1. MUNAWAR ALI KHAN (CHAIRMAN).---As disclosed in the opening paragraph of the memo of appeal, the appellant Allah Bachayo Bhutto, Agriculture Engineer, was aggrieved by appellate order dated 16-3-1993 of the Chief Secretary, which was communicated to him by letter dated 18- 4--1993 of the Secretary, Agriculture and Wildlife Department. The facts leading to the passing of the above order, as stated in the memo. Of appeal, in brief are as follows. The appellant joined the Agriculture Department as Mechanic in 1961. Subsequently he was promoted first as Unit Supervisor with effect from 15-2-1963 and then as Assistant Agriculture Engineer in 1971 on ad hoc basis. His services in the latter capacity were regularized with effect from 12-6--1978. However, all the eleven private respondents were inducted in the cadre of Assistant Agriculture Engineers after the appellant's entry in the said cadre. Despite that the appellant was placed at S.No. 23 instead of S. 20 in the seniority list of Assistant Agriculture Engineers as it stood on 1-9-1981. The officers shown at S. Nos. 20, 21 and 22 were regularized by Notification dated 12-8-1978 and as such they were junior to the appellant. The application was made by the appellant for rectification of the said error.
2. Instead of disposing his application, the same error was repeated in the seniority lists issued in 198: and 1983.
3. In pursuance of sub-rule (2) of rule 3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 a notification dated 15th September, 1982 was issued promulgating fresh rules for recruitment to the posts in the Directorate of Agricultural Engineering. In the light of the said rules the seniority list of Assistant Agriculture Engineers was bifurcated in 1986 into two categories namely Graduate Assistant Agriculture Engineers and Non-Graduate Assistant Agriculture Engineers. The name of the appellant was mentioned at S.No. 9 in the seniority list of Non- Graduates whereas the names of all the eleven private respondents appeared in the seniority list of Graduates. Although the appellant did his graduation in 1986, yet in the seniority list issued in 1988, the appellant's name appeared below the respondents Nos. 9 to 14 and respondents Nos.4 to 8 Were promoted to BPS-18. Feeling aggrieved by the daid developments, the appellant made representation which was turned down vide the Agriculture Department's letter dated 19th February, 1987, addressed to the Director, Agriculture Engineer, Hyderabad. The appellant challenged the said order of rejection of his representation yet in another representaion dated nil addressed to the Secretary, Agriculture Department. That too, met with the same fate vide Agriculture Department's letter, dated 28th December, 1987 addressed to the Director-General Agriculture Engineering, Hyderabed. Both the above orders were challenged by the appellant in appeal filed before the Chief Secretary on 1-2-1988.-This said appeal remained undisposed for over four years, whereafter the appellant was constrained to file Constitution Petition NO:D-53 of 1992 which was finally disposed on 9-9-1992 with direction to dispose the appellant's above appeal with one month. Consequently, final order dated 16-3-1993 was passed and it was communicated to the appellant by letter dated 18-4-1993, whereby the appellant's seniority in the aforesaid cadre of Assistant Agriculture Engineers was fixed with effect from March, 1986, the date of his graduation, instead of 12-6-1978 when his services as Assistant Agriculture Engineers were regularized.
4. Unsatisfied with the said order, he filed the present appeal on 17-5-1993. However he was promoted to BPS-18 four days earlier vide promotion order dated 13-5-1993.
5. We heard Mr. Abdul Sattar Mughal for the appellant, Mr. Muhammad Aqil Awan for respondents Nos. 5, 6, 8, 13 and 14 and Mr. Abdul Latif Ansari, AA: G. For official respondents. The rest of the respondents were ex parte: We also carefully went through all the relevant documents.
6. The appellant's prayer is confusing inasmuch as that neither it shows which order has aggrieved him nor does it indicate which order he has sought to be set aside. However, in the opening paragraph of the memo of appeal he is shown to have been aggrieved by the order dated 16-3- 1993. By that order he has been allowed seniority from March, 1986, the date of his graduation, as a prescribed qualification and not from 12-6-1978 on which his services as Assistant Agriculture Engineer were regularized. In the meantime as many as six seniority lists were admittedly issued in 1981, 1983, 1986, 1988 and 1990. It is the appellant's own admission that three respondents namely Showkat Ali Rahmo, Ali Muhammad Memon and Aftab Ahmad Qureshi were shown senior to him not only in the seniority list of 1981 but also in the subsequent seniority list of 1982 and 1983. Of course he has stated in para. 4 of his memo of appeal that as soon as he detected the above error in the seniority list of 1981, he made representation for rectification of the same. But in proof of his above plea, he did not show us a copy of his representation nor any other document. On the contrary, he has stated in para. 6 of his memo. Of appeal that the same error was repeated even in the seniority lists of 1982 and 1983. Had he been serious for correction of his seniority vis-a-vis above three respondents, we saw no hurdle in his way for achieving his object. It is therefore difficult to believe that he had ever challenged any of the seniority lists, issued in 1981, 1982 and 1983. This was the first lapse on the part of the appellant which has come to our notice. The cause of action accrued to him but he did not avail it. Then came the notification dated 15th September, 1982 prescribing gradution as academic qualification for appointment to the post of Assistant Agriculture Engineer and consequent bifurcation of seniority list in 1986 into two categeries namely Graduate Assistant Agriculture Engineers and non-graduate Assistant Agriculture Engineers seniority lists. All the private respondents found mention in the seniority list of first categroy whereas the appellant name was included in the second category. But he still examined quiet and took no concrete steps for redress of the wrong done to him.
