1. ' MUNAWAR AU KHAN (CHAIRMAN).---Aggrieved by the order dated 15-12-1993 of the Director, Anti- Corruption Establishment, Sindh, Karachi (hereinafter referred as impugned order) the appellant, Iqbal Ahmed Qureshi, presently working as Assistant Director, Anti-Corruption, has filed the present appeal with the following prayer:-- "In view of the above, it is humbly prayed that this Honourable Tribunal may be pleased to order:--
(a) That, the order of the appellant's absorption in Anti-Corruption Establishment be given retrospective effect from the date on which the appellant joined as officiating Inspector viz. 1-10- 1978 in the Anti-Corruption Department.
(b) That, the appellant's seniority be counted from the date of his entry into grade as officiating Inspector i,e, 1-10-1978.
(c) That, the seniority list be corrected and the appellant be placed senior to respondents Nos. 4 to 6 in the seniority list.
(d) That, the case of Mr. Malik Muhammad Khan be reviewed after calling for the General Register/Relevant Record from the Board of Intermediate and Secondary Education, Karachi to verify the correct date of his birth and also keeping in view the fact that the rules do not permit any modification/correction of the date of birth after two years from the date of entry into service."
2. ' Briefly stated the appellant's case as disclosed in his memo. Of appeal is as follows. The appellant joined Government service as Prosecuting Sub-Inspector on 24-11-1973. On his request, he was deputed to work in the Anti-Corruption Establishment (hereinafter referred as said Establishment) as Inspector i,e, one rank above his substantive rank with effect from 1-10-1978. He was ultimately recommended for permanent absorption in the said Establishment. Although the recommendations for his absorption were made by the Director, Anti-Corruption some time in 1985, yet formal order of the appellant's permanent absorption as Sub-Inspector in the said Establishment was issued on 23rd July, 1986. During the intervening period the private respondents Naseer Ahmed and Mulazim Hussain who were respectively working as ASI and Head Constable were promoted as Sub-Inspectors. And the third private respondent Muhammad Khan who was taken up on deputation by the said Establishment for the first time on 6-5-1982 was finally absorbed retrospectively from that very date, despite the fact that he was twice repatriated to his parent department, coming back to the said Establishment lastly on 27-6-1991. The private respondents Nasir Ahmed and Mulazim Hussain were subsequently promoted to the rank of Inspector, though temporarily, on 13-7-1986 and 3-4-1986 respectively with the condition that they would not claim seniority over their seniors. However, by the notification dated 14-5-1990, of the Director, Anti-Corruption they were confirmed as Inspectors with effect from 17-7-1986, though in the same notification the appellant was shown as confirmed on 14-9-1986. Then came the tentative seniority list which was issued in 1989. The appellant filed his objections not only against the said seniority list but also against the tentative seniority lists issued in subsequent years including the seniority list of 1993 which was communicated to the appellant .By letter dated 11-11- 1993 of S.P., Anti-Corruption, Hyderabad. In the said seniority list all the three private respondents, though junior to the appellant were placed above his name. His objections with 'regard to the last- mentioned seniority list were rejected vide the letter dated 15-12-1993 of the Director, Anti- Corruption communicated to him on 23-12-1993. The appellant preferred appeal dated 4-1-1994 against the said order of the Director to the Chief Secretary, Government of Sindh but as no decision was made on his said appeal within the statutory period of 90 days, he came to this Tribunal in the present appeal which was filed on 3-5-1994.
3. ' We heard the arguments of Mr. Ghulam Rabani appellant's learned counsel in support of the appeal and the arguments of M/s. Manzoor Ali Khan, Muhammad Aqil Awan and Gohar Iqbal respectively on behalf of private respondents Nasir Ahmed, Mulazim Hussain and Muhammad Khan and Mr. Aziz ur Rehman made his submission on behalf' f the official respondents. With the assistance of above learned counsel, we also carefully went through all the relevant documents.
