1. MUNAWAR ALI KHAN (CHAIRMAN): --The appellant, Muhammad Afzal Arain retired as XEN, Public Health Engineering Department on 15-8-1988. Only five days earlier, on 10-8-1988, he was promoted to the said post. Nearly four years after his retirement, he came across the Government Notification dated 29-9-1991 published in the Government Gazette of 30-4-1992 whereby Mr. Iftikharullah Malhi (also a retired Engineer) was declared senior to one Datar Dino Shaikh in the cadre of SDOs/Assistant Engineers. The said Mr. Datar Dino was promoted to the post of XEN on 25-11-1960.
2. He too has retired from service. Since Mr. Iftikharullah Malhi was shown junior to the appellant in the seniority list of lower cadre of supervisors/overseers, as it stood on 1st January, 1963, his claim obviously was that by force of the above notification he had become senior to Mr. Datar Dino Shaikh, Accordingly the appellant's prayer is that he may be assigned seniority over Mr. Iftikharullah Malhi, with full back benefits of promotion to the posts of Assistant Engineer Class-II, Executive Engineer and Superintending Engineer respectively from 13-10-1955, 25-11-1960 and 23-6-1973 on which his juniors were promoted to the said posts.
3. As disclosed in the memo of appeal the appellant's case is that he joined service as Overseer on 28-5-1950. He was promoted to the post of Sub---Divisional Officer on 16-8-1953 and designated as unclassified Gazetted Sub---Divisional Officer on 16-8-1964 and Assistant Engineer (Temporary)
4. Class II, with effect from 17-8-1964. Thereafter, he alongwith his other colleagues, was transferred initially on deputation to the Public Health Engineering Department where ultimately he was permanently absorbed with effect from 29-11-1968. In consequence of his permanent absorption in the said Department the appellant's lien in Communication and Works Department stood terminated. Nevertheless he felt aggrieved by the latter department's notification mentioned above whereby Mr. Malhi was assigned seniority in the cadre of SDO/Assistant Engineers over Datar Dino Shaikh. Therefore he preferred departmental appeal on 23-5-1992. As it remained unresponded until after expiry of 90 days, he has come up-in the present appeal.
5. Mr. Hasan Akbar was heard in support c11 the appellant's case whereas Mr. Habibur Rasheed submitted his arguments on behalf of the official respondents. With the assistance of the said learned counsel we also went through the relevant record The Communication and Works Department's Notification dated 29th September, 1991 which has given rise to the present appeal reads as under:- COMMUNICATION & WORKS DEPARTMENT Karachi, the 29th September, 1991.
6. No. EI(C&W)1-10/89 -- On the acceptance of his appeal by the competent authority, Mr. Iftikharullah Malhi, Executive Engineer (B-18), since retired, is assigned seniority in the cadre of SDO/Assistant Engineer over Mr. Datar Dino Shaikh Executive Engineer (B-18) since retired.
7. Nur Ahmed Shah, Secretary to Government of Sindh."
8. There is nothing in the above notification to indicate how the appellant was affected particularly when his name was conspicuously missing from the notification. His learned counsel, however, invited our reference to the seniority list of supervisors/overseers as it stood on 1st January, 1963 wherein the appellant's name appeared above the name of Mr. Iftikharullah Malhi. His argument was that Mr. Malhi would be junior to the appellant even in the higher cadre of SDOs/Assistant Engineers and consequently he was entitled to the relief prayed for by him. We are unable to agree with him that merely because the appellant was senior to Mr. Malhi .In the lower cadre of overseers, he would automatically be regarded as senior to Mr. Malhi even in the higher cadre. His seniority in the said higher cadre vis-a-vis Mr. Malhi has been categorically denied vide para. 8 of written statement. If he really felt aggrieved by the aforesaid notification, he should have first moved the competent authority to recognise his consequent seniority over Mr. Iftikharullah in the cadre in which the latter was given seniority over Datar Dino Shaikh. If his such move was turned down, the order of rejection alone would give him the requisite grievance. It was against the said order that he had to first go in departmental appeal and then approach this Tribunal. Instead of taking that course, the appellant showed undue haste, basing his case on the notification dated 29th September, 1991, which, as already pointed out, did not provide him any cause of action.