7. After he did graduation in 1986, his name was moved to the seniority list of Graduate Assistant Agriculture Engineers issued in 1988 wherein he was placed below the private respondents Nos'. 9 to 14. In the meantime other respondents 4 to 8 were promoted to BPS-18, as Agriculture Engineers.
8. However, as claimed by the appellant in para. 13 of his memo. Of appeal he made representation for assignment of seniority to him from the date of his regular appointment as Assistant Agriculture Engineer and for promotion on the basis of such seniority. A copy of representation is not available on record and therefore it is not known on what date the said representation was made by the appellant. While speaking of the representation in para. 13 as stated above, he has not mentioned the date of his representation even in the said para. However, it is clear from the letter dated 8-5- 1986 of the Director, Agriculture Engineering, Hyderabad, addressed to the Section Officer, Agriculture Department that the appellants representation was actually forwarded for further action. In reply to the above letter of the Director, the, Section Officer. Agriculture Department vide his letter dated 19th February, 1987, intimated him that the appellant had to be placed at the bottom of the seniority list of Graduate Engineers, from the date of his acquiring B.E. And as such the appellant's request for counting his seniority from the date of his regular appointment was rejected. It was within 30 days of this order that the appellant should have approached the Service Tribunal for relief. Because he has already exhausted the departmental remedy as his objection against the placement of his name in the seniority list of Graduate Engineers was considered at the Government level and was rejected. Therefore, as soon as he received the intimation of rejection of his claim he should have challenged the said rejection order before the Service Tribunal. There was no scope available to him for filing another appeal. It seems he made another representation through proper channel to the Secretary, Agriculture Department. But as he did not mention the date thereon it could not be said how long after his first representation was rejected vide Agriculture Department's letter, dated 19th February, 1987, he made the above second representation. However, the letter dated 28th December, 1987 of the Agriculture Department addressed to the Director-General, Agricultural Engineering, Hyderabad, clearly indicated that even his second representation was rejected by the Government. Even at that stage the appellant did not deem fit to approach the Service Tribunal. Instead he once again approached the Chief Secretary, complaining against the above two orders of rejection, one dated 19-2-1987 and another dated 28-12-1987. So, this was the third time that the appellant represented for assignment of seniority to him with effect from the date of regular appointment and not from the date of his acquiring B.E. If the last-mentioned representation addressed to the Chief Secretary, was considered as availing of compulsory departmental remedy, though in our opinion it was not, still he could come to the Tribunal after waiting for statutory period of 90 days. If he had followed such prescribed procedure, his present appeal before the Service Tribunal should have been filed some time in June, 1988, but actually it was delayed for nearly five years and was filed on 17-5-1993. The only explanation for such delay, furnished by the appellant's leaned counsel was that the appellant kept waiting for the appellate authority namely the Chief Secretary to pass order and as he did not pass the order after lapse of so many years, he filed Constitution Petition No. D-53 in 1992 in High Court to make the said authority pass the order. The explanation is far from convincing. If at all he wanted to go to High Court, he could go there after waiting for statutory period of 90 days and not after waiting for four years. This was a lame excuse unable to inspire confidence. That court was adopted only to cover the delay.
9. The order dated 16-3-1993 which was passed on direction of the High Court again reiterated that the appellant's seniority in the rank of Assistant Agriculture Engineer could be reckoned from the date of his possessing academic qualification of graduation for the purpose of promotion to the higher post (i.e. From March, 1986). It was this order that the appellant has ultimately challenged in the present appeal. Thus from the above discussion, we are inclined to feel that the appellant had not been vigilant in pursuing his case. He had not cared to move in accordance with the prescribed procedure and observe legal limitation. Obviously, he had decided to resort to legal remedy very late with the result that the cause of action accrued to him in early eighties and thereafter was not availed in time and as such it was allowed to be barred by limitation.
