' JAVED IQBAL, J.---The petitioner seeks leave to appeal against judgment, dated 25-5-1999 whereby appeal preferred on behalf of Rao Abdul Jabbar (respondent No,3) has been accepted.
2. Briefly stated the facts of the case enumerated in the impugned judgment are as follows:-- ' "The facts, according to the appellant are that in the 1st service appeal viz. Service Appeal No,71 of 1985, beside the 3 official 'respondents he cited M/s. Khalid Soomro and Amir Bux Bhatti, as private respondents Nos.4 and 5. The appellant had claimed seniority over the aforesaid private respondents as Agriculture Engineers, Grade-18. This Service Appeal No,71 of 1985 was dismissed by a single member bench of S.S.T on 30-7-1991 against which the appellant filed Civil Appeal No,210 of 1992 which was heard by the Hon'ble Supreme Court of Pakistan on 12-12-1995 and judgment announced on 19-12-1995. The crux of the judgment, by the Hon'ble Supreme Court of Pakistan is embodied in the last sentence which is reproduced below:-- ' 'The appellant, when considered and promoted in Grade-18 shall maintain his seniority as provided by rule 13-(iv). To this extent the appeal is allowed.'
' The reference to rule 13(iv) is to the Sindh Civil Servants (Probation, Confirmation and Seniority)
Rules, 1975 discussed at length at pages 10, 11, 12 and 13 of the said judgment of the Hon. Supreme Court of Pakistan, dated 19-12-1995. The appellant, therefore, contends that the respondents should have first granted him his due seniority in BPS.18, correcting the earlier impugned seniority list of BPS-19 officers, dated 1-6-1994 after the judgment of the Hon. Supreme Court of Pakistan announced on 1942-1995 and placed the appellant at S. No,2 of the seniority list i.e, after Mr. Azizullah Tunio, and above Mr. Khalid Hussain who ought to have been downgraded to S. No,3 under Rule 13(i) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. However, instead of doing so, the official respondents circulated yet another Provisional Seniority List of B-19 officers as stood on 1-8-1997 (in which they just deleted the names of M/s. Khalid Hussain Soomro and Amir Bux Bhatti who had retired in the meanwhile). Mr. Nazir Ahmad Ursani who was below Mr. Khalid Hussain Soomro (at S.No,3) of the Seniority List, dated 1-6-1994 was also placed above the appellant. According to the appellant/his counsel, the respondents violated the orders of the Hon.
Supreme Court of Pakistan, dated 19-12-1995. Therefore, according to them, this seniority list of 1997 needs to be set aside and the orders of the Hon'ble Supreme Court need to be implemented in letter and spirit -- for which a direction is sought from S.S.T. To the official respondents.
' The present appeal viz. 67 of 1998 was filed in S.S.T. On 26-3-1998. On 19-12-1998, Mr. Nazir Ahmed Ursani through his advocate Mr. Naimatullah Qureshi filed Miscellaneous Application No,71 of 1998 to become intervenor/private respondent. The advocate for appellant also applied to amend his appeal. Both applications were allowed on 2-2-1999. Amended appeal was filed on 12-2-1999. On 15-4-1999, the advocate for (private) respondent No,3 filed a statement that he would not file the w.s. And contest the matter on the basis of material placed on record by the appellant."
' The learned Service Tribunal has accepted the appeal vide impugned judgment which has been assailed by means of this petition.
3. It is mainly argued by Mr. Abdul Rahim Qazi, Advocate Supreme Court on behalf of petitioner that the Service Tribunal was not justified in relying upon the previous judgments passed by the Tribunal in Service Appeal No,71 of 1985, and by this Court in Civil Appeal No,210 of 1992 which was decided earlier on 19-12-1995 wherein the petitioner was never impleaded as a party and thus he cannot be condemned unheard without affording proper opportunity of hearing. It is urged with vehemence that the learned Service Tribunal has misinterpreted the Notification of even number, dated 16-10-1989 whereby seniority of the petitioner was fixed with retrospective effect by the competent Authority in accordance with the relevant Service Laws and Rules made thereunder and the same cannot be reversed or challenged without hearing the petitioner and moreso it has already attained finality which aspect of the matter escaped notice and resulted in serious miscarriage of justice. It is also pointed out that the provisions as contained in section 8 of Sindh Civil Servants Act, 1973 and Rules 11 and 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, were not examined in its true perspective rather the same were misconstrued and resulted in grave prejudice. It is also pointed out that the dictum as laid down in Civil Appeal No,161 of 1983 (Falak Sher v. Mukhtar Khan and others) decided by this Court on 26-2-1989 (not reported) could not be made applicable in view of the immense distinction between facts of the case.
4. Mr. Haider Ali Pirzada, Advocate Supreme Court appeared on behalf of Rao Abdul Jabbar Khan (respondent No,3) and strenuously controverted the view-point as canvassed .By Mr. Abdul Rahim Kazi, Advocate Supreme Court for petitioner by arguing that there is neither any misinterpretation of Service Rules nor any illegality or legal infirmity has been committed by the learned Service Tribunal and the conclusion as drawn vide impugned judgment is strictly in accordance with Service Laws and Rules made thereunder. It is contended with firmness that the petitioner was afforded proper opportunity of hearing who had joined the proceedings as intervenor and argued before the learned Tribunal at length. It is also pointed out that in fact a futile attempt has been made to frustrate the judgment passed by this Court whereby it was directed in a categoric manner that due seniority should be given to the respondent.
