1. ' S. NASIM HAIDER (SENIOR MEMBER).---This is actually, the second round of litigation, between the appellant and the official respondents--first round having culminated in Civil Appeal No,210 of 1992 (arising out of the judgment of this Tribunal in Service Appeal No,71 of 1985) and decided by the Hon'ble Supreme Court of Pakistan/Judgment announced on 19-12-1995.
2. ' The appellant being aggrieved with the seniority list of BPS-19 issued on 20-11-1997, allegedly in defiance of Hon'ble Supreme Court Judgment dated 12-12-1995, filed a departmental appeal. The said departmental appeal having remained undisposed of and after waiting for the stipulated period, the appellant has filed the present service appeal.
3. ' The facts, according to the appellant are that in the 1st service appeal viz. Service Appeal No,71 of 1985, besides the 3 official respondents he cited M/s. 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 inference 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'ble Supreme Court of Pakistan dated 19-1'2-1995. 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'ble Supreme Court of Pakistan announced on 19-12-1995 and placed the appellant at Serial No,2 of the seniority list i,e,. After Mr. Azizullah Tunio and above Mr. Khalid Hussain who ought to have been downgraded to Serial 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 Provincial Seniority List of BPS-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'ble 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.
4. ' 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 written statement and contest the matter on the basis of material placed on record by the appellant. This statement was taken on record. Mr. Naqshbandi, Advocate for the appellant argued at great length, giving the chronological history of the litigation. According to him, appellant was appointed on ad hoc basis, as Assistant Agriculture Engineer (Class-II) on 25-2-1967. On selection through West Pakistan Service Commission, he was appointed on regular basis on 23-10-1967 to the then West Pakistan Agriculture Engineers Service/Class-II. The appellant according to the merit list of the, said commission was at Serial No,1, in order of merit whereas Mr. Khalid Hussain Soomro was at Serial No,4, while Mr. Amir Bux Bhatti was at Serial No,5. The appellant was granted BPS-17 w,e,f, 1-2-1978 vide Notification No,1(58)S.O.(A-III)/78, dated 30-3-1978.
5. ' In 1973, M/s. Khalid Hussain Soomro and Amir Bux Bhatti were given ad hoc promotion in BPS-18. Mr. Khalid Hussain Soomro's promotion to BPS-18 was regularised w,e,f, 6-10-1973. However, appellant was not promoted to )3PS-18. He filed departmental appeal finally culminating in the judgment of the Hon'ble Supreme Court of Pakistan announced on 19-12-1995. Instead of implementing that decision in letter and spirit, the official respondents issued impugned seniority list of 1997 which was appealed against on 29-11-1997 within time. After waiting for stipulated waiting period, the appellant filed the present service appeal, having received no orders on the departmental appeal.
6. According to him, the (official) respondents should have first given effect to the judgment of Hon'ble Supreme Court of Pakistan--prepared/revised the seniority list of BPS-18 of officers and then issued seniority list of BPS-19 officers which was not done. Hence, according to him the impugned seniority list of 1997 of BPS-19 officers needs to be set aside. In support of his arguments, he placed reliance on the following citations:--
(1) 1994 PLC (C.S.) p.201.
(2) 1999 PLC (C.S.) p.279.
7. ' The A.-A.G. In the first instance invited our attention to the prayer of the appellant (in amended appeal) which reads as under:-- "It is, therefore, prayed that the Hon'ble Tribunal may be pleased to direct the respondents Nos.1 and 2 to determine the seniority of the appellant accordingly."
8. ' He argued that the respondents have already determined the seniority of the appellant by the seniority list of 1997 recording therein in Remarks column:-- "As per judgment of Supreme Court--He has been allowed protection of his seniority w,e,f, 6-10- 1973 in BPS-18."
9. ' He, therefore, contended that the decision of Hon'ble Supreme Court of Pakistan, has already been implemented and there was nothing more required on part of the official respondents to be done.
10. He, however, conceded/confirmed that the private respondent/intervenor in present service appeal was working as Assistant Mechanical Engineer; Public Health Department up to 2-11-1970 i,e,. At the time of disintegration of West Pakistan. After being declared surplus he was absorbed in Agriculture Department as Assistant Agriculture Engineer Class-II. Appellant according to A.-A.G.