10. Even on merits the appellant had no case. It was true that as per academic qualifications prescribed by the West Pakistan Agriculture Engineering Service (Class II) Rules, 1963, his seniority in the cadre of Assistant Agriculture Engineers was to be computed from the date of his regular appointment in the said cadre i.e. 12-6-1978. However, by notification dated 15th September, 1982 of the Agriculture Department, the academic qualifications for appointment to the post of Assistant Agriculture Engineer were changed. As specified in column 4 of the above notification following qualifications were prescribd for appointment to the post of ,Assistant Agriculture Engineer: (i)Degree in Mechanical Engg. Or B.Sc. (lions.) in Agriculture Engg. Or B.E. (Agriculture); (ii)
11. The appellant admittedly did his graduation in March, 1986. Despite this, his request was that since he was regularized in service much earlier on 12-6-1978, his seniority be counted from that date and not from the date of his graduation. We are not impressed by this argument. After graduation in Agriculture or Mechanical or Agriculture Engineering was prescribed as academic qualification, one could not be appointed as Assistant Agriculture Engineer unless he possessed that qualification. Consequently, seniority would only follow such appointment. As such the appellant would be regarded as Graduate Engineer having entered the above Cadre of Assistant Agriculture Engineers from March, 1986, the date of his graduation. Prior to that date he was non-Graduate Engineer inducted in the said Cadre on the date of his regular appointment i.e. 12-6-1978.
12. The aforesaid notification of the Agriculture Department by which the academic qualifications were changed, also prescribed the mechanism in column 3 thereof for filing the post of Assistant Agriculture Engineer as under: -- (i)At least 70% by initial recruitment.
13. (ii)10% by promotion from amongst supervisors possessing Degree in Mechanical Engineering or B.Sc. (Hops.) in Agriculture Engineering or B.E. (Agriculture) and having at least 5 years service as such in the Department .
14. (iii)Remaining by promotion from amongst supervisors holding at least 3 years Diploma from B.I.T.E.
15. University in Mechanical Engineering and having at least 10 years service as such.
16. In the light of academic qualifications specified in the abovementioned notification, the seniority list of Assistant Agriculture Engineers was bifurcated in two categories namely seniority list of Graduate Engineers and seniority list of non-Graduate Engineers. Until the appellant did his graduation he was placed in the seniority list of non-Graduate Engineers. Obviously he had no grievance with regard to the place assigned to him in that seniority list. If he had continued to remain in the seniority list of non-Graduate Engineers, his future promotions would have been barred. As is clear from the aforesaid notification, dated 15th September, 1982 of the Agriculture Department, the posts in BPS-18 were to be filed by promotion from amongst the Assistant Agriculture Engineers possessing a degree in Mechanical Engg. Or B. Sc. (Hops.) in Agri. Engg. Or B.E.
17. Agriculture having 5 years service of Assistant Agriculture Engineer. Thus, promotion to higher post of BPS-18, was confined to only Graduate Assistant Agriculture Engineers. In other words higher post of BPS-18 was to be filed from amongst the persons borne on the seniority list of Graduate Engineers. This was precisely the reason that the appellant did his graduation in March, 1986. On acquiring the said qualification, he was to be moved to the seniority list of Graduate Engineers. His induction in the said seniority was therefore made on the date he became Graduate. But the argument of the appellant's learned counsel was that notwithstanding the appellant's graduation which he did on later date (March, 1986) his original seniority would not be disturbed and it continued to be counted from the date of his regular appointment in the cadre of Assistant Agriculture Engineer. His argument held good until there was one seniority list of Assistant Agriculture Engineer irrespective of their being Graduate or not. But after the seniority was divided into Graduate and non-Graduate Engineers, the appellant took his place in the seniority list of non- Graduate Engineers. He was inducted in the seniority list of Graduate Engineers only after he became Graduate. It did not appeal to common sense that the appellant could count his seniority as Graduate Engineer prior to doing graduation or becoming Graduate. We are therefore of the considered view that the appellant's seniority in seniority list of Graduate Engineers would be counted from the date he became Graduate i.e. March, 1986.
18. Although the appellant's learned counsel did not seriously contest the set of bifurcation of seniority list of Assistant Agriculture Engineers into Graduate Engineers and non-Graduate Engineers seniority lists, yet he showed us the advice of the Law Department of Government of Sindh dated 12-2-1990 holding that the bifurcation of seniority list was not in conformity with rule 9 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. We regret our inability to agree with the Law Department's above view. To appreciate the implications involved in the bifurcation, it may be convenient to reproduce the rule 9(1) hereinabove. It reads as under: -- "9.--(l) 'In each grade in a department there shall be a separate seniority list of a group of civil servants doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down."
19. On close perusal of the above sub-rule, it would appear that inter alia ---qualifications and experience' have to be kept in view while deciding about compiling of seniority lists. If the civil servants belonging to same class of service comprise both Graduates and non-Graduates, they cannot be lumped together in the same seniority list. Obviously their inclusion in one and the' same seniority list would contravene the above rule 9(1). Even otherwise the Supreme Court has held the view that diploma-holders cannot be equated with degree-holders. Therefore, the bifurcation of the seniority list was quite in order. As stated above, the appellant's seniority in the seniority list of Graduates Assistant Agriculture Engineers would be reckoned from the date of his becoming Graduate i.e. March, 1986, and not from 12-6-1978 as has been claimed by the appellant.
20. For above reasons there is no merit in appeal which is therefore dismissed with no order as to costs.