JUSTICE (RTD) MUNAWAR ALI KHAN:- In this appeal appellant, Abdul Jabbar Khan, has called in question the seniority position assigned to him in the seniority list of the Executive Engineers (XENS) issued on 25th November, 1985 (hereinafter referred as impugned seniority list). His case, as disclosed in the memo of his appeal, is that he joined Government service as Assistant Engineer with effect from 30-1-1969. In the seniority list of Assistant Executive Engineers (XENS) issued on 20th March 1976, he was shown senior to the private respondents mentioned at S. Nos. 4 to 11 and 14 & 15 in his memo of appeal. However in the subsequent seniority list of the same cadre dated 23-9-1981, the private respondents at S. Nos. 14& 15 were placed above his name, indicating that they were senior to him. In 1977, the appellant was considered for promotion for the first time but due to the enquiries pending against him, his promotion was deferred. Again in its meeting hold on 13th March, 1979, the DPC recommended him provisionally for the promotion until conclusion of the enquiries. However the competent authority disagreeing with the recommendations, continued to with hold his promotion. The enquiries against the appellant were finalized in 1982 with the result that in one enquiry covered by report No. 25, he was exhonorated whereas in the other enquiry a covered by report No. 24, he was awarded minor penalty of 'Censure'. Thereafter he was cleared for promotion by the DPC in its meeting held on 27-4-1983. Some how the said recommendations were not implemented until the DPC's next meeting held on 6th March 1985 when again the appellant was cleared for promotion. In pursuance of the latter clearance, the appellant was promoted to the post of Executive Engineer on 11-4-1985.
2. Subsequent to the appellant's promotion, the seniority list of Executive Engineers was made public on 25-11-1985. In the said list excepting private respondents at S. Nos. 8 to 11 who were shown junior to the appellant, the rest of the private respondents were placed above his name. Aggrieved by the said assignment of seniority position, the appellant as well as the respondents at S. No. 8 to 11 made representations, seeking protection of rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules 1975, (hereinafter referred as seniority rules). Although the requisite protection was allowed to the respondents Nos. 8 to 11, yet the appellant's representation for the similar protection was turned down vide Communication & Works Department's communication dated 13-4-1991 addressed to the appellant. Thus even the respondents at S. Nos. 8 to 11 became senior to him. The present appeal is directed against the said C&W Department's letter dis-allowing the benefit of rule 13 of the seniority rules to the appellant.
We heard Mr. Manzoor Ali Khan for the appellant, Mr. Naimatullah Qureshi for the respondent at S. Nos. 4 to 6 and 8 to 10, Mr. Fazle Ghani for respondent No. 15 and Mr. Ali Bux Laghari for the official ' respondents. The respondents at S. Nos. 7 and 11 to 14 were declared exparte as they did not turn up to contest the appeal. We also went through the relevant documents and other record.
3. As stated above, the appellant's grievance is that the impugned seniority list does not reflect correct seniority position of the appellant viz-a-viz the private respondents. As per the said seniority list, the appellant's name is shown at S. No. 42 whereas eight of the respondents namely Messrs Wajid Ali Shaikh, Nazar Ali Khoja, Zulfiqar Hyder, Khalid Mir Hazar, Dost Muhammad Chandio, Mir Ahmed Hussain Talpur, Shafique Haider Musavi and Muhammad Sadiq Chandio are placed above his name and the remaining four respondents namely Messrs Aftab Ahmed Turk, Munawar Ahmed Junejo, Ghulam Nabi Memon and Muhammad Sharif are listed below him. Subsequently the last mentioned four respondents too were made senior to the appellant after their representations for protection of their seniority in higher cadre under rule 13 of the seniority rules were allowed. It may be noted that excepting four respondents namely Zulfiqar Hyder, Khalid Mir Hazar, Dost Muhammad Chandio and Muhammad Sadiq Chandio, the rest of the respondents were junior to the appellant in lower cadre of XENS. From these junior respondents, Messrs Wajid Ali Shaikh, Nazar Ali Khoja, Mir Ahmed Hussain Talpur and Shafique Haider Musavi were promoted to higher grade earlier than the promotion of the appellant to the said grade. This was due to pendency of enquiries against the appellant at the time of his juniors' promotion. The remaining four junior respondents were also made senior to the appellant in the cadre of XENS following the acceptance of their representation under rule 13 of the seniority rules. This is how the eight respondents who were junior to the appellant in lower cadre became senior to him in the higher cadre of XENS. As for the three respondents namely Zulfiqar Hyder, Khalid Mir Hazar and Dost Muhammad who were senior to the appellant in the lower cadre, they also entered higher cadre earlier than the appellant's induction in that cadre. It was only respondent Muhammad Sadiq who was senior to the appellant in the lower cadre of XENS, was promoted on the same date i.e. 11-4- 1985 when his promotion took place. Since the said respondent was senior to the appellant in the lower cadre, he too, on that basis, was shown senior to him in the impugned seniority list. After coming to know about his seniority position in the seniority list of higher cadre of XENS, appellant alongwith respondent's at S. Nos. 8 to 11 made representation seeking the benefit of rule 13 of the seniority rules. Although the representationists - respondents were allowed that benefit, the appellant's representation was rejected. The appellant has come in this appeal against the said rejection order.
