1. MUNAWAR ALI KHAN (CHAIRMAN): --This judgment covers four appeals namely: Appeal No.85 of 1992 and Appeal No.88 of 1992 filed by Khalid Azhar and Appeal No.86 of 1992 and Appeal No.87 of 1992 filed by Muhammad Yaqkoob Qureshi. Both the appellants are presently working as Senior Clerks in the office of Advocate-General, Sindh. In Appeals Nos.85 and 86, they have respectively challenged the orders of their reversion from the posts of Assistants and in Appeals Nos.87 and 88, the appellants have called in question their seniority position vis-a-vis the private respondents in the cadre of Assistants.
2. The facts giving rise to the aforesaid four appeals may briefly be summarized as follows. The appellants were initially appointed as Junior Clerks in the Office of the Advocate-General, Sindh. In due course of time they were promoted to higher rank of Senior Clerks. In course of arguments at the Bar we were shown Advocate-General's order, dated 19-6-1982 whereby they were confirmed as Senior Clerks and their names appeared at S.No.12 and No.13 in the list of confirmed Senior Clerks. Subsequently they were inducted in the posts of Steno-typist (Grade-7), in different line of service, by way of promotion, Khalid Azhar with effect from 1-7-1978 and Muhammad Yaqoob Qureshi, with effect from 10-3-1979. Khalid Azhar was even further promoted in said service line as Junior Scale Steno (Grade-8). The appellants appointments/promotions in different fine of service were stated to have been made in keeping with the practice, though the said appointments/promotions had no legal backing derived from any law or rules. On their own request, the appellants were ultimately reverted as Senior Clerks, Muhammad Yaqoob Qureshi as per Advocate-General's order dated 30-10-1986 and Khalid Azhar vide Advocate-General's order dated 31-8-1988. On the basis of their original seniority in the cadre of senior clerks, they were soon promoted as Assistants Mr. Muhammad Yaqoob Qureshi with effect from 1-11-1986 and Mr. Khalid Azhar with effect from 1st September, 1988.
3. In August, 1990 a tentative seniority list of the employees of the Advocate-General's office, was issued. In the said fist respondent Muhammad Yousuf was placed above the appellants in the Assistant's cadre. The appellants filed objections assailing particularly the seniority position assigned to the said Muhammad Yousuf. Simultaneously other employees of the Advocate- General's office including respondent Abdul Rashid also filed their objections against the above seniority list. By his order dated 28th March, 1992 the Advocate-General, allowed the representation of Mr. Abdul Rashid, directing that his name be placed at S. No.4, above the names of appellants in the cadre of Senior Clerks in the final seniority list as it stood on 15-1-1990. By the same order the appellants were also reverted as Senior Clerks, Muhammad Yaqoob Qureshi with effect from 1-11- 1986 and Khalid Azhar with effect from 1-9-1988. By a separate order passed on the same date viz. 28th March, 1992, the appellants' objections were rejected by the Advocate-General. The appellants challenged both their reversion, and seniority position assigned to them in separate departmental appeals and after waiting for the statutory period of 90 days for decision thereon, they filed two appeals each as mentioned above.
4. We heard Mr. Abdul Sattar for the appellants, Messrs Muhammad Ilyas/Shoukat Hayat and Naimatullah Qureshi for private respondents they represented and Mr. Abdul Ghafoor Mangi, Addl.
5. Advocate-General and Mr. Abdul Latif Ansari, Assistant Advocate-General on behalf of the official respondents. The private respondents who were unrepresented adopted the arguments made on behalf of official respondents. With the assistance of aforesaid learned counsel we also went through all the documents relevant for disposal of the appeals.
6. As stated above, each appellant has filed two appeals. In one appeal correctness of the appellant's reversion from the post of Assistant has been called in question and in the other, the appellant's seniority position vis-a-vis private respondents has been assailed. It would appear that all the four appeals stemmed from the Advocate-General's two orders passed on the same date viz. 28th- March, 1992. By one order he allowed the objections of Mr. Abdul Rashid and by the other, the objections filed by the appellants were rejected. Both the said orders are reproduced as under:-- "The Advocate-General, Sindh is pleased to allow the representation of Mr. Abdul Rashid, dated 18- 9-1990 on merits and it is ordered as under:--
(1) The Office Order NoAG-2282/86, dated 30-10-1986 in respect of item No.(1) promoting Mr. Yaqoob Qureshi as Assistant is hereby recalled and he is reverted to the post of Senior Clerk with effect from 1-11-1986. Consequently his name is placed at Serial No.5 of the Final seniority list as it stood on 15-1-1990 among the senior clerks.