4. ' It would appear from the opening paragraph of the memo. Of appeal that the appellant filed the present appeal only because he had grievance against the impugned order. This is further confirmed in para. 22 of the memo. Of appeal wherein the plea taken by the appellant clearly was that in the tentative .Seniority list communicated to him by the letter dated 11-11-1993 of the S.P., Anti-Corruption, Hyderabad, the names of all the three private respondents were placed above his name, therefore, he filed his objections against the said entries but his objections were rejected as per impugned order. Accordingly as has been stated in the following two paragraphs 23 and 24 of the memo. Of appeal, after observing the mandatory legal requirement of filing of departmental appeal, the said order was made the basis of the present appeal. In view of this factual position, the appellant should have normally prayed for setting aside of the impugned order and also for any other consequential relief flowing therefrom. But instead of doing so, he has made a prayer which comprises four clauses. The clause (d) which carries the prayer for change of birth date of private respondent Muhammad Khan so that he should stand retired from service from the earlier date is totally out of contest and have irrelevant, meriting no attention at all. If the appellant was unsatisfied with modification of the said respondent's birth date, his such grievance gave rise to the subject-matter of a separate appeal which he should have filed within the prescribed period of limitation.
5. ' Of course the appellant's prayers at clauses (a) and (b) have some bearing on determination of his ultimate seniority in the cadre of Inspectors, yet they involve separate issues to be agitated in separate appeals. The appellant, if so desired, could have raised and pursued the said issues when they actually occurred and provided him cause of action. For example his prayer at (a) is that his absorption in the said Establishment be given retrospective effect from the date he joined the said Establishment viz. 1-10-1978. It is appellant's own admission that it was on his request that he came to serve in the said Establishment on deputation. If any proof is needed in this regard, reference may be made to appellant's application addressed to the Director, Anti-Corruption, Karachi produced as one of the annexures with written statement filed by learned A.A.-G. Moreover his retrospective absorption would have disturbed the seniority position of the officials already working in the said Establishment. Furthermore such absorption would have caused violation of the seniority rules. As provided in rule 12(b) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, if appointment is made by transfer, a person appointed on his own request shall rank junior to all other persons appointed before him on the regular basis. Obviously the appellant's appointment (i,e, absorption) in the said Establishment was made by transfer on his own request therefore he had to rank junior to all those who were inducted in the cadre of Sub- Inspectors before him. Had his absorption been given retrospective effect all those who were appointed in the said cadre during the period of eight years, beginning from 1978 when he came to the said Establishment and ending in 1986 when he was absorbed in the said Establishment would have become junior to him. After all there was no justification for the departmental authorities to adopt such course particularly when the appellant had himself chosen to leave his parent department and serve in the said Establishment. The appellant's learned counsel, however, submitted that though initially the appellant was deputed to serve in the said Establishment on his own request, yet his permanent absorption was made by the said Establishment on its own accord and without request from the appellant. This statement has been vehemently denied by learned A.A.-G. Vide first 15 lines on page 2 of the written statement filed on behalf of the official respondents. The A.A.-G.'s stand was that even appellant's permanent absorption was made in his own request and that was precisely the reason that in the seniority list he was assigned position below the persons appointed before him. Even otherwise it did not appeal to reason that if his absorption was made on the Department's own initiative and not on appellant's request there was no reason for the Department to grudge the giving of retrospective effect to his absorption.
6. Moreover if the appellant thought that his absorption was not only violation of the legal requirements but also the breach of the promise made to him at the time of his deputation, he was free to challenge the absorption order well in time. Although the absorption order was made as far back as 3-8-1986, yet the appellant remained unconcerned for all the intervening years until the passing of the impugned order. For these reasons we see no merit in the appellant's prayer for his retrospective absorption in the said Establishment.
7. ' Coming to the appellant's prayer at clause (b) he desired that his seniority in the Inspectors' cadre be counted from 1-10-1978, the date on which he came from his parent Department to work on deputation in the said Establishment as Inspector, one rank 'above his substantive rank of Sub- Inspector. In other words he meant to say that he should be absorbed in the Establishment as Inspector from the very date he was deputed to work in that post. Absorption was nothing but appointment by transfer. Such appointment could only be made under rule 9(1) of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which is reproduced as under:-- "9(1) Appointments by transfer shall be made from amongst the persons holding appointment on regular basis in the same grade in which post to be filled exists."
