JUDGMENT JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN).- This appeal arises from the age-old dispute between the appellant, Hamid Jamil and Private respondent, Mir Afzal Khan over the seniority in both the cadres of Excise and Taxation Sub- Inspectors and Excise and Taxation Inspectors. The appellant's prayer is that the orders whereby the private respondent has been given seniority over him in the said cadres be quashed.
2. The factual back ground of the seniority dispute involved in this appeal is as follows.. The appellant and the private respondent were respectively working as upper division clerk and lower division clerk in the Secretariat of Chief Commissioner, Karachi when the said city was merged in the province of West Pakistan. In the wake of the Karachi's merger, the Chief Commissioner's Secretariat was re-organized as the office of Commissioner Karachi. In result a number of staff members including the appellant and the private respondent were declared surplus. They were relieved by the office of the Commissioner, Karachi vide its letter dated 21st September, 1962, with direction to report to the Excise and Taxation Department for absorption in that Department.
Meanwhile the private respondent had applied for one of the posts of Excise and Taxation Sub- Inspectors which were advertised. Consequent upon his selection, he was appointed as Excise and Taxation Sub-Inspector vide order No.624/Estt: dated 18-9-1992. He however joined in that capacity on 22-9-1962. As for the appellant, he reported for his duties to the Excise and Taxation Deptt: on 23-9-1962 when he was absorbed in the said Department as Senior Clerk. Subsequently on his representation, the appellant was promoted to the post of Excise and Taxation Sub-Inspector vide order dated 22nd December, 1962 issued by the Directorate of Excise and Taxation, Karachi. The appellant's promotion order was subsequently amended vide Directorate of Excise & Taxation, Karachi's order dated 7-5-1964 also on the appellant's own initiative. As a- result of the amendment, the promotion of the appellant was to take effect retrospectively with effect from 23- 9-1962.
3. However in the seniority lists of the cadre of Excise and Taxation Sub Inspectors issued from time to time the appellant was placed above the private respondent, though both of them were shown to have entered the said cadre on the same date i.e. 22-9-1962. Somehow the Appellant alongwith some juniors of the private respondent were promoted as Excise and Taxation Inspectors on 9-9- 1971 whereas the private respondent was promoted to such post subsequently on 25-4-1972.
Meanwhile the posts of Excise and Taxation Sub-Inspector and Excise and Taxation Inspector were respectively redesignated of Excise and Taxation Inspector and Assistant Excise and Taxation Officer. The private respondent kept on making representations with regard to his late promotion and seniority position vis-a-vis the appellant. The matter was ultimately clinched by the order dated 22nd February 1990 passed by the Secretary, Excise & Taxation Department whereby the private respondent was held senior to the appellant not only in the lower cadre of Excise and Taxation Inspectors but also in the higher cadre of Assistant Excise and Taxation Officers.
Thereupon the appellant preferred departmental appeal dated 19-3-1990 which was rejected by the order dated 6-12-1990. The present appeal is directed against the said appellate order in which the original order dated 22nd February, 1990, of the Secretary, Excise and Taxation Department Obviously stood merged.-
4. We heard the arguments of the learned counsel for the parties at great length and also carefully examined all the documents relevant for disposal of the appeal.
