1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---This appeal is directed against the Notification, dated 13- 8-1996 at page-59 whereunder the respondents Nos. 2 to 5 have been allowed seniority over and above the appellant in the cadre of Ex-PCS Officer BPS-17 Assistant Commissioner. The private respondents have been assigned seniority in the cadre of Assistant Commissioner BPS-17 below the name of Mr. Shoukat Ali Panhwar and above the name of Mr. Ali Akbar Hingro.
2. ' The appellant being aggrieved and dissatisfied. Against impugned order/notification dated 13-8- 1996 filed departmental appeal dated 8-9-1996 and since the departmental appeal was not decided within statutory period of 90 days, therefore the present appeal has been filed before this Tribunal challenging the legality of the impugned Notification dated 13-8-1996.
3. ' We have heard the counsel for the appellant Mr. M.M. Aqil Awan, Ch. Muhammad Jamil for the private respondents and Mr. S.M. Sayedain Zaidi, the learned Assistant Advocate General, Sindh.
4. ' The learned counsel for the appellant Mr. M.M. Aqil Awan contended that the appellant is senior to the private respondents as he had been promoted from the post of Assistant Commissioner on regular basis vide notification, dated 16-5-1985 whereas the respondents Nos. 2, 3 and 4 were inducted in service as Assistant Commissioner by way of direct recruitment through Sindh Public Service Commission on 23-7-1988 vide the Notification dated 23-7-1988 whereas the respondent No,5 was inducted in service on 18-2-1992.
5. ' That the learned counsel further contended that the First Provincial Seniority List was issued on 1-1- 1991 wherein the name of the appellant was shown at Serial No, 66 and respondents Nos. 2, 3 and 4, were shown at Serial Nos.103, 105 and 106 respectively. No appeal or objections were filed by the private respondents. Thereafter, second provisional seniority list was issued on 17-11-1994 in which the appellant was shown at Serial No, 22 whereas the respondents Nos.2 to 5 were shown at Serial Nos. 45, 47, 48 and 98 respectively. However, the objections were filled by the respondents Nos. 2 to 5 on 14-7-1995 after 8 months challenging the seniority of the appellant. The third seniority list was issued vide Notification dated 15-2-1996 in which the appellant is shown at Serial No,21 and respondents Nos. 2 to 5 are shown at Serial Nos. 39, 41, 42 and 81 respectively. The contentions of the learned counsel are two-fold viz if the objections dated 16-7-1995 are treated as objections on the provisional seniority list then the same stand overruled by implication as the position of the private respondents in the seniority list dated 15-2-1996 is below than the appellant, alternatively it is contended that if the objections dated 16-7-1995 are treated as appeal then it is hopelessly time-barred.
6. ' That the counsel for the appellant further contended that before deciding the seniority it was incumbent upon the private respondents to implead all the necessary parties i,e, Assistant Commissioners who were likely to be affected by the order passed in this matter before the respondent No,1 and since the private respondents have failed to implead the necessary parties, therefore, their appeal was not maintainable. The learned counsel has relied upon the case of Ahsan Ali v. Secretary KANA Division, Islamabad, reported in. PLJ 1996 (T.C) page 212.
7. ' That the learned counsel for the appellant further contended that the impugned order has been passed on the back of the appellant and all other promotee Assistant Commissioners who are adversely affected in respect of their seniority and as such the order is in violation of principle of natural justice. He relied upon the case of Mst. Anisa Rehman v. PIAC, reported in 1994 SCMR page 2232.
8. ' The learned counsel has also questioned impugned notification being reasonless as the competent Authority has failed to record any reason whatsoever in assigning the improved seniority to the private respondents. According to the learned counsel the impugned order is not only bad for want of reasons but discririminatory as well as the learned counsel has invited our attention to the notification dated 23-7-1988 at page 39 whereunder alongwith respondents Nos.2, 3, 4 and 7, other persons were appointed and in the merit list Mr. Ghulam Sarwar Jamali and Ali Dino Gahoti and Baqaullah Umar and Muhammad Ashraf Siyal were shown senior than the respondents Nos.2 to 4 and if at all the respondents Nos. 2 to 5 were entitled to seniority, the 4 persons were senior to respondents Nos.2 to 5.