11. Was promoted in BPS-18 on regular basis on 25-2-1979 whereas Mr. Nazir Ahmad Ursani was promoted on 3-2-1980, but it was given retrospective effect i,e,. w,e,f, 6-10-1973 vide Notification No,2(284)S.O- (A-III)-84, dated 18-10-1989. In accordance with the judgment of Hon'ble Supreme Court of Pakistan according to A.A.-G. Appellant has been allowed protection of his seniority w,e,f, 6-10-1973--the date his next junior Mr. Khalid Soomth was promoted. As regards seniority in BPS-19, he contended that though appellant was promoted earlier to Mr. Ursani i,e,. On 9-2-1986 and Mr. Ursani was promoted on 5-6-1988, Mr. Ursani's promotion to BPS-19 was anti-dated to 1985 vide notification dated 10-10-1989. He, therefore, pleaded that the appeal of appellant be dismissed.
12. ' Mr. Naimatullah Qureshi, Advocate for the private respondents/intervenor, argued that the original service appeal of the appellant viz. Service Appeal No,71 of 1985 in S.S.T. Was. Against M/s. Khalid Hussain Soomro and Amir Bux Bhatti in which Mr. Nazir Ahmed Ursani/his client was not a party.
13. Similarly, in Civil Appeal No,210 of 1995 before the Hon'ble Supreme Court of Pakistan, he was not a party. As such, according to him, the decision of the Hon'ble Supreme Court could not be applied and implemented as against his client who was neither a party to the litigation before the S.S.T. Nor in Hon'ble Supreme Court, between the appellant and the official and two private respondents (M/s. Khalid Hussain Soormro and Amir Bux Bhatti) in the first round of litigation between them.
14. ' The Senior Member observed that 1st Appeal of the appellant bearing No,71 of 1985 was filed on 18- 9-1985 against the orders of the respondents dated 1-4-1982 regretting the claim of the appellant (to BPS-18) under Rule 13 of the seniority, rules deciding therein that his seniority will take effect from the date of his regular position. The matter attained finality vide judgment of the Hon'ble Supreme Court of Pakistan announced on 19-12-1995 allowing the appellant benefit of Rule 13(iv) over the next junior Mr. Khalid Hussain Soomro--at Serial No,2 in the Seniority List. Of BPS-19 on 1-6- 1994. He therefore, asked was it not mandatory/obligatory on part of the official respondents to refix/reassign the due seniority of the appellant while publishing/circulating the seniority list in 1997 after the decision of the Supreme Court? The counsel, however, submitted that the appellant had not filed objections to Seniority List dated 1-6-1994--which had attained finality. He lastly said that the impugned Seniority List of 1997 was only, provisional and appeal before S.S.T. Can be filed only against a final order or Final Seniority List. He, therefore, pleaded that the appellant has no case of seniority as against the private respondent/intervenor and hence, it should be dismissed.
15. ' We have gone through the arguments of either side carefully and dispassionately--perused with their help the record produced in this appeal as well as the record of previous litigation viz. Service Appeal No,71 of 1985 (before S.S.T./its judgment) as well as Civil Appeal No,210 of 1992 (before the Hon'ble Supreme Court of Pakistan and its judgment announced on 19-12-1995).
16. ' We would like to record that the subject of seniority is dealt in section 8 of the Sindh Civil Servants Act, 1973 which is reproduced for its better understanding: "8(1). For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre a grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority, in such service cadre grade, as the case may be,
(2) Subject to the provisions of subsection (1) the seniority of a civil servant shall be reckoned in relation to other civil servants, belonging to the same service or grade whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, grade or post shall be determined, as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: ' Provided that 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."
17. ' These substantive provisions were further supplemented and consolidated by framing of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. Particular attention is invited to the provisions of following rules, in the said seniority rules: "11 Inter se seniorit of civil servants as Pointed in a batch or on the same date shall be determined.- -(a) in the case of persons appointed by initial recruitment, in the order of merit assigned by the selection authority and if such authority is either not competent to assign such order of merit or has omitted to do so and is unable to overcome the commission for reasons beyond its control, the seniority shall be determined by the appointing authority: ' Provided further that a person selected in earlier selection shall rank senior to a person selected in a later selection;
(b) in the case of persons appointed by promotion on the basis of their inter se seniority in the lower grade;
(c) in the case of persons appointed by initial recruitment vis-a-vis person appointed by promotion on the basis that the persons appointed by promotion shall rank senior to the persons appointed by initial recruitment;
(d) in the case of persons not covered by clauses (a) to (c) on the basis that persons elder in age shall rank senior to persons younger in age. If these provisions of law are kept in view, it is crystal clear that:--
(i) M/s. Khalid Hussain Soomro and appellant entered the then West Pakistan Agriculture Engineers (Class II) through the then West Pakistan Service Commission while Mr. Amir Bux Bhatti was absorbed as A.D.C. Employee.
