1. ' ABDUL RASHEED MEMON (MEMBER-II).---This appeal is regarding assignment of seniority to Mr. Rafiq Ahmed Siddiqui and Akhtar Hussain Mirza over and above Mr. Ashique Hussain Yousifani the appellant who being aggrieved with the notification dated 3-5-1997 came before this Tribunal after fulfilling all the legal formalities as per section 4 of the Sindh Service Tribunals Act, 1973.
2. The facts of the case as narrated in the appeal are that the appellant entered into Government service on selection by the West Pakistan Public Service Commission as Assistant Engineer in BS-17 on regular basis and was appointed to the service on 10-3-1970. During the course of service he was promoted to BS-18 as Executive Engineer on 24-10-1985 on regular basis. While promoting Mr. Yousifani to BS-18 the departmental authority had deferred the promotion of respondents Nos.3 and 4, i,e, the above-named officers as they were not eligible for promotion at the relevant time, due to departmental enquiries which were pending against them and that one of them was awarded minor penalty also at that time. Subsequently the other officer was also awarded minor penalty of stoppage of two yearly increments, with the approval of competent authority. Thus, they were not exonerated of the charges which they were facing, at the time of the said promotion. This fact has also been clearly stated in the minutes of the Departmental Promotion Committee meeting held on 9th and 10th June, 1985 supplied by the appellant. The relevant portion reads as under:-
(a) Mr. Akhtar Hussain Mirza. "Subject to clearance of the departmental enquiry pending against him in the Hyderabad Sewerage Enquiry Case.
(b) The Committee did not clear Mr. Rafique Ahmed Siddiqui, Assistant Engineer on account of the fact that this officer has been imposed minor penalty of stoppage of two annual increments for the years 1985 and 1986. The Chairman observed that officer will be considered eligible for promotion after expiry of the penal period. His case was, therefore, deferred."
3. ' That the appellant has been working as Executive Engineer with his entire efficiency and to the satisfaction of his superiors. That in the year 1987 another meeting of the Departmental Promotion Committee was held wherein these two officers were cleaned for promotion with immediate effect as notified vide notification dated 29-11-1987. In pursuance of the said notification respondent No,4 assumed the charge vide notification dated 8-3-1998. Based on these promotions a Provisional Seniority List of Executive Engineers (BS-18) of the Public Health and Engineering Department, Government of Sindh as stood on 1-9-1994, was circulated wherein name of the appellant was at Serial No,8, and the names of the private respondents are at S.Nos.11 and 13 respectively. Thus, they were shown to be junior to the appellant at that time. The same position was reiterated in the Seniority List issued in the year 1996 as it is stood on 25-3-1996, wherein again the appellant was at Serial No,7, respondent No,3 at Serial No,10 and respondent No,4 at S.No,11. After one year of this list, appellant received a copy of notification dated 3-5-1997 (received by him on 10-5-1997) wherein both the junior colleagues were shown to have been promoted to BS-18 with effect from 24-10-1985 and declared them senior to the appellant who had all along been shown to be junior to the appellant to BS-18.
4. ' The appellant being aggrieved and dissatisfied with the said notification filed a departmental appeal to respondent No,2 on 5-6-1997. However, during the same year when his appeal was pending with department another Provisional Seniority List of Executive Engineers as stood on 1-6- 1997 was circulated. The appellant was surprised to find his name below, that of respondents Nos.3 and 4. Whereupon, he again filed objections against the said Provisional Seniority List. The said appeal of the appellant was, however, rejected by respondent No,2 on 13-5-1999 which was served upon him on 4-6-1999 through a letter dated 3-6-1999. The appellant then filed the present appeal with the prayers to:--
(a) Set aside and quash the impugned order, dated 3-5-1997 and order, dated 13-5-1999 and Seniority List dated 1-6-1997 and to direct the respondents Nos.1 and 2 to assign the seniority to the appellant over and above the respondents Nos.3 and 4 in the Seniority List and restore his seniority position as was on 25-3-1996.
(b) Any other relief may kindly be granted which this Honourable Tribunal may deem fit and proper in the circumstances of the case."
5. ' The appeal was admitted on 2-7-1999 and the respondents were issued notice to file written statements.
6. ' Respondents No,1/2 while replying to the appellant's averments have stated that according to Seniority List of Assistant Engineers Mr. Rafique Ahmed Siddiqui, respondent No,3 was at Serial No,6, Mr. Akhtar Hussain' Mirza at Serial No,10 and Mr. Ashiq Hussain Yousifani at Serial No,11. However, the Departmental Promotion Committee which considered the promotion on 9th and 10th June, 1985 had deferred the case of the two respondents with the following remarks:-- ' Mr. Rafique Ahmed Siddiqui. The Chairman observed that this officer will be considered eligible for promotion after expiry of the penal period.
7. ' Mr. Akhtar Hussain Mirza. Subject to clearance of the departmental enquiry pending against him in the Hyderabad Sewerage Enquiry case.
