' NOOR MUHAMMAD MAGSI (MEMBER).---Being aggrieved by final seniority list of Stenographer dated 17-4-1993, the appellant submitted a departmental appeal on 6-5-1993 followed by a reminder dated 19-5-1994, which was rejected vide order dated 4-8-1994. Hence this appeal before the Service Tribunal on 1-9-1994.
2. The facts of the case as stated in the memo. Of appeal, are that the appellant was appointed as LDC (B-5) in the Health Division on 11-10-1963. Subsequently he was appointed as Stenotypist (B-8) with effect from 1-10-1968 and was confirmed as such with effect from 27-11-1973. He was promoted as Stenographer with effect from 3-5-1973. He was also promoted to Selection Grade-14 with effect from 13-8-1978, being senior-most Stenographer.
2-A. Respondent No, 3 (Mr. Muhammad Bashir) was appointed as LDC (B-5) in the Health Division on 23-8-1965. He was appointed as Stenotypist on 1-11-1969 and then appointed as Stenographer against direct quota with effect from 4-4-1975. Thus the appellant is senior to respondent No, 3.
3. Respondent No, 4 (Mr. Abdur Rashid) was appointed as LDC (B-5) in the Survey of Pakistan with effect from 10-6-1971, appointed as Stenotypist in the Health Division on 1-12-1972 and as Stenographer against direct quota on 4-4-1975. He had never challenged the appellant's promotion as Stenographer with effect from 3-5-1973.
4. Respondent No, 5 (Mr. Asghar Ali) was appointed as UDC (B-7) in the National Assembly Secretariat with effect from 2-1-1975, appointed as Stenotypist in the same Department on 11-10- 1975. He was appointed as Stenographer in the Agrarian Management with effect from 26-11-1976.
Being declared surplus in the Agrarian Management, he was appointed as Stenographer in the Agriculture Research Council with effect from 8-10-1977. Subsequently, he resigned from there with effect from 14-2-1978. He was appointed afresh as Stenographer in the Health Division on, 15-2- 1978. He cannot claim seniority in the Health Division prior to his appointment in that Division and also not from the date prior to his being a civil servant as his service in the Pakistan Agriculture Research Council, is not a Government service.
5. Respondent No, 6 (Mr. Muhammad Afzal) was appointed as Stenotypist in 1971 and was promoted as Stenographer on 30-4-1977 in the Establishment Division. After declared surplus he joined Health Division as Stenographer with effect from 19-12-1977. Even if his previous service is counted, he cannot be treated senior because the date of appointment of the appellant as Stenotypist and Stenographer is earlier than the respondent.
6. In the seniority list of Stenotypist issued on 1-3-1982, the appellant was shown senior to respondents Nos. 3 and 4. In 1982, the respondent No, 1 (Secretary, Health Division) referred the cases of inter se seniority of the Stenotypists and Stenographers, to the Establishment Division. In response the stablishment Division has given the conditions for regularisation/confirmation of the incumbent i.e, Stenographers, but the department never communicated that decision to the appellant.
7. Respondent's department, issued a provisional seniority list of Stenographer on 21-3-1988 wherein the appellant was shown junior to respondents Nos. 3 to 6. The appellant filed representation on 29-8-1988. His case was referred to the Establishment Division and the appellant was informed by the Health Division vide Memorandum dated 27-9-1989 that the advice received from the Establishment Division is being looked into and a further reply/reference will soon follow.
But the respondent department, did not correct the seniority list of 1988 and the same was declared as final list and circulated on 17-4-1993, which is impugned in this appeal before the Service Tribunal.
8. The case was argued by learned counsel for the appellant, Dr. G.S. Khan, Advocate. He submitted that the appellant was promoted as Stenographer on 3-5-1973 and subsequently granted Selection Grade (B-14) on 13-8-1978, whereas private respondents were directly appointed/promoted as Stenographer after the appellant. Therefore, they cannot be shown senior to the appellant. He contended that there is no rule that an incumbent holding the post in temporary or officiating capacity should rank lower in seniority than the one who is appointed later in the same capacity against the reserved post in the same grade. According to para. B of Principle of General Seniority, civil servant who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later date.
This principle has not been followed by the respondents while preparing the seniority list.
