1. ' MUNAWAR ALI KHAN (CHAIRMAN).---This appeal has arisen from the dispute between appellant, Fazalullah Unar and two piivate respondents M/s. Khalid Sarwar and Nisar Ahmed over seniority in the upgraded cadre of Assistant Controllers, Weights and Measures (BPS-17) Their inter se seniority in the said cadre was reflected for the first time in the Notification, dated 18th January, 1992 of the Industries and Mineral Development Department, whereby the posts of Inspector, weights and measures held by them were upgraded from BPS-16 to BPS-17 and redesignated as Assistant Controllers. The names of the above two respondents were mentioned at S. Nos. 1 and 2 whereas the appellant's name appeared at S.No,12 in the said notification. The appellant first challenged the said notification in departmental appeal dated 5-10-1992 filed before the Chief Secretary but as the said appeal remained undecided for a statutory period of 90 days, he came up in the present appeal which he filed on 17th January, 1993.
2. ' The brief facts leading to the present appeal may be summarized as follows. The appellant was initially appointed as Labour Inspector, in the Directorate of Labour in 1972. After the requisite training he was ultimately absorbed as Inspector, Weights and Measures (BPS-9) and continued to work in that capacity until 1979 when the Bureau of Supply and Prices was set up. The entire Wing of Weights and Measures of which he was a part was transferred to the said Bureau. On the other hand the two private respondents who were working as Labour Officers in the Directorate of Labour were appointed as Inspectors, Weights and Measures (BPS-16) vide Labour and Cooperation Departments Notification dated 19th July, 1977. Their services too were transferred to the said Bureau. As stated above, the impugned notification was issued whereby not only the parties (appellant and two respondents) Posts of Inspectors, Weights and measures were upgraded from BPS 16 to BPS-17 but also the respondents were shown senior to the appellant in the upgraded cadre. Hence the present appeal.
3. ' We heard Mr. M.L. Shahani for the appellant and Mr. Manzoor All Khan for the two private respondents. The learned AA.-G. More or less adopted the arguments of the private respondents learned counsel. We also went through all the relevant documents.
4. ' Before going into merits of the case, we would first dispose the legal objection of limitation raised by learned counsel for the respondents. According to them the appeal is hopelessly time-barred.
5. The notification which has been targeted in this appeal was admittedly issued on 18th January, 1992 whereas the present appeal was filed after full one year, on 17-1-1993. The appellant, who owed an explanation for this long delay, has taken plea in para. 8 of his memo. Of appeal that he came to know about the impugned Notification on 23rd September, 1992 through erne Ghulam Rasool, a fellow Assistant Controller. Again the said Ghulam Rasool was informed about the existence of the impugned notification when he appeared against the two private respondents before the Chairman, Anti-Corruption Committee, Sindh. No doubt the affidavit of the said Ghulam Rasool has been produced by the appellant in support of his above plea. But we are of the view that the appellant's said plea was devoid of any truth. First of all our attention was drawn to the Sindh Government Gazette, December 17, 1992 Part-I which carried the impugned Notification under No,S.O.(I& MD) 1-34/84 (P.M. Thus, the appellant stood belied in his assertion contained in para. 8 of his memo. Of appeal that the notification (which) is, dated 18th January has not been gazetted uptodate". Since the notification has been Gazette, the presumption would be that the appellant had the knowledge of its existence right from the date (17th December, 1992) it appeared in the gazette. Furthermore, both the appellant and the said Ghulam Rasool were amongst the 19 beneficiaries of the impugned notification. In other words their posts were also from BPS 16 to BPS-
17. In consequence of the upgradation, the appellant's monthly emoluments must have undergone a substantial change and he would have even started drawing higher pay etc. From the date of the upgradation. We are therefore unable to believe that he remained unaware of the notification of the upgradation of his post for more than nine months until he was appraised of the same by his fellow Assistant Controller. In view of what has been stated above, the appellant's explanation with regard to delay in filing the present appeal has proved absolutely fellow. Therefore, we hold that the appellant had no cogent reason to delay the filing of appeal and as such the appeal is hopelessly time-barred; ' Coming to merits of the case, it would be noticed that the appellant and two private respondents were working in the Labour Directorate when their services were transferred to the newly established Bureau of Supply and Prices. It is the appellant's own case that initially he joined the said Directorate in 1972 as Labour Inspector and after some training he was appointed as Inspector, Weights and Measures. It was in that capacity that he was transferred to the aforesaid Bureau in 1979. As regards the two private respondents his version is that they were working as Labour Gfficers in the Labour Directorate when by the Notification, dated 19th July, 1977 they were appointed as Inspectors, Weights and Measures. Thus, they too were Inspectors, Weights and Measures at the time of their transfer to the said Bureau. At this stage it may be clarified that Inspectors, Weights and Measures were divided in two categories Inspectors in BPS-9 and Inspectors in BPS-16. In course of the arguments we were shown tentative seniority list of Inspectors, in Grade-9, issued on 6th June, 1983. Only the appellant's name appeared at S.No,12 of the said list.
