1. ' MUNAWAR ALI KHAN (CHAIRMAN).---This judgment will govern seven appeals: namely, Appeal No,36 of 1988 filed by Mr.Zamir Ahmad Shaikh, Appeal No,37 of 1988 filed by Mr. Shamsuddin Qureshi, Appeal No,38 of 1988 filed by MrAbdul Ghafoor Sanjrani, Appeal No,41 of 1988 filed by Mr. Bakhtiar Jhatial, Appeal No,42 of 1988 filed by Mr. Muhammad Ali Depar, Appeal No,43 of 1988 filed by Mr. Abdul Ghafoor Burire and Appeal No,44 of 1988 filed by Mr. Faiz Muhammad Agani. All the appellants who are graduates of engineering started their service career as Supervisors in the Communication and Works. Department, Government of Sindh. They were later redesignated as Sub-Engineers (Graduates). By notification issued on different dates, they were entrusted the charge of Sub-Divisions, in their own pay and grade. M/s. Zamir Ahmad Shaikh, Shamsuddin Qureshi and Abdul Ghafoor Sanjrani were assigned the higher charge by three separate notifications, dated 17th December, 1978, 5th May, 1981 and 2nd May, 1981 respectively. M/s. Bakhtiar Jathial and Faiz Muhammad were placed in similar charge vide single notification dated 11-1-1983.
2. The appointment of M/s. Muhammad Ali Dapar and Abdul Ghafoor Burire in the Sub-Divisions was notified by Notification dated 28th September, 1979. According to the appellants' case they were given the higher charge of the sub-division after clearance by the Departmental Promotion Committee. Moreover they, were appointed in clear vacancies and as such they continued to hold the higher charge uninterruptedly until filing of their present appeals. Their claim is that their appointment to the sub-divisions was in the nature of promotion. As for the respondents, their plea is that they are junior to them because they were appointed by initial recruitment much after the appellants' B induction in the cadre of Assistant Engineers. The appellants have, therefore, felt aggrieved by the seniority list, dated 18th February, 1987 wherein the respondents have been shown senior to them. On learning about the impugned seniority list the appellants preferred departmental appeals to the Chief Secretary but as said appeals remained undecided for a period of 90 days they filed the present service appeals before this Tribunal.
3. ' We heard the lengthy arguments submitted by the learned counsel for the parties and we also went through the mass of record carefully.
4. ' In all the seven appeals the seniority list of Graduate Assistant Engineers issued on 18-2-1987 is the target of attack. Undoubtedly the appellants' names appear below the names of respondents in the seniority list. "Before going into the appellants' grievance about the incorrectness of the seniority list we would like to dispose of the preliminary legal objection raised by the respondents' counsel with regard to limitation. In course of the arguments the learned counsel for the respondents contended that the appeals were barred by limitation. It is an admitted position that all the appellants filed their departmental appeals to the Chief Secretary, Mr. Zamir Ahmed Shaikh on 26th January, 1988, M/s. Shamsuddin Qureshi and Abdul Ghafoor Sanjrani on 24th January, 1988, M/s. Muhammad Ali Depar and Bakhtiar Jathial on 27th January, 1988 and Mr.Abdul Ghafoor Buriro on 13th February, 1988. Thus, according to the appellants' own admission they went in departmental appeals after lapse of 11 to 12 months following the publication of the seniority list on 18th February, 1987. They, however, did not wait for decision of the said appeals. May be the Chief Secretary might have condoned the intervening delay. But instead they brought out the present appeals before this Tribunal after expiry of 90 days from the filing of the departmental appeals. The argument of the learned counsel for the appellants was that delay is filing the departmental appeals was due to the fact that the appellants came to know about the impugned seniority list hardly a week prior.
5. May be his statement was correct but the question arises if this Tribunal was competent to condone or in any way overlook the delay caused in filing of the departmental appeals. In this connection we may refer to 2nd proviso of subrule(1) of rule 3 of the Sindh Civil Servant (Appeals)
6. Rules, 1960. The said proviso reads as under: "Provided further that the appellate authority or as the case may be, Government may condone the delay in preferring appeal or review petition, if it is satisfied that the delay was for reasons beyond control of the appellant or for reasons that the earlier appeal or review petition was not addressed to the proper forum."
7. It is clear from the above proviso that the power to condone the delay made in filing departmental appeal is vested in the departmental appellate authority concerned. Accordingly it was for the Chief Secretary to have condoned the delay made in filing of departmental appeals before him.