5. It is an admitted position that consequent upon the merger of Karachi in the province of West Pakistan the Secretariat of the Chief Commissioner, Karachi was reorganized as the office of Commissioner, Karachi. Both the appellant and the private respondent who were working as upper division clerk' and lower division clerk in the Chief Commissioner's Secretariat were declared surplus alongwith the other staff in the wake of the reorganization and their services were placed at the disposal of the Excise and Taxation Department for absorption in that Department. In the meantime the private-respondent who had applied for one of the posts of Excise and Taxation Sub-Inspectors, which were advertised was selected for the same post and his appointment order was issued on 18-9-1962. Accordingly on being relieved from the Commissioner's Office on 21-9- 1962, he joined the new post of Excise and Taxation Sub-Inspector on 22-9- 1962. It is also not disputed that the appellant reported for his duties .In the new Deptt, on 23-9-1962 when he was first absorbed as Senior Clerk. It was on his representation that he was promoted to the post of Excise and Taxation Sub- Inspector by order of the Director Excise and Taxation Karachi, dated 22nd December, 1962. On his further representation the said order was amended vide order dated 7-5- 1964 of the Director Excise and Taxation Karachi and it was given retrospective effect from 23-9- 1962, the date of his joining the Excise and Taxation Department. Although serious objection was voiced on behalf of the private respondent with regard to giving retrospective effect to the appellant's promotion as Excise and taxation Sub-Inspector, it was appellant's own case that he entered the lower cadre of Excise and Taxation Sub-Inspectors (redesignated as Excise and Taxation Inspectors) as promote w.e.f. 23-9-1962: It was also not denied by the appellant's learned counsel that the private respondent joined the said cadre one day earlier on 22-9-1962, as direct recruit. Since both the appellant and the private respondent had joined the new cadre of Excise and Taxation Sub- Inspectors, the former by promotion and the latter by direct appointment, through their own efforts, they were not entitled to the benefit of previous service-in determining their seniority. Accordingly we should have no doubt that the private respondent who had entered the new cadre one day earlier was senior to the appellant. However in the seniority lists of the said cadre available on record, not only the appellant was shown to have entered the cadre of Excise and Taxation Sub-Inspectors on the same date viz 22-9-1962 on which the private respondent had joined it but his name was also placed above the name of private respondent. In view of the admitted position, as. Has been explained above, we are of the view that the aforesaid entries in the seniority lists were owing to clerical error. That was perhaps the reason why the private respondent attached no importance to such entries, as he took no steps whatever to get them rectified.
6. The above statement with regard to inter se seniority between the .Appellant and the private respondent continued until 9-9-1971 when the appellant .Md some other juniors of the private respondent were promoted to the posts of Excise and Taxation Inspectors. In the process the private respondent who, as has been held above, was senior to the appellant in the lower cadre, was ignored. He was however promoted to the said post about seven months later on 25-4-1972.
The question arose why the appellant was ignored for promotion when his juniors including the appellant were promoted to higher posts. According to the appellant's learned counsel the private respondent was not only passed over for promotion but was also superseded on account of his bad record. In support of his contention he referred to a number of documents which had been annexed with the memo of appeal. On the other hand, the private respondent's own plea was that his promotion was only deferred until conclusion of the departmental enquiry which was pending at the time of promotion of the appellant and his other juniors. In this connection his learned counsel had relied upon the official version of the case and the ultimate findings of the committee which was specially constituted to investigate into his seniority position.
7. We have to make a detailed probe into the above two conflicting versions in order to find which version was correct because on our such, finding depends the upholding or setting aside of the impugned orders giving an edge to the private respondent over appellant in seniority. Taking up the appellant's version, it would be noted that no specific document was produced to prove the truth of the version. However we have carefully perused as many as nine documents relied upon in this connection. Although seven of them were only in the shape of show-cause-notice/statement of allegations, there was no further indication as to how they were finally disposed. One of the remaining two documents, was a 'reprimand' issued to the private respondent in January, 1964, as his explanation submitted on 3-12-1963 was not satisfactory: Obviously even this document would not help us much because allegations for which the private respondent's explanation was called were not made available to us. The ninth document which carred a warning for the private respondent was admittedly issued long after his promotion to the post of Assistant Excise and Taxation Officer and as such it had no bearing on the said promotion. ,
8. It was next contended by the appellant's learned counsel that the private respondent had made representation against his supersession but the same was rejected. In reply the argument of the other side was that the representation referred to by the appellant's learned counsel was not against the alleged supersession but it was made against the simple fact of not promoting the private respondent. Although a copy of the said representation has not been produced, yet we have been shown the order dated 18th January 1972 whereby the representation had been rejected. It reads as under: "The representation dated 14-10-1971 of Mir Afzal, Excise and Taxation Sub-Inspector received with your communication noted above has been considered and rejected. The representationist may be informed accordingly.
