' ROSHAN ALI MANGI (MEMBER).---Having been aggrieved by the impugned letter dated 25-1-1995 of the respondent No, 3, whereby his claim of seniority over respondent No, 5, was rejected, and the appellant, therefore, preferred a departmental appeal on 7-3-1995, which remained unresponded, the appellant hence has filed this appeal before the Tribunal with a prayer that he may be declared senior to respondent No, 5, and to direct respondent No, 3 to cause a new seniority list containing his name above the respondent No, 5, and thereby relieve him of the mental agony and humiliation.
2. The brief facts of the appeal as mentioned in the memo. Of appeal are that, the appellant was initially appointed as a Medical Officer in B-17, on 3-7-1980 was subsequently promoted to the post of Assistant Professor in B-18, on 29-11-1982 and ultimately reached to the post of Associate Professor in B-19, on 27-7-1989. All this service he rendered under the Sindh Government.
3. On advertising of the post of Assistant Professor in BPS-19 in J.P.M.C. By the F.P.S.C. In the newspaper in January, 1991, the appellant applied for that post through proper channel, although he was already in BPS-19. He was recommended by F.P.S.C. For the post of Associate Professor on 12-12-1991.
4. A Provisional Seniority List was issued by the Ministry of Health on the 1st November, 1994, in which the appellant was shown below the name of respondent No,
5. In the meantime, objections were also invited against the said seniority list. The appellant, therefore, submitted his objections on 15- 11-1994, requesting therein to place his name above that of the respondent No, 5 i,e, at Sl. No, 12 instead of 13. But it was rejected vide Ministry of Health letter dated 25-1-1995, endorsed to appellant on 12-2-1995. The appellant where after submitted an appeal to the Prime Minister on 7- 3-1995, which was not responded to till the filing of this appeal before the Tribunal.
5. Pleading the case of the appellant, the learned counsel stressed that, he (appellant) was already working as an Associate Professor in BPS-19 since 27-7-1989, when he was recommended by F.P.S.C. For his appointment as Associate Professor in J.P.M.C. On 12-12-1991, against the clear post.
Whereas the respondent No, 5 was promoted as Associate Professor in BPS-19 on 11-10-1992. It was clear from this, the learned counsel argued, that appellant was recommended by F.P.S.C. For the post of Associate Professor earlier than the respondent No, 5 to the similar post. As such a delay was caused due to late issuance of his appointment letter by the Ministry of Health i,e, on 12-4-1992.
The appellant joined J.P.M.C. As Associate Professor with effect from 17-5-1992. The learned counsel for the appellant, therefore, argued that, he should not suffer for no fault of his.
6. It was further argued by the learned counsel for the appellant, that he was recommended by the F.P.S.C. On 12-12-1992, a year earlier than the respondent No, 5 for the appointment of Associate Professor when respondent was still holding BPS-18, keeping in view the Principle (i) of Annexure 1 of the General Principle of seniority the appellant must rank senior to respondent No,5, i,e, the seniority is to be reckoned from the date of advice of F.P.S.C.
7. It has further been argued that the respondent No, 5 also applied for the same post i,e, the post of Associate Professor, however, her application was not accepted, as she did not fulfil the requirements of the post. Even otherwise, the promotion of respondent No, 5 as Associate, Professor was not according to the recruitment rules i,e, Rule 2 of the Civil Servants Rule, 1973 notified in 1986.
At the time of the promotion she did not possess the required published research papers.
8. The learned counsel for the appellant informed the Bar that the past services of the appellant as Medical Officer, Assistant Professor and Associate Professor has been counted towards his pension and the pay of the appellant as Associate Professor has been protected.
9. It was also pointed out by the learned counsel for the appellant that the appellant was selected for promotion as Associate Professor by Sindh Health Department on 27-7-1989, whereas respondent No, 5 was promoted to the post of Associate Professor on 11-10-1992 almost three years after appellant's promotion. In this regard the learned counsel quoted 1985 PLC (C.S.) 548.
