1. HAMZO KHAN M. KURESHI (CHAIRMAN).-This is an appeal against the order passed by respondent No. 1 on 22-11-1974 thereby displacing the appellant from service who was a Tapedar in his district.
2. The appellant's departmental appeal was dismissed by respondent No. 2 on 4-12-1974. The appellant claims that respondents 3 to 10 were junior to him but sill they were retained in service and he was displaced.
3. Respondents Nos. 1 and 2 have taken shelter behind the order 10-10-1974 passed by the Board of Revenue, Government of Sind directing that seniority of Tapedars transferred from "Surplus Pool" may be fixed according to their year of passing Tapedar's Training Course. Respondents 3 to 10 have contested the appeal and tiled their written statements separately but they were absent when the appeal was argued. Their case is that they were selected for the Tapedar's Training Course by the Deputy Commissioner, Larkana earlier than the appellant hence they were senior to him. Respondent 3 admits that he was not selected by Deputy Commissioner, Larkana but he belongs to Larkana District. Respondent 10 admits that he was convicted in a corruption case and was dismissed from service in the year 1669 but on his representation the Director of Settlements and Land Records, Hyderabad continued him in service vide his order dated 2-9-1969, copy whereof is produced on record. Respondents 3 to 8 admit that they were transferred from the "Surplus Pool" of Tapedars and posted in Larkana District by respondent No. 1 on 21-11-1974. The appellant was transferred from the Settlement Department, Sukkur and posted in Larkana District by respondent No. 1 in June, 1973.
4. We have heard Mr. Channa for the appellant and Assistant Advocate-- General for respondent Nos. 1 and 2. The learned A. A.-G. Though he obtained a number of adjournments on the ground that he would produce the Notification that the seniority of Tapedars would count from the date of selection for Tapedar's Training Course and not from the date of his entry in service, he failed to produce it. He has however produced a Notification which only shows the method by which the Tapedars would be selected for the Training Course. We have therefore no material on record to support the version of the respondents. They have produced the letter of instructions issued by the Board of Revenue, Sind dated 10-10-1974, Annexure 'A' of the written statement. It only says that the "Surplus Tapedars" were to be sent back to their parent district in order of their seniority provided they have a lien in the Revenue Department. According to rules only the confirmed person can have a lien in his parent department. There is no proof that any of the respondents were confirmed in Revenue Department. The respondent's contention is therefore untenable.
5. The appellant was selected from Larkana District in 1965-66 for the training and on completing it he was being put of on one ground or the other by respondent No. 1 till he was appointed as Survey Tapedar at Hyderabad where he served for six months and was discharged for want of vacancy.
6. He again approached respondent No. 1 for Tapedar's post claiming his right to be absorbed in Larkana District. He was however, not successful with the respondent for over four years. He then approached the Deputy Commissioner, Sukkur who considering his merit and qualifications appointed him as a Tapedar in Settlement Department Sukkur with effect from 30-1-1970. In 1973 he came to know that there were vacancies of Tapedars in Larkana District. He therefore approached respondent No. 1 again for Tapendar's job in his parent district. The respondent made a reference to the Board of Revenue, Hyderabad Sind, in June 1973 stating that he had "no objection" if the applicant was transferred to his district (Larkana). The Board of Revenue therefore, transferred the appellant to Larkana District vide their letter dated 1 .1-6-1973. The appellant accordingly took over as Tapedar in Larkana District on 27-6-1973. He officiated upto 22-11-1974 when he was displaced from service on the ground of non-availability of the post, treating him junior to respondents 3 to 10.
7. These respondents, except No. 3, were also selected by the Deputy Commissioner, Lerkana but according to the appellant they were employed by some other departments outside Larkana and their services were trans--ferred to Larkana District in November, 1974 whereas he was already serving in his parent district Larkana since June, 1973. He says respondents 3 to 8 were employed as Tapedars in 1972 whereas he was employed in the same capacity from January 1970 and was continuously officiating in the same post till he was displaced in November, 1974. The appellant alleged that his services were terminated without notice and that respondent No. 1 by giving preference to respondents 3 to 10 has acted against the specific directions of the Board of the Revenue contained in their letter No. 15-182-73 Estt: II dated 10-10-1974 and also against the provisions of Sind Civil Servants Act, 1973 He further contends that respondent No. 3, Jan Muhammad, was not selected for Tapedar's Training Course from Larkana District hence he cannot claim appointment in the same district in preference to him. He further contends that respondent 10 was dismissed from service on account of his conviction hence the Director of Settlement Survey and Land Records, Hyderabad could not re-employ him nor could respondent No. 1 employ him in Larkana district in 1972 and on the top of it give him seniority over him. The appellant does not press his appeal against respondent No. 9.
8. Both the parties are taking shelter under the instructions of the Board of Revenue contained in their letter dated 10-10-1974, which reads as under: "SUBJECT: ABSORPTION OF SURPLUS POOL.