We may now proceed to examine the appellant's claim that he was entitled to the benefit of rule 13 of seniority rules and consequently to be placed above all the private respondents in the impugned seniority list of XENS. Before taking any decision on this issue, we would like to dispose the legal objection raised by the learned counsel for the respondents that the appeal was hopelessly barred by limitation. In this connection the contention of the learned counsel was that the appellant did not challenge the impugned seniority list of XENS in departmental appeal within time and as such lost opportunity of availing the cause of action accrued to him. It was further submitted on their behalf that even if the appellant considered his representation under rule 13 of the seniority rules as appropriate measure in this regard, then he should have challenged the order of rejection of his representation within period of limitation as final appellate order. Since instead of doing so, he wasted time in taking that order in further appeal which was not called for this appeal became time- barred.
4. We regret our inability to Subscribe to the above views. Perhaps it may be advantageous at this stage to reproduce rule 13 of seniority rules as under: "A civil servant, who is not promoted on his turn on the ground that -
(i) his seniority is under dispute or is not determined; or
(ii) he is on deputation, training or leave; or
(iii) disciplinary proceedings are pending against him; or
(iv) he is not considered for promotion for any reason other than his unfitness for promotion;
(v) shall, on subsequent promotion, subject to any order made by the competent authority in this behalf for the purpose of inter so seniority in the higher grade, be deemed io have been promoted in the same batch as his juniors."
It may be true that after the appellant's promotion to the higher grade of XEN, formal written order was not necessary under rule 13 here- in-above to allow him benefit of seniority in the said higher grade and on getting his belated promotion, he would rather be deemed to have been promoted in a batch with his immediate junior. But this was possible in normal circumstances when the reason of postponement of the promotion had vanished without leaving any trail adversely affecting the future prospects of the appellant. Admittedly in one of the enquiries pending against the appellant he was exhonorated but the other enquiry against him ended in imposition of minor penalty of 'Censure'. As such he was thought not to be entitled to the benefit of rule 13 of the seniority rules and therefore his seniority in XENS' cadre was reckoned from the date of notification of his promotion. It was in that context that the appellant had to make independent representation praying for allowing him the benefit of rule 13 of seniority rules. Accordingly the order by which his such representation was turned down was manifestly an original order because that order was supposed to have been passed by the appointing authority i.e. Authority competent to promote the appellant to higher post. Unless departmental appeal/review was filed against such order, the appeal before this Tribunal was not maintainable. Even then the appellant waited until the impugned seniority list was out. When he found that his placement in the said list was not correct, he instead of challenging the seniority list, made independent representation praying for protection of his seniority in the higher cadre of XENS. The appellant had obviously followed the correct legal procedure before coming to this Tribunal for relief. Accordingly the legal objection that the appeal was hit by limitation was without any force.
5. The impugned order dated 13-4-1991 whereby the appellant's representation under rule 13 of seniority rules was rejected reads as under: To Mr. Abdul Jabbar Khan, Executive Engineer, Provincial Building Division No. I, Hyderabad.
Subject:- Fixation of seniority of Executive Engineers of the C&W Department and benefit of rule 13
(1) of the Sindh Servants (Probation, Confirmation & Seniority) Rules. 1975.
I am directed to refer to your representation dated 21-12-1985, on the subject noted above and to inform you that your representation has been considered by the competent authority and rejected.
Accordingly your seniority shall be reckoned from the date you have been promoted as Executive Engineer."