8. Since the appellants did not wait for his decision, the departmental appeals filed after termination of the limitation period could not be held to have been filed in accordance with law. As such the appellants are held not to have fulfilled the mandatory requirement of filing departmental appeal under proviso (a) to section 4 of the Sindh Service Tribunals Act, 1973. The present appeals are therefore liable to be dismissed on this sole ground.
9. ' Despite the above findings, we would like to examine the appeals on merits. As required by sub- rule (1) of rule 10 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, hereinafter referred as the seniority rules, seniority of a civil servant is to be reckoned from the date of his regular appointment. In column 4 of the impugned seniority list, all the appellants are shown to have entered the cadre of Assistant Engineers on the same date namely 1-9-1986, by way of promotion. In other words the appellants were promoted on regular basis on the said date.
10. However, the private respondents whose names are mentioned from serial No,46 to serial No,84 in the impugned seniority list are shown to have been inducted in the said cadre by initial recruitment in 1983/1985. In this way the impugned seniority list shows that the date of regular appointment of the private respondents in the Assistant Engineers' cadre is earlier than that of appellants. This is not disputed even by the appellants themselves, who in their memo. Of appeal vide para. 4 thereof have stated that respondents Nos.1 to 39 were taken up directly as Assistant Engineers in the year 1983/1985. But the appellants' contention is that they were promoted to Assistant Engineers' posts much earlier than the respondents' appointment in that capacity. In support of their contention they have not pointed out any notification or order of their promotion. On the contrary our attention was drawn to the notification issued by Communication and Works Department on 1st September, 1988 whereby the appellants following the clearance by the departmental promotion committee were promoted on regular basis for the first time to the posts of Assistant Engineers (BPS-17).
11. ' As a matter of fact the appellants have claimed that the entrustment of higher charge of Assistant Engineers to them in their own pay and grade was nothing but a promotion. The learned counsel for the appellants vehemently argued that since all requirements necessary for promotion were satisfied when the appellants were put incharge of the sub-divisions, there was absolutely no justification to treat their appointments to the said posts otherwise than promotion. To boost up his submission, the learned counsel advanced the following arguments: first, the appellants were assigned the higher charge on recommendations of the Departmental Promotion Committee; second, they were given the, charge of Assistant Engineers when there were clear vacancies in the said posts; third, they held the higher charge uninterruptedly until issuance of the notification of their formal promotion; and fourth on entrustment of the Assistant Engineers' charge to the appellants, they were entitled to be adjusted in the quota of posts reserved for promotees. In elaboration of his arguments, the learned counsel placed reliance on two precedent cases of Khushi Muhammad and Syed Mahfooz Shah respectively reported as PLD 1970 SC 203 and 1983 PLC (CS.) 705.
12. ' We will dispose of the learned counsel's arguments one by one. Taking up his first argument that the appellants were entrusted the higher charge of the sub-divisions on recommendations of the Departmental Promotion Committee, therefore, the said entrustment was in nature of promotion, we may refer to sub-rule 2 of rule 7 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, hereinafter referred as 1974 Rules. The said sub-rule reads as under:-- "(2) Appointments by promotion and transfer to posts in Grade 3 to Grade-18 without special pay other than the posts for which Provincial . Selection Board has been constituted under Rule 4-A, shall be made on recommendations of the appropriate Departmental Promotion Committee."
13. ' The above rule clearly shows that the promotions to posts in Grade-3 to Grade-18 are made on recommendations of the relevant Departmental Promotion Committee. It is true that the appellants were put incharge of the subdivisions on recommendations of the said Committee. But the recommendations made by the Committee were not for their promotion but were for assigning them higher charge in their own pay and grade. We are, therefore, of the view that such recommendations of the Departmental Promotion Committee could not be automatically construed as recommendations for promotion.
14. ' The next argument of the appellants' learned counsel was equally untenable. Because appellants were put incharge of Assistant Engineers posts when there were clear vacancies in the said posts they could not, for that reason, be held to have been promoted as Assistant Engineers. It is clear from the reply contained in para. 4 of the caption "Grounds" of the written statement filed on behalf of the official respondents that appellants were made to hold the charge of sub-divisions as a stop-gap arrangement against the posts reserved for direct recruits. In this connection reference may also be made to first proviso to Section 18 of the Sindh Civil Servants Act, 1973, which reads as under:- "Provided that when in exigencies of service, the appointment for temporary service is made to higher post or grade, the appointing authority may direct that the appointee shall, instead of drawing the pay of such higher post or grade draw the pay of lower post or grade held immediately before such appointment, with such special pay as may be prescribed.."