2) You are requested to intimate to the Excise, and Taxation Sub- Inspector the decision taken on his representation for expunction of Adverse remarks and the charge sheet.".
Prima facie the above order speaks of rejection of the private respondent's representation. But in absence of the representation, it can not be said with certainty if it was directed against the private respondent's supersession or it had just called in question the simple ignoring of the representationist. However para 2 of the above rejection order gives some insight about the representation. In the said para, the Director, Excise and Taxation Karachi, has been required to intimate the private respondent as to what happened to his representation for expunction of the adverse remarks and the charge sheet made against him. This clearly shows that by the time the above rejection order was made some decision on the private respondent's representation was pending. If so, his promotion was seemingly deferred until after making of such decision. It is an admitted position that the promotion of the private respondent took place only after a gap of nearly seven months. Had he been superseded due to bad record he would have normally waited at least for one year, if not more time, so as to earn bare minimum, of one good ACR. The postponement of his promotion for shorter period of only seven months or so leaves no doubt in our mind that as. Soon as he was cleared in the enquiry and also after expunction of his adverse remarks it was considered improper to delay his promotion any further. This view finds support from the findings of the committee which was constituted to investigate into the question of seniority of the private respondent vis-a-vis the appellant. On page 3 of its report appears the committe's conclusion No.1(6) which is pertinent to the point under consideration. It reads as under: "(6) In the absence of record otherwise, it is presumed that due to an enquiry pending against Mr. Mir Afzal he was not considered for promotion as Exise and Taxation Inspector with effect from 9-9- 1971 and that he was deferred, but not superseded, since after a lapse of only seven months i.e. To 25-4-1972 he was promoted as Excise and Taxation Inspector. Under these circumstances, he is eligible for protection of seniority under Rule 13."
Apart from above, even the. Plea' taken by the Government Department confirms the above position. The relevant plea is contained in para 6 of the written statement filed on behalf of the official respondents. It reads as under: "6. With regard to para 7, it is submitted that the appellant was promoted to the post of Inspector on 9-9-1971 whereas the respondent No.1 was not considered due to the fact that the respondent was facing an enquiry. After the said enquiry was over, he was promoted on 25-4- 1972 and thus his promotion was delayed. Hence respondent No.1 has been allowed his due seniority under rule 13 of the seniority Rules 1975....".
10. The above official version should, in our opinion, normally be believed as authentic unless it is proved otherwise. There is no material on record to falsify the plea taken in the written statement.
On the contrary we are convinced from the discussion made in the foregoing paragraphs that the official. Version was correct inasmuch as that at the time of promotion of the appellant and some other juniors of the private respondent as Excise and Taxation Inspectors, the latter was not superseded but his promotion was only postponed until after completion of the enquiry pending against him.
11. Having arrived at the above conclusion, we should proceed to dispose the next contention of the appellant's learned Counsel, that since the seniority Rules of 1975 were not inforce at the time of promotions involved in the case, the rule 13 of the said Rules was not attracted and the unsigned order was without jurisdiction. It is true that-promotion of the appellant took place in September, 1971, and that of the private respondent was made in April 1972, when the seniority Rules of 1975 had not yet come into force. But the impugned order was passed on 22nd February, 1990, when the said Rules had already been promulgated. The question that we have to decide is if the promotions which had taken place in 1971 and 1972 could be brought within ambit of 1975 - Rules with a view to decide the issue of inter-ye-seniority between the appellant and private .Respondent. It would be seen that at the time of making the above promotions; the said rules were operative/-On careful perusal of these rules it is found that the interests of senior official whose promotion was not made simultaneously with that of his junior colleagues were well protected, so far their inter se seniority was concerned. In this connection the learned counsel for the private respondent had drawn our attention to Explanation -1 and Explanation II immediately following the rule 9 of the said Rules.
