1. ' MUNAWAR ALI KHAN (CHAIRMAN).---Aggrieved by the seniority list of Assistant Excise and Taxation Officers issued on 24-9-1989, Mr. Noor Nabi Pathan, presently working as Excise and Taxation Officer has filed the present appeal.
2. ' The facts leading to this appeal may be summarised as follows. On his promotion as Excise and Taxation Inspector, the appellant entered the cadre of Excise and Taxation Inspectors with effect from 15-5-1971. The five private respondents whose names appear in the memo of appeal having been inducted in the said cadre on later dates, were shown junior to the appellant in the seniority list issued on 21-3-1983. Following his conviction by Summary Military Court during the last Martial Law, the appellant went out of service. Subsequently on being pardoned, he was reinstated in service as Assistant Excise and Taxation Officer (previously called the Excise and Taxation Inspector) on 16-4-1985. As claimed in the memo of appeal, the Chief Secretary vide his order dated 17-5-1969 allowed the appellant continuity in service in the cadre of Excise and Taxation Inspectors. However, during his absence from service, the private respondents were promoted to the rank of Excise and Taxation Officers. Despite that their names appeared below the appellant's name in the seniority list of Excise and Taxation Inspectors/Assistant Excise and Taxation Officers, made public on 18th September, 1986. It was however noted against the appellant's name that the S&GAD's advice had been solicited with regard to seniority position assigned to the appellant.
3. ' Thereafter the appellant was promoted to Excise and Taxation Officer on temporary and ad hoc basis but a year later he was reverted to his previous position vide notification dated 4th August, 1988. In the seniority list of Assistant Excise and Taxation Officers appearing on 14th March, 1989, although appellant's name was mentioned at S.No, 1, the names of the private respondents were omitted. The appellant lodged a protest obviously against the exclusion of the respondents from the said list. By Government's Notification dated 19th June, 1989, he was again promoted as Excise and Taxation Officer on ad hoc basis. Thereupon he made representation dated 15-7-1989 for giving him the benefit of rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority)
4. Rules, 1975, for the purpose of protection of his seniority vis-a-vis the private respondents who were junior to him in the later cadre. Pending any decision on his representation, final seniority list of Assistant Excise and Taxation Officers was issued on 24th August, 1989 wherein the appellant was given seniority from 15-5-1971, the date of his continuous officiation in that cadre and was placed at S.No, 1, whereas the names of the private respondents, as in the previous seniority list, stood omitted and instead they were included in the tentative seniority list of Excise and Taxation Officers also issued on the same date i,e, 24th August, 1989. The appellant preferred departmental appeal dated 7-10-1985 to the Chief Secretary and after waiting for his decision for 90 days, he filed the present appeal on 30-1-1990.
5. ' We heard Mr. Manzoor Ali Khan for the appellant and Mr. Abdul Ghafoor Mangi, A.A.-G. On behalf of the official respondents. None of the private respondents turned up for the arguments. In fact Messrs Aijaz Ahmad and Muhammad Umar Yosufani did not contest the appeal though notice was served on them. Mr. Haji Khan Manager simply sent his written statement by post. The notice issued to respondents Ghulam Murtaza Sheikh and Muhammad Ismail Qadri returned with endorsement that the former had retired from service and the latter was dead. We also went through all the relevant documents carefully.
6. ' The appellant's prayer as given in memo of his appeal reads as under: "(b) after hearing the parties, order/direct that the appellant be assigned seniority as Assistant Excise and Taxation Officer over respondents Nos.4 to 8 by including their names in the Final Seniority List dated 24-3-1989 of Assistant Excise and Taxation Officers placing them below the appellant and further direct that the appellant be assigned seniority as Excise and Taxation Officer (BS-17) and his name be placed over the names of respondents Nos. 4 to 6 in the seniority list of Excise and Taxation Officers (BS-17), with all the consequential and back benefits."
7. ' It appears from the appellant's above prayer that he wants not only the inclusion of the names of the private respondents in the seniority list dated 24-6-1989 of Assistant Excise and Taxation Officers below his name but also the placing of his name above the said respondents in the seniority list of Excise and Taxation Officers. As against this, it is stated in the opening paragraph of memo of appeal that the appellant has filed this appeal only against the seniority list of Assistant Excise and Taxation Officers issued on 24-8-1989. In other words he was aggrieved by the said seniority list. The perusal of this list would reveal that the appellant's name appeared at S.No, 1, which clearly means that he was senior to all other officers whose names were specified below his name. The question would then arise what grievance he had against the said list? In this connection reference may be made to para. 13 of the memo of appeal, which clearly shows that although the appellant was satisfied with the position assigned to him in the pugned seniority list, he had objection to omission of the private respondents' ames from the said list. Since the appellant's seniority was not adversely affected y the impugned seniority list, he had no cause of action to assail the same on the round of mere omission of the private respondents' names from it.
