniorit Rules, 1975 hereinafter referred as Seniority Rules. It reads 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 service in other post or posts held by him before his transfer an appointment to the new post: Provided that if the regular appointment is made in a batch c on the same day, the older in age shall rank senior to younger I 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 persor appointed with him in the same batch or on the same day by promotio or initial recruitment;
(c) the inter se seniority of persons appointed on their request in the same batch or on the same day shall be determined in accordance wit their respective dates of regular appointment in the posts held t them before their transfer and appointment to the new post provided that if the dates of their regular appointment in such other posts are the same, the older in age shall rank senior to the younger in age."
5. For the purpose of this case, clauses (a) and (b) of the above rule are event. According to clause
(a) if transfer was made otherwise than on the sphere's own request, then he will be given the benefit of regular service dared by him prior to his transfer, while determining his seniority in the new drew. On the other hand clause (b) requires that in the case of transfer on nsferee's own request, he shall rank junior to all those who were already borne the cadre in question. Keeping these requirements in view, it has to be certained if the appellant was appointed by transfer on his own request or on e initiative of the authorities concerned. The appellant's own plea in this regard rather ambiguous. He has not come out with forthight statement taking a finite stand on the above issue. All what he has stated in para. 3 of his memo of peal is: "that on his return he was appointed by transfer as Electrical Sub- spector in the Electric Inspectorate, Hyderabad Region, Hyderabad as order o. EIH/EC/17060, dated 14-1-1977, a copy whereof is filed herewith as nnexure "C". A careful perusal of the above order mentioned in the appellant's lea clearly indicates that his appointment by transfer in the Electrical spectorate, Hyderabad Region was made on the appellant's own aplacation (i,e, request). He had admittedly started his service career as ub-Engineer Electrical in Operation Division, Scarp, Khairpur. While rving there he applied for his appointment as Electrical Sub-Inspector in e Electric Inspectorate Hyderabad Region vide opening paragraph of the itten statement filed by the AA.-G. On behalf of the official respondents. The ppellant's application for the said post dated 7-11-1977, a copy whereof has been ,closed with the written statement is also self-explanatory. The application was addressed to the Additional Chief Secretary, Irrigation and Power Department Government of Sindh, requesting him that he be appointed as Electrical Subnspector in the said Elecrtrical Inspectorate where according to reliable nformation a few posts of Sub-Inspectors were lying vacant. In the said )ara. Of the written statement it is further stated that "the post of Electrical Sub-Inspector, Hyderabad was advertised by the Electric Inspector. In esponse to that advertisement the appellant also applied for the said post. He vas interviewed alongwith other candidates on 19-11-1977 by the Selection Committee and was selected for the post. The Electric Inspector requested the government for transfer of Mr. Nasir-ud-Din from Scarp- Khairpur to Electric nspectorate, Hyderabad. He was advised to give routine offer of appointment lirect to appellant alongwith others and no transfer orders by Irrigation and 'ower Department were issued. However, Electric Inspector, Hyderabad appointed him by transfer on his own request."
When the learned counsel for the appellant was confronted with above factual position, he showed his gnorance.
6. From the above discussion it is well-established and no doubt has been left in our mind that the appellant was appointed Electrical Sub-Inspector in t Electrical Inspectorate, Hyderabad Region on his own request. The request the Electrical Inspector, Hyderabad to the Government for his simple transfers from Scarp-Khairpur to Electrical Inspectorate, Hyderabad was turned down wit direction to the said Inspector that the appellant be given routine offer o appointment. It appears to us that the Electrical Inspector was perhaps anxious t protect the appellant's seniority at the new place of his posting. Having failed in his efforts, he appointed the appellant as Electrical Sub-Inspector by transfer and not as Selectee by initial recruitment. This method was also adopted with some purpose. In the written statement filed by the private respondents it is disclosed that consequent upon his selection for the post of Electrical Sub-Inspector, the appellant was placed at the bottom in the merit list prepared by the Selection Committee, and furthermore he was overage and the necessary age-relaxation could not be made either by Selection Committee or by the appointing authority i,e, Electrical Inspector. Thus by making the appellant's appointment by transfer, he was not only saved from botheration of getting his overage relaxed but also the question of his seniority vis-a-vis other new selectees on the basis of merit did not arise.