5. We have also heard Mr. Mian Khan Malik, learned Additional Advocate-General on behalf of Government of Sindh, who mainly argued that due seniority has been given to Rao Abdul Jabbar (respondent No,3) pursuant to this Court's order, dated 19-12-1995 and no further action was required to be taken by the Government.
6. We have carefully examined the respective contentions agitated on behalf of parties in the light of relevant provisions of Service Rules and record of the case and we have minutely perused the impugned judgment. It is an admitted feature of the case that respondent No,3 was promoted in NPS-18 on 25-7-1979 while petitioner was promoted in NPS-18 on 3-2-1980. It is quite amazing that vide Notification of even number, dated 18-10-1989 retrospective effect was given to the promotion of petitioner, that too after a decade without any legal justification. It is worth while to mention here that in NPS-19 respondent No,3 was promoted on 9-2-1980 while petitioner was promoted on 5-6- 1988 and subsequently by employing the old methodology having no legal foundation at all his promotion and ante-dated by means of Notification, dated 10-10-1989. It may not he out of place to mention here that even the respondent joined service on 13-3-1967 as Class-II Gazetted Officer, whereas the petitioner joined service on 5-9-1968 and in such view of the matter the petitioner could not have been declared senior as has been done by the Government. In so far as Notification bearing No,2 (284)S.O. (A-III) 84, dated 18-10-1989 is concerned that was issued in pursuance of Rule 13 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which could not have been done as no retrospective promotion could be granted by disturbing the valuable rights already vested in other employees. In our considered opinion the said Notification is a unique and classic example of misuse of authority and abuse of power and uncalled attempt has been made by distoring the legal position to frustrate the object and decision of this Court. This sort of administrative tyranny can hardly be appreciated. We are of the view that under Rule 13 of the Sindh Civil Servants (Probations, Confirmation and Seniority) Rules, 1975, the said Notification could not have been issued, and the petitioner could have been promoted with the same batch but he could not be made senior to respondent No,3. It is also to be noted that section 8 of the Sindh Civil Servants Act, 1973 makes the position abundantly clear in which it has been provided that the civil servants who are selected for promotion to a higher grade in one batch shall on their promotion to higher grade retain their inter se seniority as in lower grade. The above-quoted principle has also been incorporated in the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, and the question of any deviation does not arise. It is well entrenched legal position that "Seniority in the grade to which a civil servant is promoted is to take effect from the date of regular appointment to a post in the grade. Civil servants who are selected for promotion to a higher grade in one batch on their promotion of the higher grade are to retain their inter se seniority as in the lower grade". In the case of Bashir Ahmed Khan v. Mahmud Ali Khan (PLD 1960 SC 195) the principles relating to the vested right of seniority were laid down as follows:-- "(1) Every officer in a graded service has a vested right to a proper place in the seniority list.
(2) This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequent to the public interest which is deeply involved in the maintenance of a proper , spirit of order and discipline within the service.
(3) The giving by the High Court of a considered interpretation of the rules by which the somewhat complex question of placement, upon that same list of officers who entered the list through different channels, so far from being inconvenient interference with the day-to-day control of the service by Government, is indeed an action calculated to assist the Government in exercising such control peacefully and harmoniously.
(4) Seniority rules are not of the same nature and quality as the great body of departmental rules applicable to the conduct of officers and other such matters relating to the service as a whole, which are capable of being altered by the Government. These rules are of the highest validity and have the quality of settling the important matter of seniority among officers of service."
7. In so far as the question of conferring seniority with retrospective effect is concerned that cannot be done unless such right was established. It is true that Government has the power to make retrospective promotion but there must exist some criteria for assignment of such right with retrospective effect. Seniority may be so assigned that the seniority of senior is not adversely affected. The dates of promotion cannot be later than the dates of actual promotion because valuable rights accrue on promotion, and the official concerned cannot be denied the benefits which have accrued to them. It is well established by now that "regularization of seniority from the retrospective date is not permitted and is beyond the power of Government. In this regard reference can be made to PLD 1991 SC 82 + 1985 SCM R 1201. We have also observed that this Court vide order, dated 19-12-1995 has mentioned in a categoric manner that ride 13(iv) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, would be applicable in case of the respondent and accordingly his seniority should be fixed at due place but the said directive was obviously not adhered to and a Provisional Seniority List was issued which amazingly remained intact for couple of years and the respondent was deprived of his lawful rights. No Provisional Seniority List should be continued for more than a period of 6 months during which the objections may be invited, decided and Provisional Seniority List should be made final. Under the garb of Provisional Seniority List the glaring illegality and irregularity has been done as is apparent in this case and undue benefit has been given to various Government employees for certain reasons which are obvious. It has been observed with grave concern that continuation of Provisional Seniority List for years together has resulted in endless litigation which is an extra burden on the meagre financial resources of Government servants on the one hand and wastage of precious time of the Courts on the other besides its detrimental effects on the administration as a whole. We have thoroughly examined all the relevant rules and, we are, of the considered opinion that the view taken by the learned Service Tribunal is in accordance with Service Rules and settled norms of justice. The petitioner was never condemned unheard as pressed time and again because he got himself impleaded as intervenor (Application No,71 of 1998) and proper opportunity of hearing was afforded to him.
8. In the light of foregoing discussion we are inclined to the view that no cogent or convincing ground has been made for substituting our decision without any justification which is badly lacking. Accordingly, the petitions being devoid of merits are dismissed.