1. MUNAWAR ALI KHAN (CHAIRMAN): --The appellant Mr. Abbas Qasim, is an employee of the Sindh High Court. He has a dispute with respondent Mr. Sultan Nasir, over seniority in the cadre of Superintendents. The factual background of the said dispute is as follows. The appellant was Assistant when he was promoted as Superintendent in the clear vacancy of Ansar Hussain Zaidi who went as Registrar/Nazir. By the same order of 27th March, 1976, Mr. Sultan Nasir, Reader to Chief Justice, was promoted as Superintendent in the leave vacancy of Mr. Afzal Ali. However, on return of Afzal Ali from leave on 29-b-1976, the appellant and not Sultan Nasir was reverted to his substantive post of Assistant. The appellant challenged the order of his reversion in departmental appeal which was referred to the Division Bench for disposal. The Appellate Bench took the view that the appellant's reversion was made under misapprehension inasmuch as that he was promoted in the leave vacancy and as such his reversion was unjustified. However, the learned said Bench left it to the discreation of the learned Chief Justice to redress the appellant's grievance with regard to his reversion or in the alternative he be accommodated in future vacancy of Superintendent. Although the then Chief Justice accepted the second alternative, yet Mr. Muhammad Zamir, the Reader was promoted as Superintendent in the next vacancy vide Notification dated 31-12-1981. The appellant was ultimately appointed as Superintendent on 13-1- 1982 in the leave vacancy of Mr. Sultan Nasir.
2. On 4-5-1982 the appellant made representation praying for giving him seniority over Mr. Sultan Nasir. Pending the disposal of his said representation, confirmation of Superintendents was taken in hand. When a proposal of confirmation of Superintendents named therein was circulated, only the appellant filed his objection, reiterating his seniority over Sultan Nasir. After hearing him, and Sultan Nasir, the learned Senior Puisne Judge rejected the appellant's objection. While accepting the recommendations of the said learned Senior Puisne Judge, the learned Chief Justice ordered confirmation of the Superintendents vide his order dated 6-10-1987. Aggrieved by the said order of confirmations, the appellant questioned it in his departmental appeal dated 1-12-1987 addressed to the Chief Minister. As the said appeal remained undecided for the statutory period, the appellant filed the present appeal on 29-3-1988. Initially the said appeal was dismissed in limine on the ground of lack of jurisdiction vide Service Tribunal's order dated 13-10-1988. Unsatisfied with this order, the appellant filed appeal before the Supreme Court. By its judgment dated 2-2-1993, the Supreme Court remanded the case back to the Service Tribunal for its decision on merits. After receipt of the case, in the Service Tribunal the appellant moved for amendment of the appeal. The proposed amendments which were neither opposed by the learned AA.-G. Nor by the private respondents were allowed and the appellant ultimately filed his amended memo. Of appeal on 28- 9-1993.
3. We heard the learned counsel for the appellant as well as of the official respondents. The private respondent Sultan Nasir, who was unrepresented, however, did not submit his arguments. We also went through all the relevant documents very carefully.
4. In the opening paragraph of the memo of appeal, it is indicated that the appellant was aggrieved by order dated 6-10-1987 whereby inter alia the appellant's representation dated 4-5-1982 for seniority vis-a-vis Sultan Nasir was rejected; his objections dated 29-9-1985 against his confirmation next to Salimuddin, Superintendent, were overruled and his reversion by order dated 2nd July, 1976 was justified. Despite this, the appellant's prayer in the amended memo of appeal is that his reversion order be set aside declaring it as legally unsustainable. However, in the unamended memo of appeal his prayer was that the order dated 6-10-1987 was rescinded.
5. Though appellant's above two prayers are materially different, we have to confine ourselves to considering his latest prayer as mentioned in the amended memo. Of appeal. According to that prayer he has sought his reversion order to be set aside. It may be pointed out that reversion order was passed as far back as 2nd July, 1976 whereas the present appeal was filed on 29-3-1988, after lapse of nearly 12 years. No satisfactory explanation is available on record for overcoming such a long delay. On the contrary it is appellant's own admission that his departmental appeal which he had filed in June, 1979 against the order of his reversion was disposed by the Division Bench by its order dated 5th June, 1980. The Division Bench while seized with the appellant's departmental appeal, had taken note of three years delay that he had made even in filing the departmental appeal but had overlooked the same in the interest of justice. The order passed by the Division Bench was obviously adverse to the appellant inasmuch as that instead of setting aside the order of appellant's reversion, the learned Division Bench had left to the discretion of the learned Chief Justice to choose either of the two alternatives suggested by the Bench.
