' The appellant, Salamat Ali was Budget and Accounts Officer(BS-17) while respondent Hafeez-ur- Rehman was Store Superintendent (BS-11). The latter brought an appeal before the Tribunal claiming that, like other Superintendents, he might be placed in BS-15. His appeal was dismissed by the Tribunal on 11-2-1988. He preferred an appeal before the Supreme Court and the same was, of course, allowed vide the judgment dated. 6-5-1992. It was observed therein that Superintendents whether of Stores, Accounts, or Administration were all like and that he too was entitled to BS-15.
Consequently he was placed in BS-15.
2. While implementing the aforesaid judgment of the Supreme Court, the respondent was placed senior to the present appellant as Superintendent and for that reason the latter was reverted to the post of Superintendent whereas the respondent was promoted as Budget and Accounts Officer in BS-17 in his place. Since the order was passed by the Governor, the appellant brought the instant appeal straightaway, making grievance of the fact that a Stores Superintendent had nothing to do with a Superintendent of the General Cadre raised progressively from the Post of a Junior Clerk, Senior Clerk, and Assistant. He further, submitted that 5 years' experience in the Budget and Accounts was a prerequisite for promotion to the post of the Budget and Accounts Officer and that since the respondent did not possess it, he could not have been promoted to that post merely because he was rated senior to him. In other words, according to him, respondent No,2 was ineligible for such promotion for want of technical experience. He claimed for himself to have been confirmed as Budget and Accounts Officer after successfully completing probation of 3 years and that as a confirmed civil servant, he could not be reverted on any ground whatsoever muchless at the instance of respondent No,2 whose Cadre was entirely different not entitling him to claim promotion on the Accounts side. His view was that he and the respondent belonged to two different sub-cadres which could not be amalgamated in the same single seniority list for competing to the next higher post of the Budget and Accounts Officer. Further, he urged that while implementing the order of his reversion, he was given no opportunity of showing cause against it and that it was tantamount to his reduction in rank not permissible by the relevant rules. Last but not the least, his plea was that he was not a party either before this Tribunal or the Supreme Court and that the judgment mentioned above could not have been made to operate to his disadvantage.
3. The appeal was opposed by both the respondents, though in separate writter objections. It was maintained that respondent No,2 had been rightly placed senior to the appellant in accordance with the judgment of the Supreme Court dated 6-5-1992 and hence no exception could be taken to granting him promotion as Budget and Accounts Officer. It was explained that though under the Civil Service Rules of the Civil Defence Department, a Budget and Accounts Officer was used to be promoted from amongst the Senior Superintendents having five years experience in Budget and Accounts but the post of Senior Superintendent had for long ceased to exist and that promotions were being made from amongst Superintendents for whom the experience had never been a criteria for promotion to the post of the Budget and Accounts Officer. According to them the appellant's reversion was justified on the ground that he was reduced by the Supreme Court to be junior to respondent No, 2 who therefore in all events had to be placed senior to him and promoted to the Post of Budget and Accounts Officer. It was added that the appeal filed on 7-7-1993 after preferring the representation on 19-6-1993, was pre-timed and indeed not entertainable in terms of the ratio of PLD 1983 SC 436. Still further, it was claimed that since the appellant had usurped promotion, he was hot entitled to the opportunity of showing cause against his reversion.
4. Mr. M.A. Riaz, counsel for the appellant relied upon the rules at page 19, item No, 16 of the Schedule, which requires 5 years' experience as Senior Superintendent in Budget and Accounts as pre-condition to get promotion to the Post of Budget and Accounts Officer. Secondly, he emphasised that the appellant's promotion dated 31-10-1989 ordered by the Governor was not impeached by respondent. No,2 before this Tribunal so that after he was confirmed, he could not have been reverted on any pretext whatsoever. Thirdly, he sought assistance from 1994 SCM R 249 Muhammad Ashraf v. Dr. Muhammad Zaman etc. And the judgment dated 29-5-1994 of the Supreme Court refusing leave to appeal in Civil Petition No, 710/1/93 holding that the order of reversion without notice, as in this case, was bad in law. Fourthly, he drew attention to the decree dated 31-5-1977 obtained by respondent No, 2 in regard to the grant of promotion as Superintendent on technical side rather than to place him in the General Cadre of Superintendents and claimed that the said decision being final qua him, he could not subsequently ask for promotion in the General Line competing against the appellant who was earlier senior to him in his capacity as Junior Clerk, Senior Clerk and Assistant. Fifthly, he maintained that the respondent did not fulfil the pre-condition of 5 years' experience in Budget and Accounts Officer. 1987 SCM R 78; (Khizar Hayat etc. v. Muhammad Rafique etc.) was cited to support the plea that promotion without fulfilling the condition of eligibility as to length of service, was not sustainable in law. Lastly, reference was made to PLD 1983 SC 431 (M.D. Mall Laila Muhammad v. Collector, D.I. Khan) ....
