JUSTICE (RTD.) MUNAWAR ALI KHAN (CHAIRMAN).- Two appeals hearing Nos. 129/93 and 130/93 which are respectively filed by Syed Zahid Ali and Miss Hameeda Akhtar involve identical questions of law and fact and are therefore disposed by this single Judgment. These appeals have arisen from the dispute between the above two appellants and private respondents, Nasirul Haque and Kausar Naseem over seniority in the cadre of Assistant Registrars (BPS-16). The appellant's case is that they joined Co-operation Department of Sindh Govt, as Inspectors. They were subsequently promoted as Assistant Registrars on ad hoc basis and their ad hoc promotions were ultimately regularized on recommendations of the Departmental Promotion Committee (DPC) vide Labour and Cooperation Department notification dated 19th November, 1977. Oh the other hand the aforementioned private respondents were inducted in the cadre of Assistant Registrars as direct selectees of the Public Service Commission on 14-5- 1981 and 18-7-1981 respectively. Accordingly in the seniority list of Assistant Registrars issued in 1982, both the appellants were shown senior to the private respondents. However, in the subsequent seniority list made public on 23rd June 1987, the seniority position of the appellants was down graded, as their names were placed below the names of the aforesaid private respondents. Thereupon, the appellants took up the matter with their Department and as a result their seniority position was restored as per Food and Cooperation Department's notification dated 23rd December, 1990.
2. The private respondents who were obviously affected by the said notification lost no time in challenging the same but without any success. The private respondents did not rest there but went in appeal to the Chief Secretary against the order of the Secretary dated 27th January 1991. The Chief Secretary accepted their appeal and restored their seniority as reflected in the seniority list dated 23rd June 1987. Because the appellants were neither heard nor given notice before disturbing their seniority vis-a-vis the private respondents, they took their grievance to the High Court and filed Constitution petition No. C.P.D. 3019/92 whereupon vide Judgment of High Court dated 23rd December, 1992 the Chief Secretary's order was set aside and the case was remanded back to him for rehearing after giving due notice to the appellants. In compliance of the High Court's .Order the appellants were given the requisite notice and after hearing them the Chief Secretary stuck to his previous decision. In this connection Food and Co-operation Dept's notification dated 22nd June 1993 was issued whereby the seniority position enjoyed by the private respondents as per seniority list of 1987 was restored.
3. Aggrieved by the Chief Secretary's latest order herein-above, the appellants filed appeals- No.75/93 by Miss Hameeda Akhtar and No. 76/93 by Syed Zahid Ali before this Tribunal but the same were dismissed in limine vide order of the Service Tribunal dated 14-9-1993. However after filing the aforesaid appeals before this Tribunal, the appellants had also filed departmental appeals dated 21-7-1993 before the Chief Minister. Since the said departmental appeals remained undecided for the statutory period of 90 days, the appellants have filed present appeals afresh on 18-11-1993.
4. We heard the arguments of the parties' learned counsels at great length. Mr. Shabbir Ahmed argued case of the appellants and Mr. Abdul Latif Ansari AAG submitted his arguments on behalf of the official respondents. As for private respondents, Mr. Muhammad Ibrahim Abbasi presented the case of respondents Nasimul Haque and respondent Kausar Nasim who was unrepresented argued his case personally. We also carefully went through all the relevant documents.