6. Obviously the above order is not an speaking order. It was therefore not known what grounds weighed with the departmental authorities to turn down the appellant's representation for the benefit of rule 13 of the seniority rules. Like the appellant, the respondents Aftab Ahmed Turk, Munawar Ahmed Junejo, Muhammad Sharif Nizamani and Ghulam Nabi Memon had also made similar representations. Their cases were more or less identical with the appellant's case in that as in the appellant's case, their promotions were also deferred pending departmental enquiries against them. Despite that their representations were accepted and in consequence their seniority position stood improved in the seniority list of XENS. However the orders of acceptance of their representations were silent as to the grounds on which their cases were distinguished from that of the appellant. At this stage it may be appropriate to refer to the minutes of the meetings of the DPG held from time to time. Before referring to the minutes of the. DPC's meetings, we were shown "summary for Martial Law Administrator" dated 21-7-1977 wherein the observations made against the appellant were these: "As Mr. Abdul Jabbar Khan was involved in enquiries, the committee (i.e. DPC) decided, to defer his case till finalization the enquiries". It appears the appellant was1 ripe for promotion on the said date but due to pendency of the enquiries against him, his promotion was deferred. Again in its meeting held on 13th March 1979, while making hereinafter following observations opposite to the appellant's name "Good record of service (Reports from 1972 to 1977 are good). He is involved in an enquiry with minor charges. Not responsible for any financial loss to Govt.", the DPC recommended him for promotion provisionally till the enquiry was finalized. In the same meeting the appellant's immediate junior Mr. Wajid Ali Shaikh was also cleared by the DPC for promotion. Though the said junior was promoted w.e.f. 19-8-1979, yet the competent authority (i.e. Appointing authority) disagreeing with the DPC's recommendations for the appellant's provisional promotion, decided to keep it pending. It was however clear that the DPC who was empowered to determine the fitness or suitability for promotion declared the appellant fit for promotion because he had overall good service record and was facing the enquiry only on minor charges, not involving any financial loss to the Government.
7. The next meeting of the DPC was held on 27-4-1983. The Committee's minutes with regard to the appellant are reproduced as under: The Committee was informed that ACR of Mr. Abdul Jabbar Khan on qualification yielded 67.50 marks and 57.3 marks for over all grading and out put and quality respectively. Mr. Khan, the Committee was told, has passed the departmental professional Examination and is not under any enquiry. The committee therefore decided to recommend him for promotion to the rank of Executive Engineer (in Grade-18)."
Some how the above clear out recommendations were also not implemented and the appellant's promotion continued to remain deferred until the DPC's next meeting held on 6th March 1985. The portion of the DPC's minutes of the said meeting pertaining to the appellant read as under: "His record was scrutinized by the committee and found to be satisfactory, on the basis of qualification he had on over all grading 69.29 and as aggregate of 65.58 in quality and out put. His circulation value was good since he has worked both in the Buildings and High Ways Department - As a result of an enquiry relating to the construction of Daro Bano road a minor penalty of censure has been imposed upon him. He has passed the Departmental Examination. On the basis of his record, he was approved for promotion as an XEN with immediate effect."
8. It was in pursuance of the above recommendations that the appellant was Ultimately promoted w.e.f. 11-4-1985. Thus the DPC had been recommending the appellant for promotion right from 13th March 1979, despite the pendency of departmental enquiry involving minor charges against him and imposition of minor penalty of censure: Obviously the DPC who was determine the appellant's fitness for promotion did not consider the above factors to come in the way of this promotion.
9. Apat from above, we have come across the deatailedview of C&W Department in its U.O.NO.EI(C&W)1-2/83(85). Karachi dated 30th July 1987 with regard to the representation made by the appellant and the respondents Aftab Ahmed Turk, Munwar Ahmed Junejo, Ghulam Nabi Nemon and Muhammad Sharif Nizamani, seeking protection of their seniority in higher cadre of XENS. On the basis of its views, the Administrative Department (C&W Deptt.) ultimately recommended in para 23 of the above UO communication addressed to the S&GAD, that inter-se-seniority be fixed in the following order: 1) Mr. Abdul Jabbar Khan 2) Mr. Wajid Ali Shaikh 3) Mr. Nazar Ali Khoja 4) Mr. Khalid Mir Hazar 5) Mr. Dost Muhammad Chandio 6) Mir Muhammad Hussain Talpur 7) Mr. Muhammad Sadiq Chandio 8) Mr. Aftab Ahmed Turk 9) Munawar Ahmed Junejo 10) Mr. Muhammad Arbab Shaikh 11) Mr. Ghulam Nabi Memon (Morai)
12) Mr. Muhammad Sharif Nizamani 13) Mr. Shafiq Haider Musavi 14) Mr. Badaruddin Narejo.
Despite the above recommendations of the C&W Dept, the appellant's representation, as pointed out above, was rejected though similar representations of the above four respondents were allowed. It was perhaps due to awarding of minor penalty of 'censure' in one enquiry, that the appellant was denied the benefit of rule 13 of the seniority rules. But the said enquiry was admittedly initiated as far back as 1977. Since the appellant was promoted w.e.f. 11-4-85, it shows that his promotion was withheld for about eight years on account of pendency of two enquiries one of which had ultimately ended in minor penalty of 'censure'. In fact rule 13 here-in-above was introduced in the seniority rules to obliterate the effect of the undue delay being caused to promotion on account of pendency of departmental enquiries or such other reason. Even otherwise it would be height of injustice to deny the promotion for so many years due to minor penalty of 'censure'. If such penalty were made the basis of the postponement of promotion, it would at the most remain effective for a year or so until one good report was earned in the following year. In this connection we were shown Government's circular issued by the S&GAD on 23rd July 1975 whereby imposition of penalty of 'censure' was to be regarded as "one adverse remark" and the eligibility for promotion of the Civil Servant affected by such remark was to be considered in the overall context of his seniority and previous and subsequent sendee record. Thus even this circular did not permit the postponement of promotion if in the overall context of seniority and the Civil Servant's whole service record, he was entitled to the promotion. Moreover the appellant who was not to blame for protection of the enquiry proceedings could not justifiably be made to suffer for the period it took to conclude. The enquiry started in 1977 was in all fairness expected to have been completed in the same year. If the appellant had been denied his promotion due to minor penalty of censure' resulting from the said enquiry, he would have at the most made to wait until next year i.e. 1978. But as per Government circular referred to above he could even have been promoted in the same year of 1977, notwithstanding the imposition of minor penalty of censure, if in the overall context of his seniority and service record he was cleared for the promotion.