9. ' They were certainly entitled to the same seniority but they were denied that benefit and no reason has been recorded for that purpose. The learned counsel has relied upon the case of Aslam Warraich v. Secretary Planning and Development Division reported in 1991 SCMR 2330 as well as section 24-A of the General Clauses Act which has been introduced by way of amendment and the said amendment is reported in NLR 1997 Federal Statutes page 247 September part.
10. ' Against these contentions of the learned counsel we have heard Ch. Muhammad Jamil, the learned counsel for the respondents Nos. 2 to 5 and the learned Assistant Advocate-General Syed Syedain Zaidi. We have directly asked the question from the learned counsel for the private respondents to explain under what circumstances and under what reason the co-appointees of respondents Nos. 2 to 5 as mentioned in the notification dated 23-7-1988 were not given the same benefit which was given to respondents Nos. 2 to 5 though the names of the aforementioned 4 officers are over and above in the merit list than the respondents Nos.2 to 5.
11. ' The learned counsel candidly conceded that apparently this is an illegality which makes impugned notification, dated 13-8-1996 legally infirm document. He further conceded that the case may be remanded back to the competent Authority to refix the seniority after removing such lacuna. We have repeated the same question to the learned A.A.-G who gave the only explanation that since the said officers had not applied by way of objections or appeal before the competent Authority, therefore, the same benefit was not accorded to them. We are unable to accept the explanation of the learned A.A.-G. When we invited the attention of the learned A.A.-G. To section 8 of the Sindh Civil Servants Act and rule 10 of the Civil Servant (Probation, Confirmation and Seniority) Rules, 1975 with the observations that it is the duty of the competent Authority to prepare the seniority list and to assign the seniority to the civil servants in accordance with the law and their entitlement, the learned A.A.-G. Also conceded that non-inclusions of the names of officers, who were senior to respondents Nos.2 to 5 in the merit list, as it apparent on the face of it, was an illegality stamped on impugned notification and conceded that the case may be remanded back to the competent Authority for refixation of seniority.
12. ' Under these circumstances we allowed this appeal vide our short order, dated 15-10-1997 thereby remanding the case to the Competent Authority to decide the matter afresh in accordance with law. T' hat since we are remanding the case to the competent Authority ,without touching the merits, therefore, we would refrain from adjudicating upon the contentions raised by the learned counsel of the appellant, except one.
13. ' We direct the competent Authority to adjudicate upon the contentions of the learned counsel for the parties recorded in this order at the time of deciding the matter of the seniority. However, we would refer the case of Aslam Warraich v. Secretary Planning and Development Division, reported in 1991 SCMR 2330 relevant page 2335 wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "In this case it cannot be said that no reason is mentioned in the rejection of respondent's representation in the orders, dated 9-10-1988. But in many other case were we have seen that the rejection is a simple ritualistic rejection. Even if it is not a mandate by any law that the officer concerned should be informed about the reasons which prevailed with the Authority concerned, it would not be illegal either to give reasons: at least, from now onward. It being the judgment of this Court on this legal question, the same would be observed as declared law."
14. ' The learned counsel for the appellant highlighted his submission that it was the duty of the Competent Authority to record its reason while interfering with the seniority being carried by the appellant from the year 1985 and was reflected in the provisional lists of 1991, 1994 and 1996.
15. ' The learned counsel for the appellant has submitted that since after the decision of the case of Aslam Warraich the law has undergone a change inasmuch as under Act No,XI/97, General Clauses (Amendment) Act, 1997 section 24-A, has been inserted as new section consisting of two subsections which is reported in NLR 1997 Federal Statutes page 274 September part. Section 24-A:
(i) Exercise of powers under enactments subsection (1): Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment. Subsection (2): The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as it is necessary or appropriate, give reasons for making order, or, as the case may be, for issuing the direction and shall provide a copy of the order, or as, the case may be, the direction to the person effected prejudicially". On the basis of this law it was contended that now it is statutory duty of the competent Authority to record its reason while passing the order in pursuance of the powers conferred on the competent Authority.
16. ' That since we have found no reason in the impugned order, dated 13-8-1996 for passing the same and this was also one of the main consideration for setting aside the same, apart from the conceding of the learned counsel for the private respondents and the learned A.A.-G. However, from the perusal of the written statement it appears that the competent authority has passed the order in pursuance of the dictum laid down in the case of Federation of Pakistan v. Azam Ali, reported in 1985 SCMR 386 and case of Nasimul Haq Malik v. Chief Secretary to Government of Sindh, reported in 1996 PLC (CS) page 921. The dictum laid down by the Hon'ble Supreme Court is that in case the department is maintaining the quota/ratio for direct recruitment and for promotees then the Department has to adhere to such quota while making appointment either by way of direct recruitment or by way of promotions. In case a promotee is promoted through by way of D.P.C. Against a post which does not fall within the promotees quota, this promotion would remain officiating till the vacancy occurs in the promotees quota as envisaged in section 9 of the Sindh Civil Servants Act.