7. In any case since the appellant was appointed as Electric Sub-Inspector on his own request, he had to rank junior to those who were already inducted in the said cadre of Electrical Sub- Inspectors, as per clause (b) of rule 12 hereinabove. Despite such clear cut position, the learned counsel for the appellant laid great emphasis on rejection of appeal made by respondent Khalid Mahmood against the seniority position assigned to the appellant in the seniority list issued on 14- 9-1989. In support of his contention he referred us to the order of Irrigation and Power Department, dated 17-12-1989. The relevant portion of the said order reads as under:-- .Mr. Nasir-ud-Din Siddiqui has been placed above him (i,e, Khalid Mahmood) as in his (Mr. Siddiqui) case, he on his transfer to the Electric Cadre has been allowed seniority from 10-9-1969 on which date he was appointed as Sub-Engineer, under rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 ' It appears from the above order that the respondent Khalid Mahmood did not succeed in his appeal mainly because the appellate authority assumed that the appellant's appointment was made under clause (a) of rule 12 hereinabove. In our opinion the assumption was clearly misplaced. As pointed out above it was negatived by very order of the appellant's appointment as Electrical Sub-Inspector. We have already held that the appellant's said appointment was made on his own request and therefore for determination of his seniority in the cadre of Electrical Sub- Inspectors he was governed by clause (b) and not by clause (a) of the aforesaid rule 12. In this connection we were also shown Irrigation and Power Department's letter dated 6th February, 1990 addressed to the Chief Electric inspector, Government of Sindh. Para. 2 of the said letter which is material for cur purpose may be reproduced as under:-- "The representations/appeals filed by M/s. Khalid Mahmood Khan, Electrical Sub-Inspector and others on the above subject have been examined at length and it has been established that Mr. Nasiruddin Siddiqui was appointed as Electrical Sub-Inspector by transfer on his own request and had joined Electric Inspectorate, Hyderabad Region on 5-1-1978. His case falls under rule 12(b) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 as such he shall rank junior to M/s. Khalid Mahmood Khan, Khalid Ahmad Khan Soomro, All Raza and Niaz Ali Shaikh, Electrical Sub-Inspectors and above Mr. Muhammad Aslam Electric Sub-Inspector, in the seniority list issued under this, No, A-1/10-16-10-V, dated 14-9-1989."
8. It was in the light of above decision that fresh seniority list was published under cover dated 17- 2-1990, which has been impugned in this appeal. The learned appellant's counsel took serious exception to the above order, which according to him, violated the principle of locus poenitentiae.
He meant to submit that once the appeal of respondent Khalid Mahmood Khan was decided by the Secretary, Irrigation and Power Department against him, the said deciding authority became functus officio, left with no power to reopen the case and pass fresh order: In reply to above argument our attention was drawn to para. 2 of "Brief Facts" in the written statement filed on behalf of the official respondents. It reads as under: "On the basis of Electric Inspector Hyderabad's order dated 14-12-1977 he was assigned seniority treating his transfer in public interest. However M/s. Khalid Mahmood Khan and others represented against assigning the seniority to him. The record from the office of the Electric Inspector, Hyderabad was called for and it was established that the appellant was appointed as Electric Sub- Inspector by transfer on his own request as such he was assigned seniority from the date he had joined as Electric Sub-Inspector viz. 5-1-1978 as per the provisions of rule 12(b) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975."
9. It is clear from the above, that previous order whereby Khalid Mahmood's appeal was rejected was based on wrong premise of facts. After the relevant record was called for from the Electric Inspector's office and true facts came to light, necessary rectification was made by the subsequent order. We are of the view that such rectification was legally permissible or else the damage done by the previous order would have been perpetuated. In such a case the authority did it with a view to rectify it. Since the desired mistake was capable of being corrected by the erring authority itself, it was meaningless and waste of time and money to resort to appeal for correction of such mistake. Apart from this, the subsequent order covered not only the appeal/representation filed by respondent Khalid Mahmood Khan but also the appeals/representations filed by others obviously including other three private respondents. As such it could not only be' construed as having reviewed the previous order which was passed in respect of respondent Khalid Mahmood Khan but also as fresh order on the appeals/representations of other three private respondents. Thus the subsequent order dated 6th February, 1990 was perfectly justified and the consequent changes made in the seniority list issued on 17-2-1990 were also correct and are therefore hereby upheld.
' In view of the above discussion the appeal has no merit and is therefore dismissed with no orders as to costs.