' SAJJAD ALI SHAH, C.J.---This appeal with leave of the Court is directed against the judgment of the Sindh Service Tribunal, Karachi, whereby service appeal filed by respondent No,3. Khalil Ahmed Soomro, claiming seniority over appellant Munir Ahmed Shaikh, is allowed.
2. Briefly stated the relevant facts giving rise to this appeal are that Khalil Ahmed Soomro joined Government service as Development Engineer (BS-17) in the Rural Development Department of Government of Sindh with effect from 5-11-1983 and was absorbed as Assistant Engineer (BS-17) on ad hoc basis in the Public Health Engineering Department and was ultimately regularized as such with effect from 22-5-1989 as contemplated under Sindh Civil Servants (Regularization of Ad hoc Appointment) Act, 1989. As against that Munir Ahmed Shaikh joined Government service as Survey Officer in the Town Planning Department on 14-9-1986 and on his request his services were transferred to the Public Health Engineering Department on deputation for three years as Assistant Engineer (BS-17) vide Notification dated 13-5-1989. He was permanently absorbed on 18-9-1989 as such from that date. Subsequently vide order dated 18-2-1990 Munir Ahmed Shaikh was given seniority in Public Health Engineering Department from 17-5-1989, which was the date of his transfer in that department. Khalil Ahmed Soomro, feeling aggrieved, filed a departmental appeal, which failed and then he filed service appeal before the Tribunal, which is allowed as stated above.
3. This Court has granted leave to appeal to examine the following contentions:-- "(1) Whether on transfer from one department to another, on the recommendation of Departmental Promotion Committee, a civil servant has better right to seniority than the other, who is regularised under provisions of Sindh Civil Servants (Regularisation of Ad hoc Appointment) Act, 1989?
(2) Whether order dated 18-2-1990 is violative of rule 12(b) off Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975?
(3) Whether civil servant on transfer to another department on the recommendation of Departmental Promotion Committee after fulfilment of requirements of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 can be denied benefit of seniority from the date in the new department?
(4) Whether Service Tribunal was competent to set aside order passed under section 24 of Sindh Civil Servants Act on the ground that statutory provision was not mentioned in the order impugned before it?"
4. So far as the contentions reproduced above are concerned, they are interconnected and can be examined together. In any case the contentions reflect the case of the appellant, who claims that he was transferred from one department to another under the same ministry and it was not a transfer on deputation and further that whatever mistake was made in respect of permanent absorption was rectified subsequently vide order dated 18-2-1990, whereby he was given seniority retrospectively from the date of his induction or transfer to Public Health Engineering Department on 13-5-1989.
' In any case order dated 18-2-1990 passed in his favour was in exercise of plenary powers of Government as contemplated under section 24 of the Sindh Civil Servants Act, 1973 and is, therefore, beyond any question. In this context it would be necessary to make reference to the correspondence and orders passed by the Government and also to provisions of the Sindh Civil Servants Act, 1973 and rules framed thereunder relevant to the subject-matter in hand.
5. Khalil Ahmed Soomro was inducted in Public Health Engineering Department on 23-9-1985 as Assistant Engineer (BS-17) on ad hoc basis and was regularizated with effect from 22-5-1989 by virtue of section 5 of the Sindh Civil Servants (Regularization of Ad hoc Appointment) Act, 1989, which reads as under-- "(1) The civil servants whose services are regularized under this Act shall rank junior--
(a) to the civil servants belonging to the same service or cadre, who are in service or cadre on regular basis on the commencement of this Act;
(b) to such persons, if any, who in pursuance of the recommendations of the Commission made before the commencement of this Act, are appointed to the respective service or cadre, irrespective of their actual dates of appointment.
(2) The inter se seniority of the civil servants whose services are regularized under this Act within the same service or cadre, shall be determined on the basis of their continuous appointment in such service or cadre: ' Provided that where the dates of their continuous appointment are the same, the older in age shall rank senior to the younger in age."