Asserting that the entire right of the respondent was to get scale of the post of Superintendent on the technical side of the Stores Cadre and not promotion on the General Side which was reserved for Ministerial Staff.
5. Reliance upon the Supreme Court judgment by the respondent was indeed well-merited as normally it is binding upon all Courts under Article 189 of the Constitution. All organs of the State are supposed to act in aid of judgments of the Supreme Court as enjoined by Article 190 of the Constitution. What this judgment appeared to have pronounced was that all Superintendents whether of Budget, Accounts or. Administration were alike. Earlier he was not being allowed this status but he got it per force. Its effect was that he entered in competition with the appellant for the purpose of seniority as they were all alike. Since in point of time he was promoted as Superintendent on 17-1-1978 and the appellant on 12-9-1981, the former obviously became senior.
Ostensibly he had a better right to further promotion as Budget and Accounts Officer. However, this promotion was denied to him as he was thought to belong to the Stores Sub-Cadre, having no right to claim promotion in the General Cadre exclusively meant for the Ministerial Staff. Since the effect of the Supreme Court judgment was that all Superintendents were alike, they had to be placed in a consolidated seniority list for the purpose of further promotion. It was here that the respondent claimed seniority over the appellant because of his promotion to the post of Superintendent taking place much earlier than that of the appellant. If this were all, no exception could have been taken to the respondent's claim and the appellant's reversion in order to accommodate him, would have been quite valid.
6. But there was yet another aspect, extremely important in its implications. It was claimed by the appellant that he was senior to the respondent as Junior Clerk, that in the lower grade as the latter had not been a Senior Clerk or an Assistant because of his own separate line of promotion. He was taken as such Junior Clerk on 1-3-1953 whereas the Respondent wag employed as Store-Keeper on 20-1-1966, viz. 13 years later. It was argued on his behalf that if once it was demonstrated that as Junior Clerk/Store-Keeper, the appellant was senior, he would regain his seniority on promotion to the next higher post namely as Superintendent even though the respondent might have been promoted as such Superintendent earlier in time. Counsel invoked Explanation I to Rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 asserting that it provided guarantee to a senior promoted later than the junior in the higher grade of regaining his original seniority. It was so because seniority was a vested right and could be lost only on supersession as defined in Explanation III to the aforesaid Rule. It was further held out that the appellant was not formally superseded in terms of Explanation HI and that in the absence of such supersession seniority in the lower grade (Junior Clerk/Store-Keeper) would be restored in the higher grade (as Superintendent).
7. For proper appreciation of the argument Explanation I ibid is reproduced as under:- "If a person junior in a lower grade is promoted to a higher grade on ad hoc basis, in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his senior in the fixation of his seniority in the higher grade".
' Although it was contended vehemently that the said provision of the rule had no application to the parties as they did not belong to the same Sub-Cadre in the lower grade or post, yet such competition in their lower ranks appeared indispensable the moment the respondent chose to assert his seniority vis-a-vis the appellant to get promotion as Budget and Accounts Officer. It was not denied on factual side that the appellant was senior to the respondent as Junior Clerk by no loss than 13 years no matter on whatsoever side they might have been working in the same Functional Unit as disclosed by the Rules at Page 19. Initially there was no tie between them because the respondent worked on the Stores side whereas the appellant belonged to the General Ministerial Cadre. The Respondent as Store-Keeper had not to go through the mill of becoming Senior Clerk or Assistant. His next higher promotion was Store Superintendent (BS-11) which he got.
Contrarily the appellant was promoted as Senior Clerk, as Assistant andthen as Superintendent.