2. In this connection it was made abundantly clear in this office memo of even number dated 24- 6-1974, that the Surplus Tapedars who were initially recruited in Revenue Establishment in various Districts were to be sent back to their parent Districts in order of their seniority, provided that the transferees had got a lien in the Revenue Depart--ment. You are, therefore, to consult waiting lists of Tapedars of your District, which were prepared after the results of Tapedar's Training School were announced. Implementation of this decision shall entail displacement of junior hands.
3. You are, therefore, requested to decide the fate of Tapedars in conformity with the approved policy without further loss of the. As regards the Tapedars selected by the Collector for Settlement department only, such tapedars may be kept on waiting list and observed if and when any vacancy occurs,"
9. The impugned order dated 22-11-1974 is Annexure 'A' with appeal. The posting orders of respondents 3 to 8 are contained therein. They have been transferred to Larkana District from the "Surplus Pool". The list of Surplus Pool is however, not placed before us. This order shows that these postings were made in pursuance of the letter from the Secretary, Revenue Board Sind dated 10- 10-1974 quoted above. We are afraid the said letter has been misinterpreted by respondent No. 1.
10. The said letter specifically lays down "that the Surplus Tapedars would be sent back to their parent Districts in order of their seniority, provided that the transferees had got a lien in the Revenue Department. It is nowhere stated by respondents 1 and 2 that respondents Nos. 3 to 8 had any lien in he Revenue Department for which they were absorbed in their parent districts. It is also not stated that any of the respondents 3 to 8 were not appointed by the Collector for Settlement department only. In that case they would be kept on the waiting list and absorbed if and when a vacancy occurred. It is the matter of record that some of the respondents 3 to 8 were working in the Settlement Department before they were absorbed in Larkana district on 22-11-1974. It is also not speci--fically said that respondents 3 to 8 had "lien" in the Revenue Department. The lien in the parent department is kept by confirmed persons only. If a civil servant is working in a temporary vacancy he cannot keep his lien in his parent department. It is nowhere stated that any of the respondent 3 to 8 were confirmed persons in the Revenue Department or that they were working against substantive posts and were therefore, covered by the above letter of the Revenue Board.
11. We are therefore of the view that respondent No. 1 has rather misinterpreted the abovesaid policy letter of the Revenue Board and wrongly displaced the appellant.
12. It is admitted that respondent No. 3. Though he belongs to District Larkana, was not initially selected by Deputy Commissioner, Larkana (respondent No. 1) for Tapedar's Training Course. He could not therefore, be absorbed in Larkana District in preference to be appellant who was selected for the said Course from Larkana District. The appellant was appointed as a Tapedar in Sukkur district on 30-1-1970 and was transferred to his parent District Larkana from 27-6-1973 and was continuously officiating in the same post. The respondents were transferred to Larkana District from the Surplus Pool on 22-11-1974 i. e. 1-- years after the appellant. It is not stated that they were either confirmed persons or they were working against substantive posts before they were put in the list of Surplus Pool. For the purpose of seniority in a particular grade, continuous Officiation in that grade is the principle laid down in the service rules and also in various decisions of the superior Courts. Since the appellant was continuously officiating as Tapedar in Larkana District from 27-6-1973 he would be considered senior to respondents 3 to 8 who were transferred from the Surplus Pool and absorbed in Larkana District on 22-11-1974. Even the appointments of respondent a to 8 were made in 1972 whereas the appellant was appointed in 1970. On this count also the appellant would be senior to them and could not be displaced. Respondent No. 3 was not selected by Deputy Commissioner, Larkana for the course hence he could not call Larkana as his parent district. He cannot get preference over the appellant.
13. The position of respondent No, 9 would remain unaffected because then appeal is not pressed against him. As regards respondent 10, it is alleged that he was convicted by the Court of law in a corruption case hence he could not be re-appointed in the same service. His re-appointment order was passed by the competent authority viz. Director of Settlement Survey and Land Records, Hyderabad on 2-9-1969. This order was not challenged by anyone in a departmental appeal or in the Court of law at an earlier stage. Besides, the Director of Settlement and Land Records, who passed the said order in favour of respondent No. 10, is not a party in this appeal hence we cannot interfere with it. This respondent was a selected from Larkana District and passed the Tapedar's Training Course in the year 1948. He was working as a Tapedar in Larkana District since long before the appellant was transferred there. We therefore, find no reason to interfere with his re- appointment or seniority. The appellant would be considered senior to respondents 3 to 8 and his appeal would succeed against those respondents only.
14. In the result we allow the appeal of the appellant against respondents 3 to 8 only and set aside the orders of respondents 1 and 2 to that effect. The appeal against respondents 9 and 10 is dismissed.
15. The appellant would be placed senior to respondents 3 to 8 and would be treated on duty from 22- 11-1974. He would be entitled to his pay and other service benefits permitted by rules as he was displaced illegally. Each party is left to bear his own costs.