9. Looking at the case from different angle, it is appellant's own case that he was senior to Mr. Malhi in the lower cadre of supervisors/overseers. If so, his seniority vis-a-vis the said officer even in the higher cadre of SDOs/Assistant Engineers would normally remain intact, unless he entered the latter cadre after the entry of his said colleague. At least there was no indication in the impugned notification about disturbing of inter se seniority of the appellant vis-a-vis Iftikharullah Malhi in the higher cadre of SDOs/Assistant Engineers. Therefore, even on this count he had no cause of action.
10. Furthermore, having filed premature departmental appeal, the appellant did not show patience to enable the competent authority to take a decision thereon so that he should know whether by giving Mr. Malhi seniority over Datar Dino Shaikh in the cadre of SDOs/Assistant Engineers his seniority vis-a-vis Mr. Malhi in the said cadre was disturbed.
11. Apart from above the appeal has been resisted on other grounds also. The stand taken by the Government in para. 8 of the written statement is that although Mr. Malhi was junior to the appellant as overseer, yet the latter was not senior to the former in the rank of Assistant Engineer.
12. The appellant has produced no proof to refute the Government's above plea. We have therefore no reason to disbelieve the Government's version. If Mr. Malhi was senior to the appellant in the Assistant Engineer's cadre, placing of his name over the name of Mr. Datar Dino in the said cadre would not affect the appellant's seniority nor would it provide him any cause of action for filing this appeal.
13. The next ground taken in the written statement to oppose the appellant's case is that since the appellant had left the Communication and Works Department permanently in 1964, the question of his inter se seniority with Mr. Malhi, the ex-employee of the said Department did not arise. No doubt it is the appellant's own case that he was permanently absorbed in the Public Health Engineering Department on 29-11-1968 and consequently his lien in his parent Department (Communication and Works) stood terminated. With severance of his connections with his parent department as far back as 1968, he could not think of his inter se seniority with officers of that department after lapse of over two decades. In these circumstances we agree with the arguments as mentioned in para..8 of the written statement that the question of appellant's seniority vis-a-vis Mr. Malhi was totally out of question.
14. It may also be stated that as provided in Section 8(1) of the Sindh Civil Servants Act, 1973, seniority is not a vested right. Therefore, we are of the view that it cannot be agitated after one's retirement from service. Even if the appellant succeeded in establishing his desired seniority, he would not automatically be promoted to various posts as has been prayed by him. For each promotion separate order of the competent authority was needed. Again such order would be subject to clearance by the Departmental Promotion Committee. It would not only be seniority which was to be considered by the D.P.C. But many other factors would have to influence its approval. For the purpose of promotion, posts are divided in two categories: Selection posts and non-selection posts. The first category of posts are filled purely on merit. Seniority becomes determining factor only when all candidates before the D.P.C. Are equal merit wise. Even the non-selection posts are filled on the basis of seniority-cum-merit. This shows that in filling these posts it was not necessary that seniors would be preferred Since promotion cannot be claimed as a matter of right, we do not think that the appellant would be considered for promotion after five years from his retirement and that too on the basis of his seniority in the department which he had left permanently as far back as in 1968. It seems the appellant was tempted to file this appeal when he came to know that Mr. Malhi, his old colleague of his parent Department was given seniority by the said Department over one Datar Dino Shaikh in the cadre of SDOs/Assistant Engineers. At the relevant time, as pointed out above, the appellant had nothing to do with that department as he had ceased to be its employee following his transfer to and subsequent permanent absorption in the Public Health Engineering Department two and half decades ago. Thus the question of his promotions to various posts as prayed for by him did not arise.
15. In view of the above discussion, we see no merit in the appeal which is therefore dismissed with no order as to costs.