10. The objections have been filed on behalf of the respondents Nos. 4, 5 and the Ministry of Health.
The respondent No,5 vide her comments on the other hand stated that she passed the M.B.,B.S. In the year 1978, and did her M.R.C.P. In 1983 from U.K. She joined as Assistant Professor BPS-18 in Sindh Government in 1985. Subsequently she joined the J.P.M.C. In the same post through F.P.S.C. In 1989 and was promoted to the post of Associate Professor on 11-10-1992.
11. The respondent No,5 vide comments on the other hand has taken the stand that the appellant was appointed as fresh by respondent No,3 on the recommendation of F.P.S.C. She, therefore, contends that services of the appellant with Government of Sindh do not give him any benefit and cannot be counted for the purpose of the promotion or seniority. The appointment of the appellant on 17-5-1992, was afresh and this date is to be taken for all material purposes, the date to govern the service of the appellant for the purpose of appointment, promotion and seniority.
12. It has further been contended that the appellant was appointed as Associate Professor on 17-5- 1992, whereas the respondent No,5 was promoted as Associate Professor along with Dr. Shabnam, whom the appellant has not made a party on 11-10-1992 and in accordance with section C, Annexure 1-A (iii) of the Estacode: "Officers promoted to the higher grade in continuous arrangement and as regular measures in a particular year, shall be a class senior to those appointed by direct recruitment in the year."
13. It is argued from respondent side that since appellant and the respondent No,5 respectively were appointed and promoted to the post of Associate Professor in the year 1992, as such Ministry rightly showed the name of the appellant below the name of the respondent No,5 in the seniority list. As such the objections of the appellant were rightly turned down by the competent Authority.
14. The learned Standing Counsel supported the respondent No,5's point of view that when the direct and departmental employees are promoted to the same post in the same year the departmental promotees will rank senior to the direct recruit and that the direct recruit would reckon his seniority from the date he joins the post. As such, the action taken by the department in showing the appellant junior to the respondent No,5 was correct and in line with rules in vogue.
15. The learned counsel for the respondent No,5 also raised the question of limitation. However, we propose to deal with question later.
16. We have heard both the parties at length and have perused the documents before us.
17. The main issue before us to examine if the appellant's prayer to declare him senior to respondent No,5 is justified under the law.
18. We have kept in view and examined the following factors, while arriving at final decision in the matter.
19. The appellant was initially appointed as Medical Officer in BPS-17 with effect from 3-7-1980, subsequently promoted to the post of Assistant Professor in BPS-18 on 29-11-1982 and to the post of Associate Professor in BPS-19 on 27-7-1989. It is clear from this that the appellant was already in BPS-19 in Sindh Government prior to his application for the post of Associate Professor in J.P.M.C., advertised by the F.P.S.C. In the Newspapers in January,' 1991.
20. He was recommended by the F.P.S.C. On regular basis against the substantive post of Associate Professor (BPS-19) reserved for direct recruitment vide its Letter No,.F-188/90-R, dated 12-12-1991, and issued appointment order by the Ministry of Health on 12-4-1992 and actually joined his post on 17-5-1992. The respondent No,5 on the other hand joined Sindh Government, as Assistant Professor in BPS-18 in 1985, then same post at J.P.M.C. Karachi through F.P.S.C. In 1989, and was promoted as Associate Professor on 11-101992.
21. From the above it becomes clear that while the appellant was in Grade-19 in the Sindh Government, the respondent No,5 was still in Grade-18 in Sindh Government, at the relevant time, although later on she joined J.P.M.C. In the same grade i,e, BPS-18 in 1989, through F.P.S.C. The appellant joined J.P.M.C. Earlier than respondent No,5 i,e, 17-5-1992 as against her promotion on 11- 10-1992, although in the same year. The seniority is to be in accordance with section 8(4) of the Civil Servants Act, 1973, which provides that seniority in a grade to which civil servant is promoted shall take effect from the date of regular appointment to that post as has been held by the Tribunal in the case of Riaz Hussain Sangi v. Chairman, C.B.R. And 2 others in Appeal No,456(R) of 1992 and upheld by the Hon'ble Supreme Court vide Civil Appeal No,845 of 1993. As such the appellant would be entitled to reckon his seniority from the date he joined his post in J.P.M.C., and hence would rank senior to respondent No,5.