This was the reason he was promoted as Superintendent later in time, though he joined as Junior Clerk much earlier. This incidence would turn tables against the Respondent as in terms of the aforesaid Explanation I, his promotion to the next higher grade earlier in time would not affect the appellant's seniority when he joined him in the same rank (Superintendent) though later. Such conclusion was inescapable even if the respondent may have been continuing permanently in the higher grade. In the Punjab, seniority is a vested right as held in PLD 1991 SC 35 (Muhammad Iqbal Khokhar v. The Government) and could have been defeated or lost only on supersession which event admittedly did not take place between the parties. Applying this rule, the appellant was rightly promoted as Budget and Accounts Officer and he should not have been reverted to accommodate the respondent who had to be visited with the evil effects of Explanation I, ibid.
8. Apart from the above objection, learned counsel for the appellant strenuously argued that the Supreme Court judgment did not go beyond declaring the Respondent as good a Superintendent as all others entitled to BS-15 and that it no way conveyed the sense that he could intrude in a totally independent sub-Cadre consisting of Ministerial Staff vis-a-vis the technical or semi- technical like the Store-Keeper or the Store Superintendent who had quite different tiers of promotion. He sought support for this view from the . Service Rules at page 19 drawing attention to the provision at item No, 43 indicating that a Store Superintendent's post could be filled only through promotion of a Store-Keeper with 10 years service and that the latter had not to get promotions to the post of Senior Clerk and the Assistant. Correspondingly an Office Superintendent had to be taken from Assistant who had to be earlier Senior Clerk and even Junior Clerks. He highlighted the background why the Respondent made hue and cry. Earlier he and all other Superintendents were placed in BS 11, but in the Pay Revision Rules distinction was created whereby he was kept in BS-11 whereas others were granted BS-15. He brought a suit for claiming BS-15 as also an appeal before this Tribunal which of course refused him the relief. However, he was able to get it from the Supreme Court on an interpretation that all Superintendents were alike. According to counsel, he misconstrued the judgment even in the context of seniority, vis-a-vis the appellant and got himself placed high than him. His objection was that the judgment did not touch upon the seniority and further that since the appellant was not a party to it, it could not bind him.
9. Mr. Bhatti and even the learned District Attorney took exception to the above contention stating that when all Superintendents were alike, they had to be entered in a consolidated seniority for the purposes of further promotion and that the matter was thoroughly considered by the Law Department and the S&GAD. They urged that promotion as Superintendent earlier in time, would help the Respondent to be first promoted as the Budget and Accounts Officer.
10. The service Rules provide only two tiers for the officials on the Stores-Side. The initial recruitment is of a Store-Keeper who matures into the next higher post of Stores Superintendent and thatis all.
No indication' was made in the rules, if he could match his seniority with an Office Superintendent rising from the feeding cadre of Junior Clerk, Senior Clerks and Assistants. Their multiple tiers distinguished them and indeed claimed an exclusive field for them. A Budget and Accounts Officer has to be promoted from the Ministerial type Superintendents having 5 years' experience in Budget and Accounts. All this arrangement strengthens the argument that the Respondent jumping from the post of Store-Keeper to that of Store-Superintendent had nothing to do with further promotion as Budget and Accounts Officer. I would, therefore, hold that his promotion as such Budget and Accounts Officer was bad in law.
11. Counsel laid emphasis on his objection that the appeal was pre-timed. The representation was made on 19-6-1993 whereas the appeal was filed on 7-7-1993. Ostensibly it was pretimed and in terms of PLD 1983 SC 436 it could not have been entertained. The rejoinder was that the notification having been issued in the name of the Governor would be deemed to be an order passed by the Governor himself requiring no further representation etc. And that counting limitation from its date, namely, 19-6-1993, the appeal filed on 7-7-1993 was in time. Although lately it was observed in PLD 1994 SC 1033 that limitation in service cases should be strictly applied, yet the notification issued in the name of the Governor would be construed to be an order passed by the Governor himself. Such an interpretation was placed upon a similar Notification in PLD 1992 SC 43 v. Governor of the Punjab etc. I, think the latter case seems to help the appellant and the objection is overruled.
12. Since reversion in question appeared to be uncalled for, the appellant had a right to be heard before it was ordered against him. This rule was enunciated consistently in 1994 SCM R 249, (Muhammad Ashraf v. Dr. Muhammad Zaman etc.) and the judgment dated 29-5-1994 of the Supreme Court refusing leave to appeal in Civil Petition No,710/1/93. The impugned order can be struck down on this ground alone.
13. Consequently, the appeal is allowed. The impugned orders are set aside and as a result the appellant shall stand reinstated as Budget and Accounts Officer from the date he was reverted. He is entitled to all back benefits.