They are reproduced as under: " Explanation I - if a junior official in a lower grade is promoted to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interests of his seniors in the fixation of his seniority in the higher grade.
Explanation II - If a junior official in a lower grade is promoted to higher grade by superseding the senior officer and subsequently that official is also promoted the official promoted first shall rank senior to official promoted subsequently."
12. Since the private respondent's promotion was delayed on account of pendency of enquiry against him, the Explanation - I would be attracted here where under pending the conclusion of the enquiry against the private respondent, his juniors in the lower grade including the appellant had been promoted obviously temporarily in the public interest and" therefore they would not thereby claim seniority over the private respondent who too was later promoted to the said higher grade.
Although this explanation was not in force at the time of the impugned order, the principle enshrined therein was obviously adopted in rule 13 of the Seniority Rules 1975. As provided in rule 13, if the promotion is withheld on account of pendency of any departmental enquiry, or any such other reason, the civil servant concerned would get his due seniority in the higher grade after his promotion to the said grade. Accordingly the impugned order could be passed under rule 13 here- in-above and not under Explanation I of the said Rules which were no longer in existence. As pointed out above the similar benefit in seniority could be allowed to the private respondent even under the said rules. Therefore the material point, in our opinion, was whether the private Respondent was entitled to seniority over the appellant in higher grade after he was promoted to that grade following the completion of the enquiry due to which his promotion had been postponed. Since the reply to this question was in the affirmative, it was immaterial whether the impugned order was passed under the said rules or the Seniority Rules of 1975. 0
13. The last point agitated by^ the appellant's learned counsel was that inspite of issuance of repeated seniority lists wherein the private respondent was shown junior to the appellant, the former took no steps at his earliest opportunity to get his seniority position rectified. According to the learned counsel the belated action taken to rectify the private respondent's seniority vis-a-vis appellant and the orders passed in consequence could not be legally supported. The submission made on behalf of the private respondent however was that right from the day wrong was done to him by allocating wrong seniority position he had been making applications until his representation made to the Minister concerned lead to constitution of special committee for investigation into his seniority and report. The said committee submitted the .Report favourable to him and it was on the basis of the recommendations of that Committee that the impugned order was passed whereby the private respondent was recognized as senior to the appellant in both the lower adder of Excise and Taxation Sub-Inspector and the higher cadre of Excise and Taxation Inspectors.
14. As has been noted earlier, the appellant's learned counsel had himself" conceded though not expressly that the private respondent was senior to the appellant in lower cadre. Even otherwise after making detailed study of the case we had also come to the same conclusion that private respondent was senior to the appellant in lower cadre. As for the higher cadre we have already held lor the detailed reasoning given above that he had been rightly allowed seniority over the appellant in the said cadre. The question of limitation raised by the appellant's learned counsel in course of his arguments, would not in our opinion, affect the private respondent as it is not he who had come to this Tribunal for relief. Similarly we do not think that the impugned order whereby the private respondent had been granted relief was time-barred. Unless any limitation was prescribed IW_ the Executive Authorities for passing orders in particular field, we think they were free to provide relief to the aggrieved party whenever their grievance had come to their notice. In this connection we may refer to recent authority of the Supreme Court reported as Mrs. Aqeela Asgharali - Vs - Miss Khalida Kliatoon (PLD 1991 Supreme Court 1118) wherein it was held; "However there is nothing either in this principle or in any other principle that where a right of party is limited, the power of the executive or competent authority gets limited thereby and the right of party and power of the authority become co-extensive. Survey of law laid down by this court would negate the conclusion as was drawn by the Service Tribunal." In view of - the above authority the power of the competent authority was not circumscribed by any limitation and as such the impugned order passed by the Secretary, Excise and Taxation Department on recommendations of the Special Committee was not bad on the ground of limitation.
15. In view of above discussion we see no justification to interfere with the impugned order which is consequently upheld. The appeal is therefore dismissed with no order as to costs.
16. Given under our hands and the seal of this Tribunal this 19th day of March, 1992.