22. Secondly the appellant had applied against the direct post of Associate Professor B-19, advertised by the F.P.S.C. The respondent No,5 too had applied for the same post. However, as the respondent No,5 did not fulfil the required condition specifically speaking, the length of service, her application, therefore, was rejected. They applied for the same post simultaneously but the appellant was cleared and respondent No, 5's application rejected. As such it confers the right of seniority of the appellant over respondent No,5. The things would have been different, had she not applied for the same post at the same time.
23. Thirdly, although respondent No,5 was promoted to B-19 with effect from 1992:however, as brought out by the learned counsel for the appellant at Bar that she was not eligible for promotion to B-19, as she lacked the requirement of producing three research papers. The representative of the respondent-department was asked at Bar, to name the three papers, to have been produced by the respondent. However, he failed to do so.
24. Fourthly although, the appellant was recommended by the F.P.S.C. On 12-12-1991, however, he was issued appointment letter by the Ministry of Health, Government of Pakistan, on 12-4-1992, and this delay in the issue of appointment letter was no fault of the appellant. It is worth mentioning that, by the time the appellant was issued the appointment letter, the respondent No,5, completed the required length of service -- one of the requirement to become eligible for the consideration for promotion to the next higher grade -- for which her application was rejected previously by the F.P.S.C. The learned counsel for the appellant, apprehended at Bar, that the delay so caused in the issuance of the appellant's appointment letter was deliberate and meant to gain time to enable the respondent No,5 to complete the requirement of length of service to be considered for promotion. We find some force in argument of the learned counsel.
25. For the reasons recorded above, we are of the opinion, that appellant is senior to the respondent No,5, we, therefore, modify the impugned seniority list, by allowing seniority to the appellant over respondent No, 5 accordingly and direct the respondent-department to amend it.
26. Now coming to the question of limitation, the appellant has submitted the condonation application, wherein, it has been stated that soon after preferring his departmental appeal dated 7-3-1995 to competent Authority, he proceeded on summer vacations with effect from 22-6-1995 and remained abroad up to 16-7-1995.
27. On his return from abroad,, he joined his duties on 17-7-1995. However, due to mental disturbance, he could not recollect the last date of filing of appeal before this Tribunal which was 5-7-1995. Unfortunately he fell ill on 7-8-1995, and remained under the treatment of Dr. Naeem-ur- Rasheed Chaudhry up to 23-8-1995. In this regard, he has produced a medical certificate. No sooner did he recover from the sickness, then he filed the appeal before the Tribunal i,e, on 24-8- 1995.
28. We have perused the medical certificate. We feel that he was genuinely sick. Application is supported by affidavit, we have no reason to disbelieve affidavit of a person of B-19 Grade who is holding responsible post. We, therefore, accept his plea and condone the delay.
29. No order as to costs.
30. Parties be informed.
(Sd.)