17. ' The learned counsel for the appellant has not disputed preposition of law laid down by the Hon'ble Supreme Court in the case of Azam Ali and Nasimul Haq Malik. The grievance of the learned counsel is that the competent Authority has misunderstood the proposition of law and such exercise cannot be made in pursuance of the dictum laid down by the Hon'ble Supreme Court unless the numerical calculations of the strength of the cadre is made by the department. Here in this case no record has been produced by the learned A.A.-G. For the Government before the Tribunal to show that on 16-5-1985 what was total strength of the Assistant Commissioners, when the appellant was promoted on regular basis. The order of the Government promoting the appellant on regular basis would carry presumption that he has been promoted against the vacancy available in the quota unless proved otherwise. It appears that the office has not placed proper facts and figures before the competent Authority when the impugned order was passed on 13-8-1996. It is also not clear as to on what basis the seniority of the private respondents was fixed below. Mr. Shoukat Ali Panwher and above Mr. Ali Akbar Hingoro though both the officers and appellant also other officers were promoted on regular basis 16-5-1985 in the same batch and on the same date. The exercise made by the Competent Authority, if allowed to remain in the field, in the shape of impugned notification, dated 13-8-1996, it would result into most illogical and undesirable consequences. For instance the date of commencement of the seniority of the private respondents would remain ascertainable as being 23-7-1988 and 18-2-1992 respectively whereas the date of commencement of seniority of the promotees would hang in vacuum for the times to come. Unless it is determined that how many of the promotees were promoted over and above their quota on the relevant date and at what point of time the vacancy occurred in their quota and they are accordingly adjusted against that vacancy, their date of commencement of seniority in BPS-17 would remain sounded in mystery. Much water has flown under the bridges from 1985 to 1997. It was imperative on the competent Authority first to determine that what was the total strength of the promotees and direct recruits in the year 1985 as per quota of 50% as envisaged by the West Pakistan Civil Servants (Executive Branch). Rules, 1964 and as per such quota how many promotions of the promotees were beyond strength of the "promotees quota" and at what point of time they stood adjusted against the posts fallen in their quota, they cannot be declared junior to the private respondents as their promotions have been made on regular basis earlier in time than the induction of the private respondents by way of direct recruitment.
18. ' Perhaps the competent Authority was unaware of the ratio decidandi in the case of Nasimul Haq Malik and that is why the exercise of the competent Authority has resulted in passing of the impugned order, dated 13-8-1996. The competent Authority has not realised that this exercise would give rise to multiplicity of the litigation, unnecessarily burdening this Tribunal with unnecessary work because naturally those Assistant Commissioners who were over and above in the merit list under the appointment order of the private respondents, dated 23-7-1988 would make representations for assigning them the same benefits of seniority which would further drift below the appellant and other officers of his category on the seniority list on one hand and on the other hand it would make their promotion from 1985 to 1997 as officiating not entitling them to count their seniority in BPS-17 in the cadre of Assistant Commissioners. Such consequences are to be avoided at all cost.
19. ' We, therefore, direct the competent authority to prepare final seniority list of Assistant Commissioners in the light of observations made hereinabove, thereby assigning the date of seniority to the promotees by determining their strength of quota in accordance with their inter se seniority in the lower grade. We mean to say that for instance in the year 1985, three officers are promoted over and above the quota and in the same year two vacancies fallen in their quota then the senior most in the lower grade would be adjusted first and this order would be observed while assigning the seniority to those promotees who were found to have been promoted over and above in their quota.
20. ' We have noted with concern that right from 1985 no final seniority list in the cadre of the Assistant Commissioners has been prepared which was also a statutory requirement. We direct the competent Authority to finalise such seniority list in the light of observations made hereinabove before 1-1-1998.
21. ' These are the reasons for our short order, dated 15-10-1997 under which we have set aside the order, dated 13-8-1996. Till the finalization of the fresh seniority list the seniority assigned to the appellant under the seniority lists 1991, 1994 and 1996 should not be disturbed.