JUSTICE (RETD) MUNAWAR ALI KHAN (CHAIRMAN)- This appeal involves a dispute over seniority in the Electrical Sub-Inspectors Cadre (BS-11) between appellant Nasir-ud-din Sidiqui and four private respondents namely Khalid Mahmood Khan, Khalid Ahmed 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-II) 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 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 on 25.3.1990. As no decision was made on that departmental appeal until after expiry of the ninety days he came to this Tribunal in the present appeal filed on 23.7.1990.
2. We heard the arguments of the learned counsel for the appellant and the learned Government counsel. As the four private respondents were unrepresented, their personal arguments were heard. We also went through all the documents relevant for disposal of the appeal.
3. In the impugned seniority list of Electrical Sub-Inspectors (BS-11) issued on 17.2.1990, the appellant was undoubtedly shown junior to all the four private respondents. The appellant's learned counsel attacked the impugned seniority list mainly on the ground that in view of the principle of locus poenitentiae, once the Secretary, Irrigation Department, had turned down the appeal of the respondent Khalid Mahmood Khan against the seniority of the appellant, he had no power to retrace back and pass fresh ing the said respondent to be placed above the appellant in the seniority list. In reply to this argument, the learned Govt, counsel submitted that the order rejecting the appeal of respondent Khalid Mahmood against the seniority position assigned to the appellant was based on misstatement of facts and as such the subsequent rectification made in the light of true factual position was perfectly in order.
4. It is an admitted position that the appellant's appointment as Electrical Sub-Inspector was made by transfer. The seniority of such appointee is regulated by rule 12 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975 hereinafter referred as Seniority Rules. It reads as under:"
12. "12. If an appointment is made by transfer-
(a) a person' appointed otherwise than on his own request shall, for the purpose determining his seniority, be given the benefit of his regular service in other post or posts held by him before his transfer and appointment to the new posts.
Provided that if the regular appointment is made in a batch or on the same day, the older in age shall rank senior to younger in 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 persons appointed with him in the same batch or on the same day by promotion 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 with their respective dates of regular appointment in the posts held by them before their transfer and appointment to the new posts; provided that if the dates of their regular appointment in such other posts are same, the older in age shall rank senior to the younger inage."
5. For the purpose of this case, clauses (a)and (b) of the above rule are relevant. According to clause (a) if transfer was made otherwise than on the transferee's own request, then he will be given the benefit of regular service rendered by him prior to his transfer, while determining his seniority in the new cadre. On the other hand clause (b) requires that in the case of transfer on transferee's own request, he shall rank junior to all those who were already borne on the cadre in question. Keeping these requirements in view, it has to be ascertained if the appellant was appointed by transfer on his own request or on the initiative of the authorities concerned. The appellant's own plea in this regard is rather ambiguous. He has not come out with forthright statement taking a definite stand on the above issue. All what he has stated in para 3 of his memo of appeal is: "that on his return he was appointed by transfer as Electrical Sub- Inspector in the Electric Inspectorate, Hyderabad Region, Hyderabad as order No: EIH/EC/17060,14.1.1977, a copy whereof is filed herewith as annexure "C." A careful perusal of the above order mentioned in the appellant's plea clearly indicates that his appointment by transfer in the Electrical Inspectorate, Hyderabad Region was made on the appellant's own application (i.e. Request). He had admittedly started his service career as Sub-Engineer Electrical in Operation Division, Scarp, Khairpur While serving there he applied for his appointment as Electrical Sub-Inspector in the Electric Inspectorate Hyderabad Region vide opening paragraph of the written statement filed by the AAG on behalf of the official respondents. The appellant's application for the said post dated 7.11.1977, a copy whereof has been enclosed with the written statement is al self- explanatory. The application was addressed to the Additional Chief Secretary, Irrigation and Power Dept. Govt, of Sind, requesting him that he be appointed as Electrical Sub-Inspector in the said Electrical Inspectorate where according to reliable information a few posts of Sub-Inspectors were lying vacant. In the said para of the written statement it is further stated that "the post of Electrical Sub- Inspector, Hyderabad was advertised by the Electric Inspector. In response to that advertisement the appellant also applied for the said post. He was interviewed alongwith other candidates on 19.11.1977 by the Selection Committee and was selected for the post. The Electric Inspector requested the Govt, for transfer of Mr. Nasir-ud-din from Scarp-Khairpur to Electric Inspectorate, Hyderabad. He was advised to give routine offer of appointment direct to appellant alongwith others and no transfer orders by Irrigation and Power 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 ignorance.
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 the Electrical Inspectorate, Hyderabad Region on his own request. The request of the Electrical Inspector Hyderabad to the Govt, for his simple transfer from Scarp-Khairpur to Electrical Inspectorate Hyderabad was turned down with direction to the said Inspector that the appellant be given routine offer of appointment. It appears to us that the Electrical Inspector was perhaps anxious to 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 of in the merit list prepared by the Selection Committee, and further more he was over age 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 over-age 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 pf the said order reads as under:- "....................... Mr. Nasirud-din Sidiqui has been placed above him (i.e. Khalid Mahmood) as in his (Mr. Sidiqui) 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 Sind 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 Feb. 1990 addressed to the Chief Electric Inspector, Govt, of Sind. Para 2 of the said letter which is material for our 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 Sidiqui was appointed as Electric 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 Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975 as such he shall rank junior to M/s. Khalid Mahmood Khan, Khalid Ahmad Khan Soomro, Ali Raza and Niaz Ali Shaikh, Electric Sub- Inspectors and above Mr. Mohammad 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 poinitantia. 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 Sind 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 authorise passing the original order was with its to rectify it. Since the desired mistake was capable of being corrected by the erring authority itself, it was meaning less and waste of the 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 be only 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 Feb. 1990 was perfectly justified and the consequent charges 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.
Given under our hands and the Seal of this Tribunal on this 30th day of April, 1991 at Karachi.