(2) The office order NoAG-1905, dated 4-9-1988 in respect of item No.(1) promoting Mr. Khalid Azhar as Assistant is hereby recalled and he is reverted to the post of Senior Clerk with effect from 1-9- 1988. Consequently his name is placed at Serial No.7 of the final seniority list as it stood on 15-1-1990 among the senior clerks.
(3) The name of Mr. Abdul Rashid is placed above that of Messrs Muhammad Yaqoob Qureshi and Khalid Azhar at Sr. No.4 of the final seniority list as it stood on 15-1-1990 among the senior clerks.
7. The Advocate-General, Sindh is pleased to reject the representations of Messrs Muhammad Yaqoob Qureshi and Khalid Azhar both dated 19-9-1990. They are not entitled to seniority over Mr. Shahid Jamal Siddiqui. Mr. Muhammad Yaqoob Qureshi is also not entitled to selection grade as claimed by him.
8. The name of Mr. Shahid Jamal Siddiqui is placed at Sr. No.4 of the final seniority list among assistants with effect from 1-11-1986."
9. From the above two orders, it would be noticed that the representation of respondent Mr. Abdul Rashid was allowed whereas the objections filed by the appellants were rejected. In consequence of these orders not only inter se seniority of the parties had been adjusted but also the appellants were reverted, in the wake of adjustment of their inter se seniority, as senior clerks with effect from the respective dates from which they had been promoted to the posts of Assistants. Accordingly we would first take up the question the parties' inter se seniority.
10. It goes without saying that both the appellants started their service career as junior clerks in the Advocate-General's Office. They were subsequently promoted to the posts of senior clerks Mr. Muhammad Yaqoob Qureshi w.e.f. 1-6-1975 and Khalid Azhar w.e.f. 1-11-1975. As reflected in tentative seniority list the appellants were shown senior to all private respondents excepting respondent Muhammad Yousuf. But according to the appellants the latter too was junior to then'.
11. However, while they were working as senior clerks (G-6) they were inducted in the posts of Steno- typists (Grade--7). Khalid Azhar was later promoted even as junior scale stenographer. It was not disputed that Steno-typists were part of different line of service distinct from clerical line comprising junior clerks, senior clerks etc. Therefore, the appellants' induction in higher posts of Steno-typists could not be regarded as their promotion. It is appellants' own admission that their appointment as Steno-typists was in keeping with the practice and tradition rather than in accordance with law and rules. As disclosed in the written statement filed on behalf of the official respondents, the appellants' had by themselves, opted to serve in higher grade posts of Steno- typists. Even otherwise it did not appeal to reason that they were forced to accept the said posts against their will.
12. The important question that arose in context of the case was whether the acceptance of the posts of Steno-typists by the appellants amounted to permanent severance of their connection with their parent line of service? For reply to, this question, it would be significant to note that both the above lines of service had their existence in the same office namely the office of the Advocate- General, Sindh. The posts of Steno-typists to which the appellants were appointed were neither advertised nor any regular applications including the applications of the appellants were received in response to any such advertisement nor any sort of selection took place through any departmental selection committee. Furthermore, the orders of appellants' appointment as Steno- typists indicated as if they were promoted to the said posts. As pointed out above, the question of their promotion did not arise, as the appellants came from different line of service. Even if it was assumed that their appointments as Steno-typists were in the nature of promotion, yet the record did not show that they went through the normal procedure, ordinarily followed in the case of promotion. Admittedly the appellants were not cleared by the departmental promotion Committee for their such promotions. In any case the appellants' appointment as Steno-typists appeared to be ad hoc appointments. We were not shown any document, indicating that their ad hoc appointments were subsequently regularized in accordance with the prescribed procedure.
13. Keeping the above circumstances in view, it was quite possible that the appellants' induction as Steno-typists was merely a stopgap arrangement, on account of non-availability of technical hands, as has been pleaded by the appellants. Even if this was not the case, there was nothing on record to show that the appellants were regularised as Steno-typist and, confirmed in the said new line of service. On the other hand they were admittedly confirmed senior clerks when they assumed the posts of Steno-typists. It was only, in consequence of their confirmation in the new service fine that their permanent rupture with their parent service line could follow. In other words the appellants continued to retain lien on the posts in their parent service line until their permanent absorption in the new service line. In this connection reference may be made to the case reported as Mazharali v. Federation of Pakistan (1992 PLC (C.S.) 411) wherein the Honourable Supreme Court was pleased to hold:-- "Lien of. Permanent civil servant could not be terminated even with his consent; same could, however, be terminated only when he was confirmed against some other permanent post" (Shafiur Rahman, J.).