8. Even otherwise after their promotion as Excise and Taxation Officers, their omission from the seniority list of the lower cadre of Assistant Excise and Taxation Officers was understandable.
9. ' However, the contention of the appellant's learned counsel was that the private respondents were promoted as Excise and Taxation Officers only on ad hoc basis and therefore unless their promotion to higher grade was regularised, they could not be inducted in the seniority list of the said higher cadre and until then their names had to be specified in the seniority list of the lower cadre. In reply to. This argument, the learned A.A.-G. Submitted that the private respondents were absorbed in the substantive vacancies of the Excise and Taxation Officers on regular basis.
10. Accordingly, he added, their seniority was to be reckoned in the higher cadre from the date of their promotion to that cadre. He further submitted that precisely for this reason that the names of the private respondents were dropped from the seniority list of the Assistant Excise and Taxation Officers and instead were included in the tentative seniority list of Excise and Taxation Officers. The plea taken in the written statement filed on behalf of the official respondents obviously supported the learned AA:-G's arguments. In this connection we have also perused the Government's two notifications, one dated 1st February, 1984 whereby respondents Aijaz Ahmed Sheikh and Muhammad Umar Yousufani were promoted as Excise and Taxation Officers and the other dated 29-4-1984 by which respondent Haji Khan was promoted as Excise and Taxation Officer. It is clear from these notifications that the said respondents were promoted by competent authority on the recommendations of the Departmental Promotion Committee in the clear vacancies. It was not the appellant's case that the said private respondents did not possess the required eligibility for the promotion. Accordingly we are of the view that their promotion was on regular basis as distinguished from ad hoc basis and they were entitled to count their seniority in the cadre of Excise and Taxation Officers from the respective dates of their promotion. There is nothing on record to show nor is it the plea of the appellant that their continuous officiations in the higher posts of Excise and Taxation Officers was at any stage interrupted. The extroneous words added in the notifications of their promotions were of no legal consequence and therefore not be construed to treat their promotions otherwise than on regular basis. Thus the appellant's objection to omission of the private respondents' names from the seniority list of Assistant Excise and Taxation Officers was misplaced. However as pointed out above the said commission did not provide the appellant any cause of action to assail the said seniority list. Consequently his appeal is not maintainable on that score.
11. ' Reverting to para. 13 of the memo. Of appeal, it appeared to us that the appellant's real grievance was against the absence of his name from the tentative seniority list of Excise and Taxation Officers. Perhaps being aware that...He could not challenge that list until it was finalised, he seemed to have linked it with the final seniority list of the Assistant Excise and Taxation Officers and have brought latter list in question so as to provide him the cause of action for filing the present appeal.
12. But we are sorry to say that his efforts in this regard have proved counterproductive. As pointed out earlier he could not call in question the seniority list of Assistant Excise and Taxation Officers because it did not hurt him in any way but he was rather satisfied with the seniority position assigned to him in that list. Similarly he could not challenge the tentative seniority list of Excise and Taxation Officers until it was finalised. As stated by his learned counsel the appellant has already filed objections against the aforesaid tentative seniority list. Instead of rushing to this Tribunal in the present litigation, he should have waited for the outcome of his objections and let the seniority list to assume the final shape. Of course, he too had been promoted as Excise and Taxation Officer - vide Government's Notification dated 19th June, 1989 though only on ad hoc basis. His inclusion in the seniority list to be finalised would depend upon his absorption on regular basis in clear vacancy in the post of Excise and Taxation Officer reserved for promotees. Again the improvement of his seniority in the orders of Excise and Taxation Officers vis-a-vis the private respondents who had admittedly entered that cadre as far back as 1984 could first require the order to be passed by the competent authority allowing the appellant the benefit of rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. As disclosed in the memo of appeal the appellant had already made representation for the said benefit. In our opinion the said representation was premature, as it would lie only after regularisation of his promotion to the post of Excise and Taxation Officer and his consequent induction in the said higher cadre.
13. In view of above discussion the relief prayed for by the appellant could not be granted to him. As such the appeal is dismissed with no order as to costs. The appellant may like to agitate the question of his seniority in the higher grade of Excise and Taxation Officers if and when fresh cause of action accrued to him.