5. Before going into merits of the case we would like to dispose Tegal objections raised in course of the arguments. According to the learned counsel for the respondents their first objection was that the present appeals were time- barred, It is disclosed in the appellants' prayer that Food and Cooperation Dept's notification dated 22-6-1993 has been impugned in the present appeals which have obviously been filed on 18-11-1993. Thus the appellants owe an explanation for the intervening period of nearly five months. In course of the arguments the appellants' learned counsel invited our reference to the departmental appeals dated 21.7.1993 preferred by the appellants to the Chief Minister against the impugned notification. The said appeals which were filed within time (i.e. Within 30 days of the impugned notification) were shown to having been received in the Chief Minister's office on the following day i.e. 22-7-1993. The waiting period of 90 days which was to start from 23-7-1993 expired on 20-10-1993. The present appeals were to be filed within 30 days of the date of expiry i.e. Latest by 19th Nov. 1993. On the basis of the above calculation the appeals were within time. However the respondents' learned counsel were of the view that the limitation had to be computed from the date of the Chief Secretary's first order reflected in the S&GAD's U.O. No: Sc- APLS/(S&GAD)2-13-91 dated 29-11-1992 addressed to Cooperation Department. According to them all proceedings subsequent to the said order were violative of the constitutional provisions and as such were void. While replying to the above arguments, the appellants' learned counsel frankly admitted that the Chief Secretary's first order was challenged in High Court in the Constitution petition because it was passed without giving notice or affording opportunity of hearing to appellants, thereby by-passing the eminent principle of natural justice. He further submitted that the High Court not only entertained the petition but also set aside the Chief Secretary's ing the case back to him for rehearing after due notice to the appellants. The learned counsel added that in compliance of the High Court's order the Chief Secretary reheard the case after giving notice to the appellants but somehow he stuck to his previous decision. This is how the second order of the Chief Secretary came to be passed which has been targeted in the present appeals. It was true that even the Chief Secretary's first order could be challenged before this Tribunal as his second order has now been challenged. Had the appellants done so, They would have also been free inter alia to raise the argument which was made as ground to take the matter to High Court. Although in our opinion the High Court had no jurisdiction in the case even on the aforesaid ground, yet in the circumstances described above the appellants were not much to blame for the time they lost in pursuing their case in the High Court and thereafter until the impugned order was passed by the Chief Secretary. If the appellants erred in taking the matter to High Court, the Government's law officer incharge of the case too failed to advise the Government Department to challenge the High Court's order in the Supreme Court on the ground of jurisdiction instead of silently complying with it. We therefore feel that taking the totality of circumstances into consideration it would not be justified to penalize the appellant^ on the ground of limitation. Since the Chief Secretary's second order has been questioned, we hold the appeals to be within time.
6. The next objection of the respondents' learned counsel was that the appeals were barred by the principle of res judicata. Their argument was that since the appellants' previous appeals were dismissed as being premature, their present appeals would not be maintainable. The previous appeals were admittedly dismissed in limine by order dated 14-9-1993. The relevant portion of the said order reads as under: "......... .Since the appellant was aggrieved by the Chief Secretary's order, he had to first resort to departmental appeal which he had to first resert to departmental appeal which he had, at no stage filed before coming to this Tribunal' in the present service appeal. He was to file departmental appeal before the Chief Minister. He could file such appeal even now provided the time wasted by Him in pursuing his matter at wrong forums was condoned by the said departmental appellate authority.
For above reason, the appeal being pre-mature is dismissed in limine."
The above order clearly indicated that the only reason of the dismissal of the appeals was that they were premature. That is to say that these were filed before fulfilment of the mandatary legal requirement of filing departmental appeals which, as suggested in the order itself, could be filed not withstanding the dismissel of the appeals. Thus the doors, were not permanently closed to the appellants. Even after dismissal of their appeals, there was rather scope for them to agitate their case further. All that they were required to do was to file their departmental appeals provided the delay made in filing such appeals was condoned by the concerned departmental appellant authority. In other words it meant to say that the appellants could proceed further with their case if the departmental appeals to be filed by them had legal backing or were legally in order. We have already held in the foregoing paragraphs that present appeals which have been filed against the second order of the Chief Secretary were within time. In view of this finding it would automatically follow that even the departmental appeals filed by the appellants were in time and were free from any legal flaw. As such the principle of res judicata would be inapplicable in the present appeals.