14. The appellants had obviously acquired lien on the posts of senior clerks. As stated above there was no proof of appellants' permanent absorption in the stenographers' line of service. On the contrary our attention was drawn to two office orders of Advocate-General, Sindh one dated 30-10-1986 and the other dated 31-8-1988 whereby appellants Muhammad Yaqoob Qureshi and Khalid Azhar were respectively reverted to their parent cadre of senior clerks on their own request. The orders clearly showed that they were reverted and not re-appointed. Had their previous service as senior clerks ended, the question of their reversion would not arise. Moreover in the case of their fresh.
15. Appointment as senior clerks the prescribed procedure had to be followed. The procedure for appointment of senior clerks was prescribed in the Law Department's notification dated 9th April, 1980. According to the said procedure if the appellants were to be taken up as senior clerks, afresh, by the initial recruitment, then their selection would be made through the relevant Departmental Selection Committee. But no such procedure was followed. As such the appellants were simply repatriated to their parent service line. Since they were not fresh entrants in their parent service line but they had rather returned to their original service, there was no reason why they should be deprived of their original seniority in the senior clerks' cadre. We also see no force in the arguments of the respondents' learned counsel that as soon as the appellants were reverted to their parent cadre of senior clerks on their own request, they would fall within the mischief of clause (b) of rule 12 of the Sindh Civil Servants (Probation Confirmation, and Seniority) Rules, 1975 and would consequently take their seat in the seniority list of senior clerks at its bottom. The argument was obviously based on the words "at his own request" used in the respective orders of appellants reversion as senior clerks. The argument was prima facie fallacious. To appreciate the applicability of clause (b) in the appellants' case, it may be reproduced as under:-- "(12) If an appointment is made by transfer---
(a) ...........................................
(b) a person appointed on his own request shall rank junior to all other persons appointed before him on the regular basis and the persons appointed with him in the same batch or on the same day by promotion or initial recruitment.
(c) ..........................................."
16. It would appear that requirements of the above rule were not fulfilled in the case of appellants and therefore, it was not applicable in their case. Appellant's reversion in the posts of senior clerks in their parent service cadre was definitely not a fresh appointment by transfer. Moreover as provided in sub-rule (1) of Rule 9 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rule, 1974, appointments by transfer are made from amongst the persons holding appointment on regular basis in the same grade in which post to be filled exists. Contrary to this rule appellants were working in higher grades of Steno-typist/stenographers when they were reverted to lower grade posts of senior clerks.
17. Furthermore as required by above rule, the appellants were not holding the posts of Steno- typists/stenographer on regular basis as they were not appointed to those posts in the prescribed manner. Thus, the appellants' reversion to the posts of senior clerks in their parent cadre could not be construed as their fresh appointment in the said cadre particularly when prescribed procedure was not observed inasmuch as that they did not go through the process of selection to be made by the Departmental Selection Committee. They simply returned to their posts previously held by them. In such a case the appellants' own request, for their repatriation to their parent service line was of no consequence. Accordingly on their reversion they would not be required to count their seniority as fresh entrants in the senior clerks' cadre. Their inter se seniority vis-a-vis other senior clerks as it existed at the time of their appointment was steno-typists, would stand revived.
18. In view of the above findings, the Advocate-General's two orders passed on the same date viz. 28th March, 1992, one relating to acceptance of representation of Mr. Abdul Rashid, respondent and the other with regard to rejection of the appellants' objections were without legal justification and hence could not be sustained. So far inter se seniority of the appellants vis-a-vis private respondents in the cadre of senior clerks was concerned. Consequently the two appeals relating to inter se seniority of the parties; Appeal No.87 of 1992 and 88 of 1992 are allowed and impugned orders are set aside only to the above extent, namely that on their reversion to their parent cadre of Senior Clerks, the appellants shall get the same original seniority in that cadre as they enjoyed at the time of their induction in the posts of steno-typists. As for their appeals relating to their reversion as senior clerks, we have noted that for the appellants' promotion to the posts of Assistants prescribed procedure was not followed in that they were not cleared by the relevant Departmental Promotion Committee. As such their promotion as Assistants was only ad hoc in nature. Such promotion could be undone even without notice. Therefore, we would not interfere with orders of appellants reversion from posts of Assistants to those of senior clerks. Consequently the Appeals Nos.85 and 86 are dismissed. There shall be no orders as to costs. .
19. Before parting with the case, we would like to observe that keeping in view the appellants' seniority in the cadre of Senior Clerks as decided above, they could be considered afresh for promotion to the posts of Assistant strictly observing the legal requirements as prescribed in the relevant law and rules.