8. ' Since the appellant was holding post of Sub-Inspector on regular basis in his parent Department, he could be appointed by transfer in the new Department of Anti-Corruption in the equivalent post of Sub-Inspector which had already been done in his case vide S&GAD's Notification dated 23rd July, 1986. His ambition for his absorption in higher post of Inspector having no legal backing was untenable.
9. ' The appellant's prayer at clause (c) only appears to be in consonance with his grievance that he was not satisfied with the order dated .15-12-1993 whereby his claim of seniority over the three private respondents had been rejected. That is why he prayed at clause (c) that seniority list be corrected and he be placed above respondents Nos. 4 to 6 in the seniority list. But the learned counsel for the respondents including the learned Government Counsel were of the view that the appellant's said prayer was time-barr,...d. Their contention was that the impugned order was not the original order and as such the departmental appeal filed against that order was uncalled for and could be dubbed as second appeal which was not permitted by law. The above arguments of the respondent's learned counsel were obviously based on their clear-cut stand that the seniority list communicated to the appellant by letter dated 11-11-1993 was final seniority list and not provisional one as had been averred by the appellant. The status of seniority list could be verified only from the seniority list itself and its covering letter. But we are sorry to say that both these documents on which the appellant sought to build his case in the present appeal have not been produced by him along with his memo. Of appeal. The said documents are therefore not available in the case file. However the official version as given in para. (10) on page 9 of the written statement filed by the learned A.A.-G., is reproduced as under:-- "10. That in reply to contents of para. 22 of the Memo. Of Appeal, it is submitted that seniority list issued in the year 1993 was not tentative as alleged but it was a regular seniority list repeating the same details/facts enumerated in the seniority list of 1991 and 1992, by adding new entrants in the Department as such appellant could not claim a new right of appeal and filing of Objections, Departmental appeal by the appellant against this very seniority list of 1993 was nothing but a reputation of the same story and another effort in futile and same was rightly, validly, bona fidely and lawfully refused, being incompetent and absurd."
10. ' We see no reason to doubt the authenticity of the above version, particularly when the appellant had taken no step to prove his contention. Consequently the impugned order cannot be held as original order necessitating the filing of departmental appeal against the same. Since the said order was appellate order passed on 15-12-1993 and communicated to the appellant on 22nd December, 1993, the present appeal was to be filed within 30 days of the date of the communication i,e, at least by 21st January, 1994. But it was actually filed after delay of about five months i,e, on 3-5-1994. As such the present appeal was time-barred.
11. ' Even on merits the appellant had absolutely no case. As stated above the appellant has prayed for correction of the seniority list of the Inspectors' cadre inasmuch as that his name be placed above the names of the three private respondents. In other words he claims to be senior to the said private respondents in the cadre of Inspectors. Seniority in any particular cadre is determined by the date of one's entry by regular appointment in that cadre. It was true that when the appellant was deputed to work as Inspector (i,e, one rank above his substantive rank in parent Department) in the said Establishment with effect from 1st October, 1978, private respondent, Nasir Ahmed only was working as Sub-Inspector whereas private respondent Mulazim Hussain was yet to be promoted to that rank. He was promoted as Sub-Inspector on 12-6-1979. However, the appellant became regular employee of the said Establishment following his permanent absorption as Sub- Inspector vide Chief Secretary's Order dated 23rd July, 1986. Until then he was only a deputationist.
12. The said Establishment, was under no legal obligation to absorb him from earlier date. We were not shown any document indicating that his absorption had the approval of the relevant D.P.C. Since this point was not agitated in course of the arguments by the other side, we proceeded on the assumption that the appellant's absorption was made with due approval of the D.P.C. Thus he would count his seniority in the Sub-Inspector's cadre from the date of his absorption i,e, 23rd July, 1986. As already stated private respondents had become Sub-Inspectors from earlier dates, Nasir Ahmed with effect from 12-9-1978 and Mulazim Hussain with effect from 12-6-1979. So they were senior to the appellant in the said cadre of Sub-Inspectors. As for third private respondent, Muhammad Khan, he, like appellant, had come to the said Establishment on deputation. But the difference between the two was that the appellant was Sub-Inspector in his parent Department and came on deputation as Inspector whereas the said Muhammad Khan was Inspector in his parent Department and came on deputation as D.S.P.