(Coming to merits of the case, it is an admitted position that the appellants entered the cadre of Assistant Registrars earliers than the induction of the private respondents in that cadre. As stated in para 1 of the memos of appeals, the appellants were promoted as Assistant Registrars initially on ad hoc basis but subsequently on recommendations of the Departmental Promotion Committee their ad hoc promotions were regularized vide Labour and Cooperation Department's notification dated 19th November 1977. In the corresponding para 1 of the written statement filed on behalf of the official respondents, while admitting the truth of the appellant's above assertions' it has been clarified that the appellants had no right to claim seniority so long they worked on ad hoc basis. It is also not denied in the said written statement (vide para 2) that the private respondents, Nasimul Haque and^ Kausar Nasim were selectees of the Public Service Commission and were appointed as Assistant Registrars on 14-51981 and 18-6-1981 respectively. Thus, the appellants entered the cadre of Assistant Registrars as promoter sand the two private respondents joined the said cadre as direct recruits. As provided in sub-section (3) of S.E.18 of the Sindh Civil Servants Act 1973 (here- in-after referred as said Act) seniority on initial appointment (ix. Of direct recruits) is to be determined as prescribed obviously by rules. As per rule 10(1) of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1973 (here-in-after referred as seniority rules) Seniority of a Civil Servant is to be reckoned from the date of his regular appointment. In view of the above rule the two private respondents who were selected by the Public Service Commission would obviously count their seniority from the dates of their appointments i.e. 14- 5-1981 and 18-6-1981. On the other hand Sub-Sec. (4) of the said Section 8 provides that seniority of a civil servant promoted to any grade is to be reckoned from the date of his regular appointment. Therefore the appellants who are promotess would count their seniority from the date of regularization of their ad hoc promotions. As stated above their ad hoc promotions were regularized by the notification dated 19th November 1977. Thus, the date the appellants, regular appointment being earlier than that of the private respondents, the former would normally be senior to the latter. Precisely this position of the parties' inter se seniority was reflected in the seniority list of Assistant Registrars issued m 1992.
However, the said seniority position of the parties was disturbed in the seniority list issued on 23rd June 1987. In the latter list the appellants' names were placed below the names of the two private respondents. The appellants immediately took up the above change in their seniority position with the Secretary of their Department whereupon their original seniority position was restored vide Food & Cooperation Department's notification dated 23rd December, 1990. Aggrieved by the said notification, this time the two private respondents approached the Secretary of their Department in representation which was however turned down by exhaustive order date 27th January 1991 passed by the Secretary. Thereafter, the respondents went in appeal to the Chief Secretary who passed two orders, first without giving notice to the appellants and second after putting them on notice as directed by the High Court. However the conclusions reached in both the orders were same namely that the appeals of the private respondents were accepted and they were allowed seniority over the appellants in the cadre of Assistant Registrar.
7. We have carefully perused the Chief Secretary's second order dated 15-6-1993 wherein amongst other things it was held:"It is correct that M/S Nasimul Haque and Kausar Naseem (Private respondents) were appointed as Assistant Registrars in the year 1981 i.e. After those (appellants) who were promoted as Assistant Registrars earlier to them. But at the relevant time respondents (appellants in this case) were promoted as Assistant Registrars against the posts reserved for direct recruits, therefore, the direct recruits have edge over promoters in the matter' of seniority according to rules prevailing at that time. In support of the above decision the respondents' learned counsel also placed reliance on the precedent case reported as Federation of Pakistan-V- Azmali (1985 SCM R 386) wherein the Supreme Court inter alia held: 'These instructions read with the reservation and quota for promotion do indicate that a promoted can claim seniority against the direct recruits only from the date that his promotion can be adjusted against the promotion quota. In the case of contesting respondents this happened in 1969 and not in 1976 when they were actually promoted. Although the facts of the reported case were some what different, yet it would appear that the above findings of the Supreme Court derived force maily from S.9(l) the Sind Civil Servants Act 1973 which reads as under: "9(1) A Civil Servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved the rules for departmental promotion in higher grede of the service or cadre to which he belongs."
It is thus clear that after coming into force of the' Sind Civil Servants Act 1973 of which above S.9(l) was a part, promotions were made only against the posts reserved for departmental promotions.