10. Apart from above, it would be noticed that 'censure' is one of the prescribed penalties. Obviously it is in nature of warning which should be taken in that sense alone. It should hot be allowed to cause postponement of promotion which is in itself a separate; prescribed penalty. If due to awarding of penalty of 'censure', appellant's promotion was deferred for whatever period, he would be considered to have suffered two penalties simultaneously for one wrong, he was held to have committed. Moreover it has been held not only by this Tribunal but also by other Service Tribunals that for the reason of imposition of minor penalty promotion of the civil servant should n6t be affected. In this connection reliance has been placed on this Tribunal's case of Bashir Ahmed Shah (1992 PLC (CS) 345). In the said case two reported cases of Punjab Service Tribunal were taken note of: namely, the case of Tajamal Hussain (1985 PLC (CS) 848) and the case of Nazir Ahmad (1986 PLC (CS) 228), agreeing with the views expressed in the said cases, it was held: ".... We endorse the spirit of the same authorities and hold that minor penalty like 'censure' should not be taken so far as to deprive the civil servant of his due promotion."
11. For the above reasons we hold that imposition of minor penalty of 'censure', should be no ground to deny promotion to the appellant otherwise due to him. The appellant's immediate junior as per XENS seniority list dated 23rd September, 1981 was respondent Mr. Wajid Ali Shaikh who was admittedly promoted to the post of XEN w.e.f. 19-8-1979. In view of the provisions of rule 13 here-in- above the appellant, consequent upon his promotion as XEN, shall be deemed to have been promoted in the same batch with his immediate juniors namely Wajid Ali Shaikh w.e.f. 19-8-1979.
Accordingly we hold that the impugned communication of C&W Dept, was not maintainable and hence is hereby set aside. We further direct that the appellant be placed immediately above the name of Mr. Wajid Ali Shaikh who appears at S. No. 34 of the impugned seniority list. By his such placement, the appellant would become senior to all the private respondents in the seniority list of XENS.
12. However the learned counsel for respondent Muhammad Sadiq Chandio submitted that as no written order was necessary under rule 13 of seniority rules, the said respondent too after his promotion to higher grade post would be deemed to have promoted to XEN's post with effect from the date his immediate junior in XENS' cadre was promoted. In para 3 of his written statement it was however admitted by the respondent; "This respondent was not promoted to the post of Executive Engineer on that date as disciplinary proceedings were pending against him. The two disciplinary proceedings against this Respondent culminated in the imposition of minor penalty of censure against this Respondent in one case and imposition of the minor penalty of withholding two increments in the other case."
13. In view of his above admission, it was for said respondent to clarify when and in what circumstances the said two enquiries were started against him and on what dates they were concluded. As disclosed in the minutes of the meeting of the DPC held on 6th March, 1985, the respondent Muhammad Sadiq was cleared for promotion on the said date. The observations made by the DPC were: "On the basis of his record, however, he was cleared for promotion as an XEN with immediate effect." These observations were significant in as much as that he was not to be given the benefit of rule 13 of seniority rules. Even otherwise his case was not of normal exhonoration, so that after the enquiries pending against him had ended, his promotion to higher post of XEN would automatically be deemed to have been made in a batch with his immediate juniors, needing no written order for that purpose. It was necessary that after his promotion of XEN, he should have moved representation for promotion of his seniority in the higher grade under rule 13 of seniority rules, particularly when he found that the position assigned to him the seniority list of XENS dated 25-11- 1985 was not correct. Since he made no such move, he would be considered to be obviously satisfied with his enlistment in the impugned seniority list. Even otherwise his position in the present appeal is of defendant seeking to defend his existing placement in the said seniority list which of course subject to appellant's placement above the name of Mr. Wajid Ali Shaikh, would remain un- disturbed.
14. As a result of above discussion the appeal is allowed with no order as to costs.
15. Given under our hand, and the seal of this Tribunal this 25th day of November, 1992 at Karachi.