' MUHAMMAD RAFIQ TARAR, J.---This appeal by Agha Rafique Ahmed appellant with the leave of this Court is directed against the judgment of the Sindh Service Tribunal, dated 29-1-1989 whereby his service appeal was dismissed. The leave grant order reads as under:--- "This petition is in continuation with the earlier one which culminated by the judgment of this Court, dated 15-1-1984 in Civil Appeal No,K10 of 1983 between the parties by which while setting aside the earlier order of Service Tribunal, dated 3-1-1983 it was directed that the order of the Provincial Government, dated 8-7-1979 should be implemented forthwith. By that order, the services of the petitioner who was surplus Assistant Traffic Manager (Grade-16) Sindh Road Transport Corporation, were placed at the disposal of the Secretary, Food Department, Government of Sindh for absorbing him "in accordance with the instructions contained in this Department's Circular letter No,E&A (S&GAD) 1(88)/78, dated 12th August, 1978, against the available vacancy of Ward Rationing Officer". In obedience to this direction, the petitioner was inducted in the post of Ward,Rationing Officer (Grade-16) with effect from 17-3-1984, and was thereafter granted seniority from the above date of appointment, thus making him junior to respondents 4 to 25 who had been appointed during the intervening period between the order of the Provincial Government, dated 8- 7-1979 and judgment of this Court, dated 15-1-1984. This led to second round of litigation up to the Service Tribunal in which petitioner claimed seniority over the respondents 4 to 25. Finally, the Service Tribunal rejected his claim by the impugned judgment, dated 29-1-1989. It is in these circumstances that petitioner now seeks leave to appeal.
Mr. S. Nasiruddin, learned counsel for the petitioner submits that in view of the direction issued by this Court in the earlier judgment, dated 15-1-1984 petitioner had the first claim over any vacancy of Ward Rationing Officer in Grade-16, that occurred after the order of the Provincial Government, dated 8-7-1979 and therefore, his claim to the seniority over the aforesaid respondents is irresistible.
This plea, amongst others, deserves consideration. We, therefore, grant leave to appeal and allow the petition."
2. It is contended on behalf of the appellant that since the Chief Secretary had ordered his absorption as Ward Rationing Officer and even the Supreme Court had observed that no justification had been shown for not implementing that order the appellant should be deemed to have been appointed as such with effect from 8-7-1979 and is entitled 'to be placed at Serial No,13 above Muhammad Bux Sheikh respondent No,4 of the seniority list of Ward Rationing Officers, dated 30-1-1986. This contention is however resisted by the Government of Sindh and other respondents according to whom it is the actual regular date of appointment to a post which would determine the point of seniority.
3. We have heard the parties and gone through the record. It is not denied that the competent authority in the Government of Sindh had ordered the absorption of the appellant as Ward Rationing Officer (Grade-16) against the available vacancy. This was later confirmed by this Court with the direction that the order' of the Government of Sindh, dated 8-7-1979 should be implemented forthwith.
4. In this view of the matter the only question demanding resolution was when did the first vacancy of Ward Rationing Officer become available. The delay, if any, in filling that vacancy or ignoring the appellant thus would not go to the disadvantage of the appellant. The notification, dated 28th July, 1979 on the record shows that six Assistant Food Controllers were promoted on ad hoc basis to the post of the Ward Rationing Officer (Grade-16) and posted at various places. This makes it quite clear that not one but six posts of the Ward Rationing Officers were vacant when the Chief Secretary passed order of absorption in favour of the appellant, The department, it seems, defeated that order by delaying its implementation and meanwhile filled the available post by ad hoc promotions from the lower ranks. No premium can be placed on the acts of those officers in the department who ignored it and took steps rather to defeat it.
' In view of what has been stated above this appeal is allowed with the. Result that the appellant shall be deemed to have been absorbed against the first available post of the Ward Rationing Officer in terms of order of Chief Secretary to Government of Sindh, dated 8-7-1979 and his seniority shall be counted accordingly by placing him above respondent No,4 in the seniority list.
The respondents shall also pay the costs of the appellant.