JUSTICE ABDUL RAZZAQ A. THAHIM (CHAIRMAN).----Appellant Mr. S.M. John, Stenographer, has filed this appeal for determination of his seniority vis-a-vis his colleagues, the respondents 3 and 4 M/s. Muhammad Bashir and Abdul Rashid.
2. The facts of the case are that the appellant joined the Health Division as Lower Division Clerk on 7-3-1960. He was appointed as Stenotypist with effect from 1-2-1963 and confirmed as such with effect from 27-i1-1973. He was promoted. As Stenographer with effect from 31-10-1972 and was also allowed selection grade with effect from 17-12-1974. Respondents 3 and 4 were appointed as Stenotypists with effect from 1-11-1969 and 1-12-1972 respectively. They were appointed as Stenographer against direct quota from 4-4-1975. In the year 1982, a final seniority list of Stenographers was issued wherein the appellant's name appeared at S.No. 6 and the respondents 3 and 4 were shown at S.Nos. 8 and 9 respectively. In the provisional seniority list issued on 21-3- 1988 the position was reversed and the appellant was placed junior to respondents 3 and 4. The appellant filed objection on 29-3-1988. The seniority list was made, final vide circular dated 17-4- 1993 to which the appellant made a departmental appeal on 24-4-1993, which was not responded to. He then filed this appeal before the Tribunal after the expiry of 90 days.
3. The contention of the appellant is that he was promoted against departmental promotion quota and his appointment stood regularised under section 12-A of the Civil Servants Act, 1973 and he having been declared senior to the respondents could not be relegated to lower position in the seniority list subsequently issued in the year 1988 and made final in the year 1993.
4. The respondent-Ministry has filed comments in which it has been stated that the appellant was promoted as Stenographer on 31-10-1972 but regular vacancy in promotion quota according to the roster became available on 30-4-1975, whereas the respondents 3 and 4 were appointed as Stenographers against direct quota on 4-4-1975 and as such they are senior to the appellant and accordingly the seniority list was revised.
5. We have gone through the record and perused the promotion orders of the appellant. It is evident that the appellant was promoted as Stenographer by order dated 31st October, 1972 with immediate effect, until further orders and there was no condition in this order that his promotion/appointment, as such, was not regular. The appellant was further promoted as selection grade Stenographer (B-14) with effect from 17-12-1974 on the recommendation of the D.P.C. Respondents Nos. 3 and 4 were appointed as Stenotypists, with effect from 1-11-1969 and 1-12- 1972 respectively and were junior to the appellant. Similarly they were appointed as Stenographers against direct quota with effect from 4-4-1975, i.e. Much after the promotion of the appellant viz. 31- 10-1972. In the promotion order of the appellant dated 31-10-1972, there is no mention of the fact that his promotion was not against a regular vacancy, which plea has been taken by the respondent-Department after a period of more than 20 years and cannot be accepted. From the record it is clear that the appellant was senior to respondents 3 and 4 as Stenotypist as well as Stenographer. The respondents 3 and 4 never challenged the order of his promotion, dated 31-10- 1972. He was, therefore, rightly shown senior to the respondents Nos. 3 and 4 in the seniority list issued in the year 1982. The stand of the respondent-Department is that regular vacancy in promotion quota as per roster became available on 30-4-1975 against which post the appellant was adjusted but this afterthought plea cannot be accepted as there is no evidence on record whether any such order was issued by the competent authority appointing the appellant with effect from 30-4-1975. For all these reasons, the respondents 3 and 4 cannot rank senior to the appellant and they will reckon their seniority from the date of their regular appointment. Even for the sake of arguments, if we consider the appellant's date of regular promotion viz, 30-4-1975 and those of the respondents 3 and 4 as 4-4-1975, according to the judgment of the Supreme Court reported in PLD 1988 SC 131 (Fazel-i-Qadir v. Secretary, Establishment Division), the appellant being a promotee shall rank senior to the respondents 3 and 4 being direct recruits in the same year and their Lordships have observed as under:-- "As regards the contents of the Office Memorandum the Tribunal has somewhat been influenced by subsection (4), section 8 of the Civil Servants Act to the exclusion of the other provisions of the same section. A look at the whole of section 8 makes it clear that subsection (4) deals with the seniority of the promotees inter se. If that principle were to prevail over all others then subsections
(2) and (3) become redundant. In fact, it is subsection (2), which governs the inter se seniority of direct recruits and the promotees and for that room has been left for the rule-making authority to make provision. As a principle of General Policy by various office Memoranda and at times by framing express rules, it has in almost all the cases provided that promotees of the same year shall take precedence in the matter of seniority over those joining on initial recruitment in the same year irrespective of their date of promotion or joining. The rule-on which the Service Tribunal has relied, namely, of 1965 also made a similar provision and it happens to be the past as well as the deserved practice incorporated in the rules to recognise such a deserved advantage for the promotees of the same year. There is no conflict with any statutory provision. On the other hand, this principle derives its strength and efficacy from subsection (2) of section 8 of the Civil Servants Act."
6. For the foregoing reasons, we allow the appeal and direct that the appellant be fisted senior to respondents Nos. 3 and 4 as Stenographer according to list issued in the year 1982 and the final seniority list issued on 17-4-1993 be corrected accordingly.
7. Before parting with judgment, it may be pointed out that the appellant earlier filed Appeal No. 451(R)/92 against foreign posting of his juniors. The aforesaid appeal was disposed of by this Tribunal vide order dated 25-4-1993 on the ground that appeal against provincial seniority list was not competent and that the departmental appeal against the final seniority list (which was issued after filing of the appeal) was still pending, the respondent-department was directed to consider the case of the appellant on merits and according to seniority for deputation abroad. Since the Tribunal has given its judgment on the question of determination of inter se seniority of the appellant vis-a-vis his counterparts, the respondents Nos. 3 and 4, and have restored the seniority of the appellant, as was prevailing in the seniority list of 1982, we suggest the respondent- Department that in all fairness, the case of the appellant needs -reconsideration of his foreign posting on merits and according to law, in light of this judgment by restoring seniority to the appellant. .