6. On the other hand the case of Munir Ahmed Shaikh is that on 14-9-1986 he was appointed as Survey Officer in Town Planning Department and was transferred to the Public Health Engineering Department under the same ministry with effect from 17-5-1989 pursuant to the notification dated 13-5-1989. On 18-9-1989 he was permanently absorbed in that department as Assistant Engineer (BS-17) from that date which was the mistake and was rectified subsequently vide Notification dated 18-2-1990, whereby he was given seniority retrospectively from the date of his transfer to that department from 17-5-1989. He also claims that before his induction in the Town Planning Department as Survey Officer, he was recommended by the Sindh Public Service Commission, hence his appointment was regular at the time of his transfer to the Public Health Engineering Department. His transfer was not on deputation as it was mistakenly believed to be so and subsequently the mistake was rectified and he was given seniority retrospectively from the date of his transfer on 17-5-1989 vide order dated 18-2-1990, hence Khalil Ahmed Soomro, who was absorbed on 22-5-1989 in the same cadre, could not claim seniority over him as he was already in that cadre as regular appointee from 17-5-1989
7. A perusal of the documents in the above context, which are available on the record, show that vide application dated nil, addressed to the Additional Chief Secretary, Housing, Town Planning, Local Government and Rural Development Department, Government of Sindh, by Munir Ahmed Shaikh, request was made for his transfer to Public Health Engineering/Engineering but no mention is made therein as to why he wanted transfer and what purpose would be achieved by such transfer. Subsequently, notification was issued on 13-5-1989 transferring Munir Ahmed Shaikh with immediate effect for a period of three years and posted as Assistant Design Officer (BS-17) in the office of Chief Engineer, Public Health Engineering Department, Hyderabad till further orders. It is also mentioned in the said notification that terms and conditions of deputation would be decided separately. Munir Ahmed Shaikh after perusal of this notification could have resisted and sought rectification to the effect that he did not want to go on deputation and that he wanted transfer simpliciter with advantage of permanent absorption but he did nothing of the sort and assumed the charge on 17-5-1989 (forenoon) without any demur or protest.
8. On 18-9-1989, order was issued absorbing Munir Ahmed Shaikh in Public Health Engineering Department permanently as Assistant Engineer (BS-17) with immediate effect. It was made categorically clear in the second part of the order that his seniority would be reckoned from the date of his permanent absorption. After five months on 27-1-1990 Munk Ahmed Shaikh applied for back dated seniority and addressed such application to the Additional Chief Secretary, Local Government, Public Health Engineering and Rural Development Department, Government of Sindh, contents of which are reproduced as under:-- "Most respectfully I beg to submit that after my selection by Sindh Public Service Commission I joined Town Planning Department as Survey Officer (BPS-17) on 14-9-1986.
' I was transferred to Public Health Engineering Department as Assistant Engineer (BPS-17) on deputation basis vide Government of Sindh, Housing Town Planning Local Government and Rural Development Department Notification No,SO(VII)DPC-2(35)/88, Karachi dated the 13-5-1989.
' Later on I was absorbed permanently as Assistant Engineer in Public Health Engineering Department and necessary orders were issued under Government Order No,SO(VII)PHE-2(4)/89, Karachi dated the 18th September, 1989 effecting my absorption from the date of issue of this order.
' Under the circumstances it is prayed that I may very kindly be allowed seniority from 17-5-1989 the date on which I joined the Public Health Engineering Department.
' Your sympathetic consideration is requested."
9. It is apparent from the contents reproduced above that Munir Ahmed Shaikh did not claim at that time that he had applied for transfer simpliciter and that it was his legal right to have been absorbed permanently from the date of his transfer and that it was a mistake on the part of the Government to have given him permanent absorption from 18-9-1989, which was the date of notification issued earlier. Perusal of photocopy of this application at page 45 of the paper book shows that though it was addressed to the Additional Chief Secretary, but was placed before the Chief Minister of Sindh, who had passed order on it on 3-2-1990 as under:-- "Examine his seniority and decide accordingly."
' The application was marked by the Chief Minister to Minister for Local Government, who had also put a note for examination. Another photocopy of such application was produced in the Court alongwith notes of the Chief Minister and concerned Minister. This application was made by Munir Ahmed Shaikh on 31-7-1989 and was addressed to the Additional Chief Secretary but on it there is note of the Chief Minister of Sindh made on 2-8-1989. It is stated in that application that the applicant had requested for transfer to Public Health Engineering Department on regular basis and that he had not applied for transfer on deputation. Note of the Chief Minister is that "He may be absorbed if rules permitted". There is note of Minister concerned to the effect that the case may be examined and put up. Consequently, order was passed on 18-2-1990 giving seniority to Munir Ahmed Shaikh in the cadre of Assistant Engineer (BS-17) from 17-5-1989, when he joined Public Health Engineering Department.