In course of the arguments the respondents' learned counsel brought to our notice the West Pakistan' Cooperation Service (Class II) Rules 1963 (here-in-after called 1963 rules), submitting that as provided in rule 5 of these rules fifty percent of the vacancies of Assistant Registrars were to be filled by initial recruitment on the recommendations of the Public Service Commission and the remaining vacancies were to be filled by promotion. According to the learned counsel the above ratio of 50:50 for filling the posts of Assistant Registrars has continued to hold ground as no change has been made in the said ratio at least until the appointment of the parties involved in the present appeals. No doubt the above ratio of 50:50 for filling the posts of Assistant Registrars, by promoters and direct recruits prescribed by rule 5 of the 1963-rules had the legal protection u/s 26(2) of the said Act. The learned counsel for the other side were unable to show any subsequent amendment made in the said ratio. We therefore conclude that even at the time of the appellants same ratio prevailed. The above conclusion has raised an important question as to what was the position on ground as regards the posts of Assistant Registrars held by promoters and direct recruits at the time of promotion of the appellants. The written statement filed on behalf of the official respondents has the importance of being the authoritative version of the said respondents case.
But it does not contain any specific statement in the above behalf. However we have come acrose a letter dated 1-7-1990 of Deputy Registrar, Cooperative Societies, Hyderabad addressed to the Section Officer (C- II) Food and Co-operation Department wherein he stated the position a stood on the date of the letter (1-7-1990). According to the intimation conveyed by the said letter there were in all 23 permanent posts of Assistant Registrars out of which 12 were reserved for promoters and 11 were reserved for direct recruits' but in fact 21 promoters and 5 direct recruits were actually working. Obviously the position reflected in the above letter of the Deputy Registrar pertained to the date and period about 13 years after the promotion of the appellants. In our opinion we can not safely reply upon the above information to discover the ratio position that obtained at the relevant time i.e. At the time of regularization of the appellants, promotions. Because the position could not remain static for all time to come but it was subject to change from time to time. Moreover all what the substantive law (i.e. S.9(l) of the said law) required was that a civil servant eligible for promotion could be promoted only to a post for the time being reserved for departmental promotion. The words "time being" are significant in as such as that the quota of departmental promotions was liable to be enlarged or rcduced. Dependent upon the requirements of the departmental authorities. For such change no amendment would be necessary in the substantive law here-in-above. Since the quota was fixed by 1963-rules, it could be enhanced or reduced by notification to be issued under rule 3(2) of the n?w rules known as the Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974. But the Chief Minister who is the rule making authority could approve the change in the quota even, without making the formal amendment.
8. In the instant case it is an admitted position that the appellants were first promoted on ad hoc basis Mr. Zahid Ali in 1970 and Miss Hameeda Akhtar in 1973. However their ad hoc promotions were regularized by the same notification dated 19th Nov. 1977 issued by the Labour & Co-operative Department. It clearly shows that on the recommendations of the DPC, the Cooperative Inspector listed in the notification who were first promitted as Assistant Registrars on ad hoc basis were promoted on regular basis. It appears to us that so long the clear vacancies of Assistant Registrars were not available, the appellants' promotion was made only on ad hoc basis. But the fact that their ad hoc promotions were regularized after lapse of seven years, in case of Mr. Zahid Ali and after four years in case of Miss Hameeda Akhtar has left us in no doubt that regularization of their ad hoc promotion was taken up only after availability of clear vacancies for the promoters. This view finds support from the recitals made even in the official written statement. In this connection reference may be made to para 4 of the written statement, the relevant portion whereof is reproduced as under: "It is further stated that appellant was promoted departmentally to the post of Assistant Registrar, Co-operative Societies on ad hoc basis in the year 1970 against the posts reserved for direct recruits having no ' any right to continue on the said posts till her promotion was regularized under notification No. Ss(C.II) (1) 24/75 dated the 19th Nov.1977 when the appellant was promoted on regular basis as such her inter se seniority also stands decided vide said notification."
9. For the above reasons we are of the view that the appellants, promotions were regularized against the posts reserved for promoters. Consequently, the Chief Secretary's order which was based on the belated data of 1990, i.e. Thirteen years after the appellants' regular promotions, could not be upheld.
10. Accordingly the appeals are accepted and the impugned order of the Chief Secretary's set aside. There will be no orders as to costs.
Given under our hands and the seal of this Tribunal this 14th day of September, 1994 at Karachi.