9. The learned counsel argued that the services of the appellant were regularised from the date of his appointment i.e, 3-5-1973 by virtue of Government decision to exempt the cases of Grades 1 to 15 from the purview of section 12-A of Civil Servants Act, 1973. As such the appellant was senior to respondents Nos. 3 to 6 under the provisions of section 8 of Civil Servants Act, 1973. The appellant is entitled to retain seniority from his initial appointment in view of decision in 1990 PLC (C.S.) 45.
Learned counsel also stressed that the impugned order dated 4-8-1994 is void ab initio as it is not a speaking order in view of 1991 SCMR 2330, whereby the case remanded due to reason that the authority had rejected the representation without recording reasons of rejection. He, therefore, prayed that the appeal may kindly be accepted and the impugned seniority list and other orders on the subject may be set aside and the appellant may be declared to be senior to respondents Nos. 3 to 6, with all consequential benefits.
10. The respondents Department resisted the appeal by stating that the appellant was appointed as Stenotypist against leave vacancy on 1-10-1968, and he was replaceable by the FPSC nominee.
His services were regularised in terms of para. 2 of Establishment Division's O.M. Dated 20-11-1973, and he was treated as regular Stenotypist with effect from 1-10-1973, after completion of 5 years condition. Learned standing counsel, appearing on behalf of respondents Department argued that since the appellant was treated as regular Stenotypist with effect from 1-10-1973 and not from 1-10- 1968 which ultimately affected his seniority position in the cadre of Stenographer. Respondents Nos.3 and 4 M/s. Bashir Ahmed and Abdur Rashid, were appointed as Stenographer against direct quota on regular basis with effect from 4-4-1975, therefore, they were given seniority from that date. Respondents Nos. 5 and 6 M/s. Asghar Ali and Muhammad Afzal, were surplus Stenographer and absorbed in the Health Division with the approval of the competent Authority. Therefore, they were assigned seniority with effect from the date they were appointed/promoted in their parent offices. He further urged that seniority position of the appellant is covered under section 12-A of the Civil Servants Act, 1973 because it relates to removal and reversion of civil servants appointed or promoted between the period from 1-1-1972 to 5-7-1977.
11. We have gone through the record. It is evident that the appellant entered into Government service earlier than the private respondents. He was appointed as Stenotypist and then promoted as Stenographer earlier than the respondent. Of course, the appellant was appointed as Stenotypist against leave vacancy, but he was never reverted back and he was allowed to continue as Stenotypist by order dated 8-11-1969. It means that he remains continued as Stenotypist with effect from 7-10-1968 from the date of his initial appointment. The appellant was promoted as Stenographer with effect from 3-5-1973 and there is no mention in his promotion order that his promotion was not regular.
' Whereas, respondents Nos. 3 and 4 were appointed as Stenographer against direct quota on 4-4- 1975 much after the promotion of the appellant. They did not challenge the appellant's promotion as Stenographer with effect from 3-5-1973. Further, the appellant was promoted as Selection Garde Stenographer (B-14) on 13-8-1978, even then the respondent did not challenge it. The appellant was treated as senior-most Stenographer while he was granted Selection Grade, which was granted to him on the basis of senioritycum-fitness. As regards respondents Nos. 5 and 6 who were surplus and were absorbed in the Health Division. If their previous service as Stenographer is counted, even then they cannot be treated as senior to the appellant who was appointed as Stenographer earlier than them. Respondents Nos. 5 and 6 were appointed Stenographer in their parent department with effect from 26-11-1976 and 30-4-1977 respectively, whereas the appellant was promoted as Stenographer on 3-5-1973. The contention of the respondents that appellant was regularized with effect from 1-10-1973 is not correct. As per decision of the Government to exempt the cases of Grades 1 to 15 from the purview of section 12-A of Civil Servants Act, 1973, the services of the appellant were regularized with effect from 3-5-1973 i.e, the date of his appointment on regular basis. The appellant was shown in the earlier seniority list, he cannot be shown junior in subsequent list without any sound reason.
12. For the foregoing reasons, we allow the appeal and direct that the appellant be listed senior to respondents Nos. 3 to 6 as Stenographer, and the final seniority list dated 17-4-1993 be corrected accordingly.
13. No order for costs. Parties be informed.