(ii) The appellant, in order of merit assigned by the said Commission was at Serial No,1--while Khalid Hussain Soomro at Serial No,4 and Mr. Amir Bux Bhatti as A.D.C. Employee at Serial No,5 in Class II.
(iii) Therefore, in their subsequent promotion to BPS-17 (and above) M/s. Khalid Hussain Soomro and Amir Bux Bhatti will continue to rank junior to the appellant unless he was superseded in accordance with law and that order attained 'finality' in accordance with the provisions of section 8 of the Sindh Civil Servants Act, 1973 read with Rule 11 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975.
(iv) The appellant's promotion to BPS-18 was delayed/he was promoted later on because of some adverse ACRs--later/washed away by the Hon'ble Supreme Court of Pakistan as recorded at page 12 of its said judgment as reproduced below:-- 'The appellant was not considered as it was alleged that there was an adverse remark in his ACR for the year 1972. The appellant challenged that this adverse ACR for the year 1972 was never communicated to him. The respondents have not brought anything on record at any stage to prove that such adverse remarks were duly communicated within the time contemplated by the Rules. Non-communication of adverse remarks makes the authenticity of such remarks completely ineffective. On the basis of such uncommunicated remarks, a civil servant cannot be subjected to any adverse order. Therefore, the entire ground for not considering the appellant while promoting respondents Nos.4 and 5 was completely without any basis and legal justification.'
(v) The Hon'ble Supreme Court of Pakistan, in the last two lines of its judgment at page 13 was pleased to order:-- '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.'
(vi) As result thereof and the use of the word 'shall', in the judgment of the Hon'ble Supreme Court of Pakistan, the respondents (official) were required mandatorily to accord the appellant, seniority in BPS-18 (and above) over and above his next junior under the said Rule 13(iv) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. However, before the decision of the Hon'ble Supreme Court of Pakistan in Civil Appeal No,210 of 1992 announced on 19-12-1995--the official respondents circulated the seniority list on 1-6-1994 of BPS-19 while the matter was sub judice, based on their incorrect reading of law as well as facts. The same injustice was not only repeated but perpetuated i,e,. M/s. Khalid Hussain Soomro and. Amir Bux Bhatti were again made senior to him not legally--but through a bureaucratic gimmick. Simultaneously, the official respondents also made the private respondent/intervenor namely Nazir Ahmed Ursani (till then junior) senior to appellant/although the appellant first joined service on 13-3-1967 as Class-II gazetted officer whereas Mr. Ursani joined service on 25-9-1968 the original date of promotion of the appellant to BPS-18 was recorded on 25-2-1979 whereas Mr. Ursani was originally promoted in February, 1980. The official respondents in our considered view failed to, apply their mind judiciously and, take note, of the implication of proviso to section 8(4) of the Sindh Civil Servants Act, 1973 reproduced (again) below:-- 'Provided that 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' ."
18. ' We have noted with constraint that the Notification No,1 (58)S.0.(A-III)/78 regarding grant of BPS-17 to Mr. Ursani contains the Words "Notwithstanding qualification condition" and consequently made its validity and sanctity questionable. We are more pained to note that despite the facts that the appellant was originally promoted to BPS-18 and 19 earlier than Mr. Ursani 'on 25-2-1979 and 9-2- 1986 as against 3-2-1980 and 5-6-1988 yet by one stroke of pen/one notification being No,2(284)S.O.(A111)84, dated 18-10-1989, Mr. Ursani's promotions to BPS-.18 and 19 were anti-dated to 6-10-1973 and 18-3-1985 which smacks of extraneous considerations.
19. ' Undoubtedly, if the appellant and the private respondent both are deemed to have been promoted to BPS-18 w,e,f, 6-10-1973 naturally, the appellant, who was senior to him in lower grade by virtue of his earlier appointment i,e,. 13-3-1967 as against later appointment of Mr. Ursani/private respondent, on 25-9-1968, shall continue to be senior to him in BPS-18 and by virtue of Rule 13(i) on his subsequent promotion to BPS-19. Hence seniority of appellant is protected under Rule 13(i) in BPS-19 not only over his junior Mr. Khalid Hussain Soomro but also over Mr. Ursani unless it is proved by corroborating evidence that the appellant was superseded or deferred in accordance with the law.
20. ' This claim should have been granted to the appellant in good grace, not done so, forcing the appellant to again approach the S.S.T.
21. ' In view of what has been stated the appeal is allowed with no orders as to the cost or past financial benefits because of precarious/well-known financial constraints of the Provincial Government with a word of consolation to the appellant that "All is well that ends well"..
22. ' Given under the hands of Seal of this Tribunal this 25th day of May, 1999.