10. There is no dispute about the fact that Munir Ahmed Shaikh has been transferred to Public Health Engineering Department on his own request and as such his case will be governed by rule 12 of the Sindh Civil Servants (Probation. Confirmation and Seniority) Rules, 1975, which provides that in case of appointment by transfer not on the request of appointee, seniority shall be determined after giving benefit of regular service in other post held by him before such transfer. If appointment by transfer is on the request of appointee, he shall rank junior to all other persons appointed before him on the regular basis. Now every thing depends on the order dated 18-2-1990 whereby Munir Ahmed Shaikh was given seniority retrospectively from the date of his transfer i.e, 17-5-1989. If this order is valid, then he would be senior than Khalil Ahmed Soomro, who was absorbed in the same cadre on permanent basis with effect from 22-5-1989 as contemplated under section 5 of the Sindh Civil Servants (Regularization of Ad hoc Appointment) Act, 1989. If this order is invalid as held by the Service Tribunal then Munir Ahmed Shaikh would be considered as having been permanently absorbed in the cadre from 18-9-1989 and Khalil Ahmed Soomro would be ranked as senior having been absorbed earlier in the same cadre with effect from 22-5-1989. We agree with the finding of the Service Tribunal, which has advanced cogent reasons for holding that order dated 18-2-1990, giving retrospective seniority from the date of transfer to Munir Ahmed Shaikh, was illegal and invalid for the reason that it was passed on a subsequent date when earlier than that date on 22-5-1989 Khalil Ahmed Soomro was absorbed permanently in the same cadre by operation of law as mentioned above.
11. Even the Government department has not come out openly to defend the order dated 18-2-1990, giving seniority retrospectively to Munir Ahmed Shaikh on the ground that his earlier absorption from 19-9-1989, which was the date on which that notification was issued, was a mistake and was correctly rectified on 18-2-1990 giving him seniority from the date of his transfer. No mention is made in the written statement filed by the department taking plea that order passed on 18-2-1990 was in exercise of plenary powers of the Government as contemplated under section 24 of the Sindh Civil Servants Act, 1973. On the other hand stand was taken by the Government Department before the Service Tribunal that between the two, Munir was regular appointee through the Sindh Public Service Commission at the time of his transfer to Public Health Engineering Department while Khalil Ahmed Soomro was ad .Hoc appointee in that cadre whose services were regularized on 22-5-1989 by operation of law, hence the latter could not claim seniority over the former.
12. We are of the view that order dated 18-2-90, conferring retrospective seniority to Munir Ahmed Shaikh from the date of his transfer to Public Health Engineering Department is illegal and not sustainable for the reasons firstly, that it was a case of transfer of Munir Ahmed Shaikh from Town Planning Department to Public Health Engineering Department and such transfer was made on his own request, hence rule 12 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 would apply in full force. His services were regularized and he was permanently absorbed from 18-9-1989 vide notification of that date and order dated 18-2-1990 giving him retrospective seniority from 17-5-1989 is illegal because it impinges upon the statutory right conferred upon Khalil Ahmed Soomro, whose services were regularized in the same cadre earlier in point of time on 22-5-1989 by operation of law. Secondly, order dated 18-2-1990 does not show that it was passed under section 24 of the Sindh Civil Servants Act, 1973 in exercise of plenary powers of the Government considering it as a hardship case. Such order can be passed for the benefit of aggrieved civil servant to alleviate his hardship but cannot be passed to impair any of the statutory rights vesting in the other civil servants. In support of the proposition, reference can be made to the cases of Capt. (Retd.) Abdul Qayyum v. Muhammad Iqbal Khokhar and 4 others PLD 1992 SC 184 and Ahsanullah A. Memon v. Government of Sindh and 3 others 1993 SCM R 982. Thirdly, Mr. R. A. Qureshi, learned AOR appearing for respondents 1 and 2, who are Government of Sindh and Chief Secretary to the Government of Sindh, has stated that the Government has already acted upon the judgment of the Service Tribunal, which is impugned before us and therefore has no intention of defending this appeal. In the circumstances, for the facts and reasons stated above, we find no merits in this appeal which is hereby dismissed.