15. ' From the above proviso which was substituted by Sindh Ordinance No,VII of 1978 promulgated on 23rd May, 1978, it would appear that appointing authority possessed the necessary power to appoint the appellants in higher posts of Assistant Engineers in their own pay and grade until direct recruits for whom the posts in question were said to be reserved became available. Accordingly it was incorrect to say that the appellants' appointment was made against clear vacancies.
16. ' Coming to the third argument of the learned counsel for the appellants that the appellants continued to hold the higher charge until issuance of notification of their regular promotion, it would suffice to say that merely because the appellants held the higher charge uninterruptedly for quite some period they could not be declared as duly promoted to the said posts in absence of the formal order of promotion.
17. ' The fourth and last argument of the learned appellants' counsel was that subsequent to the entrustment of the higher charge to the appellants, they could have been adjusted in the quota of posts reserved for promotees. In support of this argument reference was made to promotees quota fixed by the rules from time to time and the figures furnished by the learned Assistant Advocate-General on behalf of the Government in the form of two statements indicating the ratio in which the direct recruits and promotees shared the posts. It was admitted at the bar that as regards quota reserved for promotees and direct recruits, the West Pakistan Service of Civil Engineers (Buildings and Roads) (Class-II) Rules, 1967 continued to hold the field until it was changed for the first time in 1984 and for the second time in 1986. According to 1967-Rules, the direct recruits and promotees shared the posts of Assistant Engineers in the ratio of 80:20. By the Notification No,SO(C&D)I-34/81, dated 25th April, 1984, the quota of direct recruits was reduced to 70% and the remaining quota of 30% was to be shared by graduate supervisors and diploma sub- engineers in the ratio of 10:20. By subsequent Notification No,EI(C&W)-34/81(84), dated 27th April, 1986 the above quota was revised inasmuch as that 50% posts went to direct recruits, 30% posts went to graduate Sub-Engineers and the remaining 20% posts were given to diploma-holders.
18. ' As stated above keeping the above quota in view the Government compiled two statements, one dated 24-5-1989 and the other dated 18-10-1989 which were both placed before this Tribunal by the learned A.I.-G. These statements contained the figures relating to the period between 1979-80 and 1986-1987. It is an admitted position that the appellants were placed incharge of Assistant Engineers in their own pay and grade during the aforesaid period. The appellant Zamir Ahmad Shaikh, was first to be entrusted with the higher assignment on 17th December, 1978 and the appellants M/s.Faiz Muhammad and Bakhtiar Jathial were assigned the said charge in the last on 11-1-1933. It would appear that when the appellants were assigned higher charge, the 1967- rules were still in force and therefore, the ratio in which the promotees shared the Assistant Engineers' posts with direct recruits was 20:80. The strength of the posts during the said period varied from 110 to 120. It appears that from the two statements referred to above, the statement dated 24-8-1989 was more favourable to the appellants. Even if we look into that statement, it becomes clear that in each year of the entrustment of the higher charge to the appellants not less than 48 posts were available for direct recruits and the promotees were working in excess of their quota, accupying the posts reserved for direct recruits. In the next four years (1983-84, 1984-85, 1985-86 and 1986- 87), the strength of the cadre posts as shown in aforesaid statement was from 190 to 150. During this period quota was revised twice. By the first revision notified on 25th April, 1984 although the promotees quota was increased to 50% gratuate sub-engineers got only 30% share. According to this quota which continued for little less than three years, 16 to 41 posts were available for direct recruits over and above those direct recruits who were actually working. Thus, during the said three years also promotees were working against the posts reserved for direct recruits. It was after the revision of the quota on 27th April, 1986, bringing the share of graduate sub-engineers to 30% that all the appellants were promoted as Assistant Engineers on regular basis on 1-9-1986. Accordingly we are convinced that the appellants were not entitled to be considered for promotion before the quota for graduate sub-engineers was increased to 30% on 27th April, 1986. Therefore, the entrustment of higher charp to the appellants prior to the above date was against the posts reserved for direct recruits. However, if so desired the appellants could claim special pay under section 18 of Sindh Civil Servants Act, 1973 referred to above, for the period they held the higher posts in their own pay and grade.
19. ' Apart from above arguments we have also considered the two authorities relied upon by the learned counsel for the appellants. We have gone through the above reported cases. They are clearly distinguishable from the cases under consideration. In Khushi Muhammad's case the petitioners were promoted though against the posts reserved for direct recruits. In the present case the appellants were not promoted but were simply entrusted the higher charge in their own pay and grade. Similarly the facts of the reported case of Syed Mahfooz Shah are totally different from the facts of the present case. As such the said reported cases are of no help to the appellants.
20. The upshot of the above discussion is that appeals must fail both on merits and on legal grounds.
21. Accordingly` appeals are dismissed with no order as I to costs.