6. This clearly shows that the appellant was Inspector in Grade-9 until his post was upgraded to Grade-16 vide Bureau of Supply and Prices' Notification dated 3-9-1990. On the other hand according to the appellant himself the two private respondents were appointed Inspectors Weights and Measures in Grade-16, by Notification, dated 19th July, 1977 while they were still working in the Labour Directorate. Thus, the said two respondents having entered the cadre of Inspectors, Weights and Measures BPS-16, thirteen years earlier than the appellant's induction in the said cadre, were obviously senior to the appellant in the cadre. The impugned notification was issued much later on 18th January, 1992 whereby not only the posts ofthe appellant and two private respondents were upgraded from BPS-16 to BPS-17 but also the said respondents were shown senior to the appellant in the upgraded cadre.
7. ' The appellant's learned counsel took a serious exception to the impugned notification contending that the said notification was not a seniority list and therefore it was extraneous to the power of the Departmental Authorities to mention the inter se seniority of the officers specified therein. We are not impressed by this line of thinking. With upgradation of their posts, the grade (BPS) of the officers listed in the impugned notification improved for the better. Consequently the said upgradation was in the nature of promotion. When a batch of officers are promoted or their posts are upgraded by the same order, we do not think it to be out of way to mention their inter se seniority in the same order. On the contrary to rule out any misgiving about their seniority in the higher grade it was certainly desirable to state their inter se seniority in the very notification whereby they were given the benefit of higher pay scale. There was nothing wrong in doing so. But this should not be construed as dispensing with the compilation of seniority list, which is totally a separate exercise to be carried out strictly in accordance with the relevant rules. Even if we ignored the words mentioning the inter se seniority of the officers given in the impugned notification, yet we had to find out who was senior to whom. As pointed out above, the two private respondents were senior to the appellant in the cadre on BPS-16. According to rule 11(b) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 they will retain the same inter se seniority in higher grade as they had in the lower grade, in case they are promoted in a batch. Therefore, the two private respondents were senior to the appellant even in the higher Grade-17.
8. ' Finding himself in a totally hopeless situation, the appellant's learned counsel made a severe attack on the appointment of the two private respondents as Inspector, Weights and Measures, which had come into force one and half decades ago, in July, 1977. Before going into the question of legality of the appointment, we have to decide if such matter could be reopened after lapse of about 15 years. According to the appellant's own showing he was working as lower-grade Inspector (BPS-9) Weights and Measures, when the Notification dated 19th July, 1977 relating to the said appointment of the two private respondents as higher grade Inspectors Weights and Measures was issued. He very well-knew that by their such appointment they would become senior to him. If their appointment was really detective, the appellant should have challenged the same without losing a single moment. Apparently he preferred to remain silent instead of taking concrete steps for redressal of his grievance against the private respondents' said appointment. The appellant got second opportunity to call in question their said appointment when his service alongwith services of two private respondents were placed at the disposal of the newly created Bureau of Supply and Prices. He continued to keep quiet about their appointment until his own lower grade post of Inspector (BPS-9) was upgraded to higher grade post of Inspector (BPS-16) vide Bureau of Supply and Prices notification dated 3-91990. On such upgradation he had still one more opportunity to raise his voice against the appointment of two private respondents in higher grade posts of Inspector. He did not avail even that opportunity. The appellant has obviously missed the bus and be cannot be permitted to question the legality of the private respondents' appointment so belatedly.
9. ' Even if he is allowed to agitate against their appointment at such belated stage, his only objection was that they were not Science Graduates as required by the rules. While defending their appointment, the plea taken in para. 3 of the written statement filed on behalf of official respondents is to the following effect.
10. Para. 3 ........................
11. "The appointment of Mr. Khalid Sarwar is covered under the West Pakistan Standard and Weights and Measures Rules, 1967 photostat copy of section 148 thereof is filed as Annexure H.
12. ' The respondent No,4 was appointed as Labour Inspector (W & M) on 9-9-1968 (Annexure F is referred). His appointment is covered under sections 19 and 20 of the Sindh Standard Weights and Measures Rules, 1967 (Annexure 1)."
13. ' No doubt the respondent Khalid Sarwar was posted as Inspector Weights and Measures for the first time by office order, dated 27-7-1964. As such his appointment was rightly governed by the West Pakistan Weights and Measures Rules, 1967. According to rule 148, although for appointment as Inspector it was necessary that the appointee was a Science Graduate yet this provision was inapplicable to persons working as Inspectors of Weights and Measures or appointed as Labour Inspector immediately before commencement of these rules. Since Khalid Sarwar was already working as Labour Inspector prior to his appointment as Inspector, Weights and Measures, the mandatory condition of possessing degree of science in his case was not necessary.
14. ' So far respondent Nisar Ahmed was concerned, he was appointed as Labour Inspector (W and M) on 2-9-2968 and as such he was covered by rule 20 for the Sindh Standard Weights and Measures Rules, 1967. According to the said rule persons working as Manual Assistants and Inspectors immediately before coming into force of Act (The Sindh Standard Weights and Measures Act 1975) shall respectively be deemed to have been appointed as Assistant Inspectors and Inspectors under that Act. Accordingly the argument of the appellant's learned counsel was without any substance as we saw no defect in the appointment of the two private respondents as Inspector, Weights and Measures. For above reasons the appellant has no case even on merits.
15. ' In view of above discussion, the appeal is dismissed with no order as to costs.