' MEMBER ' ABDUL RAZZAQ A. THAIHM (CHAIRMAN).---I agree with proposed judgment of Mr. Roshan Ali Mangi, Member and like to add that appellant and respondent No, 5, Dr. Tasneem Ahsan both were originally working in Sindh Government. Appellant, Dr. Masood Hameed Khan, joined as Medical Officer (B-17) on 3-7-1980, appointed as Assistant Professor (B-18) on 29-11-1982 and promoted as Associate Professor (B-19) on 27-7-1989 while respondent No, 5, Dr. Tasneem Ahsan, joined Sindh Government as Assistant Professor (B-18), according to her comments in the year 1985 but on perusal of her file, it transpired that initially she was appointed on ad hoc basis in B-18 with effect from 1-6-1985 continued as such till 3-2-1988 which period comes to 2 years, 8 months and two days but was appointed on regular basis on the recommendation of Sindh Public Service Commission in B-18 as notified from 4-2-1988. She hardly remained for one year on regular basis in Sindh Government in B-18, and was appointed by way of direct recruit in J.P.M.C. In the year 1989 in the same grade i,e, B-18, as such appellant in B-18 was senior to respondent No, 5, when both were in Sindh Government. Moreover, when respondent No, 5 joined J.P.M.C. In 1989, the appellant in the same year 1989 stood promoted in B-19 in Sindh Government. The applications for the post of B-19 were invited in 1990 for J.P.M.C. Through Federal Public Service Commission to which appellant, who was already working in B-19 in Sindh Government, applied. Respondent No, 5 though working in B- 18 in J.P.M.C. Also applied and she was not found eligible and her application was rejected and appellant was selected. The vacancies for promotion quota were available by that time but as it appears that she having no experience was not qualified to be promoted and continued as such in B-18 till she got promotion to B-19 on 11-10-1992. From record it is clear that till 8-1-1991 she was not qualified to be promoted as Associate Professor having lack of experience. Letter is reproduced as under: "No, PF. 1-128-TA/ADMN. I/JPMC ' Government of Pakistan ' Jinnah Post-graduate Medical Centre, ' Karachi-35 ' Dated 4th February, 1991.
' Dr. Tasnim Ahsan, ' Assistant Professor (Medicine), J. P M C , Karachi.
' Subject: J.P.M.S., Karachi -- Application for promotion to the post of Associate Professor (Medicine).
' Reference your application, dated 23rd January, 1991 on the above subject.
' I am directed to say that P.M.D.C. Has recognised your teaching experience 5 years 6 mouths and 8 days, whereas in accordance with the present recruitment rules in case of direct recruitment in BPS-18, 7 ' years service in the relevant subject in Post-graduate Institution is required. As such you are not eligible for promotion to the post of Associate Professor (Medicine).
(Sd.)
(Dr. Atta Muhammad Mangi)
' Deputy Director"
' Let me go further and refer to letter dated 8-1-1991 of Pakistan Medical and Dental Council, Islamabad which reads as under: "Pakistan Medical and Dental Council, ' Islamabad 8th January, 1991.
' The Director, ' Jinnah Post-graduate Medical Centre, Karachi.
' Subject: Eligibility for the post of Associate Professor Sir, ' I am directed to refer to your endorsement, dated 5th January, 1991 on the subject cited above and to inform you that the following experience of Dr. Tasnim Ahsan, Assistant Professor of Medicine of your centre can be counted as mentioned against each: ' Experience Exp. To be equated as Asstt. Professor Y - M D
(1) Assistant Professor of Medicine (on ad hoc 2 - 8 - 02 basis) at Dow Medical College, Karachi from 1-6-1985 to 3 2-1988.
(2) Assistant Professor of Medicine (on regular 1 - .9 -- 00 basis) at the above College from 4-2-1988 to 3-11-1989.
(3) Assistant Professor of Medicine at Jinnah 1 -- 1 -- 07 Post-graduate Medical Centre, Karachi from 5 6 - 08 4-12-1989 todate (8-1-1991).
' The applicant has 5 years 6 months teaching experience as equivalent to Assistant Professor of Medicine at her credit, therefore, she is eligible for the post of Associate Professor of Medicine according to the Regulations of the Council for the appointment of Lecturers/Senior Registrars, Assistant Professors, Associate Professors, Professors and ' Examiners in the Post-graduate Medical Institutions, if she fulfills the other requirements mentioned in these Regulations.
' You are requested to take necessary action accordingly.
' Your Obedient servant, (Sd.)