13. ' The private respondents M/s. Nasir Ahmed and Mulazim Hussain being senior in the cadre of Sub- Inspectors were promoted to the posts of Inspectors earlier than the appellant's promotion to the said post. It is appellant's own admission vide paras. 13 and 14 of the memo. Of appeal that private respondents Mulazim Hussain and Nasir Ahmed were promoted as Inspectors on 3-4-1986 and 13- 7-1986 respectively. The argument of the appellant's learned counsel was that since their promotion was made on temporary basis they could not claim seniority over their seniors. The question arose if their promotions were cleared by the D.P.C.? If so, who were their seniors promoted after their promotions so that the said private respondents were prohibited from claiming seniority over them. Our attention was drawn to the order dated 27-3-1986 of the Director, Anti-Corruption, Karachi which clearly shows that both the above private respondents were approved for promotion as Inspectors by the D.P.C. No, 1 in its meeting held on 17-3-1986. The said order does not show that the approval of the D.P.C. Was only for their temporary promotion. But if the word "temporarily" was mentioned in their orders of promotion, it was of no consequence in face of the D.P.C's unqualified approval. Moreover the subsequent order issued on 14-5-1990 by the same Directorate clearly shows that the aforesaid two private respondents were confirmed in the posts of Inspector with effect from 17-7-1986, which was earlier than the date of the appellant's confirmation (i,e, 14-9-1986) in the said post. Accordingly the said two respondents entered the cadre of Inspector earlier than the appellant's entry in that cadre. Therefore they were senior to him even in the cadre of Inspectors and as such the position assigned to the parties in the seniority list was correct and did not call for any interference.
14. ' The case of third private respondent, Muhammad Khan was slightly different from that of other two private respondents. As mentioned in the foregoing paragraphs, Muhammad Khan was Inspector in his parent Department when he came on deputation to the said Establishment as D.S.P., one rank above his substantive rank of Inspector. He was, therefore, permanently absorbed in the said Establishment as Inspector vide S&GAD's Notification dated 27-6-1991. Thus he became the Inspector in the said Establishment from the said date. Accordingly, it may be argued that in the Inspectors' cadre he was to rank junior not only to the above two private respondents but also to the appellant who were all promoted as inspectors from earlier dates. But by the subsequent Notification dated 26-11-1992 of the S&GAD issued in exercise of powers under section 24, Sindh Civil Servants Act, 1973, respondent Muhammad Khan was allowed seniority in that cadre with effect from 6th May, 1982, the date of his first arrival in the said Establishment. The appellant's learned counsel had taken serious exception to the above notification. But his objection was without any force. Because if the appellant who was already working as Inspector on the date of said notification felt aggrieved by the said notification he was free to have immediately challenged it before the appropriate forum. But instead he kept quiet and let the matter pass unnoticed. His objection against the said notification at this stage being belated is barred by limitation. Since the order contained in the above notification was not challenged in time, it attained the due finality and could not be re-opened at this late stage. Moreover even on merits the notification could not be held as unjustified. The private respondent Muhammad Khan was holding the post of Inspector in his parent Department from prior to the date of his deputation to the said Establishment. He started his career in the said Establishment as D.S.P. One rank above his substantive rank of Inspector. He continued to work in the higher post of D.S.P. Until he was permanently absorbed as Inspector equivalent to his substantive rank. If he were not given seniority as per above notification, he would have to work even under his juniors and that would have caused great hardship to him.
15. Therefore, the order under section 24 of the Sindh Civil Servants Act, 1973 was not without justification. In this regard the appellant's case was not at par with that of above respondent. As disclosed in para. 4 on page 6 of the written statement filed by A.A.-G., the respondent Muhammad Khan was working as Prosecuting Inspector when his services were requisitioned by the AntiCorktion Establishment whereas the appellant had himself requested for serving on deputation in the said Establishment. That was precisely the reason why the appellant was declined the benefit of retrospective absorption. Accordingly the respondent Muhammad Khan was also senior to the appellant in the cadre of Inspectors.
16. ' For above reasons we hold that the impugned order was correct and we see no justification to interfere with it. Therefore appeal is dismissed with no order as to costs.