6. The admitted position is that the appellant did not challenge the order passed by the Appellate Bench before this Tribunal. Since the Division Bench had disposed the appellant's departmental appeal by order dated 5th June, 1980, the appellant could approach this Tribunal against the said order and in that eventually his appeal should have been filed latest by 5th July, 1980. But it was actually filed on 28-3-1988, after the delay of nearly eight years. In the meantime the learned Chief Justice though accepted the second alternative, suggested by the Division Bench, yet he did not act upon it as the appellant was not accommodated in the next vacancy of Superintendent but he was appointed in the leave vacancy following the next vacancy vide order dated 13-1-1982. About four months after his appointment to the post of Superintendent, he made a representation praying for giving him seniority over Mr. Sultan Nasir in the cadre of Superintendents. From all of this, it was clear that appellant had quietly accepted his subsequent appointment to the post of Superintendent and as such the chapter of his alleged undue reversion stood closed. This appeal, as stated above, has been filed about 3 years after, the appellant's departmental appeal was disposed of. There is absolutely no explanation for so much delay, much less the convincing one, and, therefore, the appeal, if linked with remedy of setting aside of the reversion order, is hopelessly time-barred. Consequently, it is liable to be dismissed on this ground.
7. Despite the above findings, even on merits the appellant has no case. The appellant was no doubt promoted in clear vacancy of Ansar Hussain Zaidi but it is not his case -that he was confirmed in the post of Superintendent before the date of his reversion on 2-7-1976. In other words he was appointed in the post of Superintendent only in the officiating capacity. This is confirmed even by the notification dated 27th March, 1976 which clearly indicates that the appellant was promoted only on officiating basis as Superintendent, High Court. His reversion took place after about three months. In this connection reference may be made to section 12 of the Sindh Civil Servants Act, 1973; which reads as under: -- "A civil servant appointed to higher post or grade ad hoc or on temporary or officiating basis shall be liable to be reverted to his lower post or grade without notice."
8. After going through the above provision of law no doubt is left in our mind that a civil servant who is working only in an officiating capacity can at any time be reverted to his lower post without giving him any notice. The order dated 2nd July, 1976 whereby the appellant had been reverted is reproduced as under: -- "On resumption of duty of Mr. Afzal Ali, Superintendent ant' 29-6-1976 (F.N.) Mr. Abbas H. Kassim, who was promoted in his leave vacancy has been reverted to his substantive appointment as Assistant w.e.f. 29-6-1976 (F.N.).--- It would appear that the above order of reversion of the appellant is simpliciter unaccompanied by any stigma. On return from leave of Mr. Afzal Ali in whose leave vacancy Sultan Nasir was appointed, it was not necessary that said appointee should have reverted and not the appellant.
9. As has been pointed out above, the appellant was only officiating as Superintendent. He was liable to be reverted at any time without notice. Prima facie his order of reversion was inconformity with the requirement of section 12 reproduced hereinabove. However, the appellant's learned counsel submitted that appellant's reversion was accompanied by stigma. In this connection, he has invited our attention to the note dated 6-10-1987 submitted by the Senior Puisne Judge for perusal of the learned Chief Justice. It may be pertinent to reproduce the relevant portion of his note as under: -- "It may be pointed out here that the above factual position is not correct. Mr. Abbas Kassim was reverted back to his substantive post by the Hon'ble Chief Justice Mr. Justice Abdul Kadir Shaikh as he was of the view that his work was not satisfactory, as is indicated in his order, reproduced hereinabove. Be that as it may, the learned Judges on the above incorrect assumption of fact recommended two alternatives, namely, either Mr. Abbas Kassim's grievance be redressed or that alternatively he may be accommodated in future vacancy."
10. It is clear from the above portion of the learned Senior Puisne Judge's note that Division Bench had suggested two alternatives for disposal of the appellant's grievance under misapprehension though the correct factual position was that Abbas Kassam was reverted by the then Chief Justice Mr. Justice Abdul Qadir Sheikh as he was of the view that his work was not satisfactory. When the appellant's learned counsel was confronted with this position, he still insisted that even on that ground the reversion of the appellant could not be held simpliciter. According to the learned counsel he was entitled to show-cause notice. We are sorry we cannot agree to this view of the learned counsel. Even after his initial promotion to the higher post, the appellant was supposed to be on probation. During the period of probation, if his work was not found satisfactory, he could be reverted on that ground. Therefore, even if we accept the fact that the appellant's reversion was based on the ground of his unsatisfactory work that could not be regarded as stigma accompanying his reversion nor he would be entitled to show cause notice for this reason.
11. Accordingly we are of the view that there was nothing wrong with the reversion of the appellant and it was quite in order and in conformity with the law.
12. For above reasons we see no merit in the appeal, which is accordingly dismissed with no order as to costs.