(Khurshid Alam Awan) Assistant Secretary, for Secretary."
' If we read both letters together it becomes clear that in spite of Medical and Dental Council letter though given benefit of experience she was not considered for promotion to B-19 in 1991 for the reasons best known when there is specific allegation as given in para. VI of memo, in ground VII, that she did not possess the required Published Papers. May be she realising this situation chose to apply for direct recruitment for B-19. Whatever the case may be, it may be observed that respondent No, 5 has not come forward with clean hands as she suppressed some facts. In para. 4 of memo. Of appeal it was averred as follows: - "4. That after due procedural formalities, F.P.S.C. Recommended the appellant for appointment on a substantive post of Associate Professor, B-19 J.P.M.C. Vide their Letter No, F.4-188/90-R, dated 12-12- 1991. Here it is worth mentioning that respondent No, 5 also applied to F.P.S.C. For appointment as Associate Professor, B-19. However, to the best of knowledge of the appellant, her papers were rejected on account of ineligibility by the F.P.S.C. This fact can be ascertained by calling the record of F.P.S.C."
' In reply she stated as under:-- "3. That as to the contents of para. 4 it is submitted that the appellant was appointed afresh by the respondent No, 3 on 17-5-1992 by the recommendation of F.P.S.C. And it is pertinent to point out the services of the appellant with Government of Sindh do not give him any benefit and cannot be counted for the purpose of promotion or seniority. The appointment of the appellant on 17-5-1992 was fresh and this date is to be taken for all material purposes the date to govern the services of the appellant for the purposes of appointment, promotion and seniority."
' She did not admit to have applied for direct recruitment, when respondent No,4, F.P.S.C. Admitted the para. 4 of the appellant as a whole and also in reply to para. VI, as under:-- "Para. (vi) Admitted to the extent that appellant was recommended for the post of Associate Professor whereas candidature of respondent No,5 was rejected for lacking required experience."
' Thus, it is clear that in spite of her all efforts for getting previous experience counted she was not eligible.
32. The entire arguments from respondents side was that in the same year applying ratio of direct recruit and promotee she is senior. No doubt it is settled law that when question of seniority comes the promotees of same year rank senior to direct recruits but each case has own facts and merits.
In the present case while in Sindh Government, appellant was senior in B-18 by six years; when applied for B-19 post in J.P.M.C. In 1991, he was already in B-19 since 1989. Appellant being in B-19 applied while respondent No, 5 being in B-18 in J.P.M.C. When she also joined in B-18 as direct recruitment in 1989 applied, in the same advertisement she was not eligible while appellant was selected in 1991 but due to formalities, order was not issued. The question is when at the time of selection one candidate is not qualified even, that candidate gets benefit of promotion, in promotion quota, by ignoring earlier advertisement and applying of both candidates. There is provision that these appointments in consequences of earlier advertisement though order issued later will reckon seniority to those who appointed and selected in subsequent advertisements and given letter of appointment earlier. Respondent No, 5 did not succeed in earlier advertisement, appellant was selected in 1991 and also joined earlier than respondent No, 5 is no fault on his part.
In peculiar circumstances of the case when she worked in J.P.M.C. For 1989 to 1992 by getting her experience counted for purpose of promotion but was not found eligible for direct appointment.
Moreover, all along in all respects appellant had been senior. The appellant was already in B-19 in Sindh Government since 1989 and was also appointed in the same grade and cadre in J.P.M.C. And in all respects had been enjoying benefits of B-19 since then when respondent No, 5 was in B-18. It may be observed that when eligible candidate is selected and joined earlier than a candidate who was ineligible even for promotion cannot get benefit of seniority. Had both been eligible in the same year then promotee can rank senior. In the present appeal in real sense both are direct recruits. Appellant in B-19 and respondent No, 5 in B-18, she is not originally employee of J.P.M.C.. My brother has dealt this matter elaborately and we allow the appeal.