8. ' From the minutes of the meeting it is evident that promotion of the above officers was to be considered after eligibility and expiry of the penal period which was to expire on 2-12-1986. After settlement of the issue and promotion the respondents regained their seniority vide notification dated 3-5-1997, whereby the two respondents became senior than the appellant. They have also quoted Rule 13 of the Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules, 1975 whereby any officer, who if not promoted alongwith his batchmates, for the reasons given in the said rule, were to be assigned the original seniority on their subsequent promotion. Thus, it is clear that the above rule protects seniority, therefore, seniority of respondents Nos.3 and 4, stands on their original position i,e, above the appellant. They have also stated that the notification dated 3- 5-1997 was issued with the approval of the competent authority as per Rule 13 (ibid). The appellant being originally junior to the respondents was placed at his original position in the seniority and there was no question of his being declared junior, excepting his senior colleagues. The private respondents also filed their written statements claiming as under:--
(1) Respondent No,3 in his reply has stated that he had all along been senior to the appellant due to the fact of his being appointed earlier to the appellant i,e, on 26-3-1964.
(2) That the respondents had challenged his late promotion and for restoration of his seniority under rule 13 through an appeal for the reasons that a civil servant who is not promoted to the higher scale alongwith his junior colleagues due to exigencies of service on promotion, subsequently enjoys same seniority, if promotion had not been challenged and his promotion not ante-dated.
(3) That respondent has since been promoted on regular basis as Superintending Engineer in BS.19 vide Government Notification dated 23-2-1998 and given seniority in BS.19; whereas the appellant still continues to be in BS.18 cannot claim nor can be allowed seniority over and above answering respondent. As such, the case of the appellant cannot be treated equivalent and at par with the answering respondent who for all purpose is senior to the appellant. Besides, the appellant never challenged his promotion to BS.19 which was notified on 30-2-1998; neither the seniority in BS.19 as stood on 1-1-2000, hence claim of the appellant was groundless and for this fact reliance has been placed on the following two reported cases:--
(a) 1998 SCMR 633 (Zahid Arif v. Government of N.-W.F.P.), and
(b) 1999' PLC (C.S.) 837 (Abdul Khaliq v. National Tariff Commission).
9. ' Since by virtue of seniority the answering respondent No,3 has been promoted earlier than appellant, he cannot claim seniority, when he was not his batchmate; when he was promoted in 1998 to BS.19. As far imposition of minor penalty, it has been clarified that the promotion of respondent No,3 was deferred by Departmental Promotion Committee in 1985, does not confer seniority to the appellant, nor it clinches the powers of competent authority to disfavour answering respondent No,3. Imposition of penalty on respondent No,3 was an issue exclusively between Government and the respondent which has nothing to do with any other co-civil servant including the appellant. After deferment his case was again placed before the Departmental Promotion Committee wherein he was promoted to BS-18 in 1987. It was the competent authority which accepted recommendation of Departmental Promotion Committee and approved his promotion and regularised the same retrospectively with effect from the date, when his junior was promoted by extending benefit of Rule 13. Thus after notification assigning the correct seniority was issued, no cause of action remained with the appellant, to approach the Tribunal; as the original seniority position had been restored by the competent authority. While answering to the averments in para. 9 of the appeal, he has taken the position that answering respondent No,3 was exonerated and his A.C.Rs, were upgraded, hence respondent became fit for promotion. It has also been contested that the deferred promotion will not be regained, in higher grade on the basis of lower grade seniority, as malafidely and wrongly alleged; as the respondent has never been junior to the appellant but has all along been senior to the appellant. Even presently he was in BS.19 whereas the appellant still continues to be BS-18. That the appellant never challenged the promotion and assignment of seniority to the appellant hence it attained finality; as such, the Tribunal cannot set aside or quash the two notifications at this belated stage in view of the following citations:-- ' 1999 PLC (C.S.) 510; Khalid Latif Chaudhry. 1985 SCMR 2099; Muhammad Naqi Khan. 1984 SCMR 379; Ibrar Hussain.
10. ' 1996 PLC (C.S.) 995; Iqbal Ahmad.
11. ' He has also claimed the appeal to be time-barred and has also requested for its dismissal on the said account.
12. ' The answering respondent No,4 has also taken almost same reasoning and quoted the same judgments. However, it has been stated that he was never declared either disqualified or unfit for the purpose of anti-dated promotion and neither answering respondent has been superseded by appellant, but not notifying answering respondent, promoted alongwith appellant is Defermation Simpliciter, hence in view of policy notification dated 2-4-1987 the seniority of answering respondent if promoted later, antedated will not loose its validity, legality and efficacy even after two years when he was notified to be promoted to BS-18 with A.C.Rs, upgraded. As for contentions of para. 9 are concerned, it is vehemently denied that answering respondent was shown junior to appellant in 1996, because the said reference is to the correspondence between two Section Officers only which has nothing to do with seniority and hence is misconceived and misquoted. It has also been denied that answering respondent was not exonerated. He was not only exonerated but his A.C.R. Was upgraded and ante-dated promotion and seniority was given for the reasons as cited by respondent No,3. He has also claimed that it is wrong to say that' he was not entitled to benefit of Rule 13, since his case was that of deferement hence he was duly, legally and bonafidely given benefit under said rule, notified and availed the lawful benefits and there was no illegality or irregularity in the same, hence the contents of appellant were not correct and denied. It has further been stated by the respondent that the appellant had filed representation to the Chief Secretary being appellate authority and it remained undisposed till 120 days' statutory period expired on 3- 10-1997, but the appellant did not come to the Tribunal within due date, but instead he kept quite and let the matter pass unnoticed, thus, his challenging of the antedated seniority was time barred for which there is no application for condonation as required under the following two citations:--
(a) Iqbal Ahmed v. Province of Sindh (1996 PLC (C.S.) 995).
(b) Ibrar Hussain v. Secretary, N.-W.F.P. (1984 SCMR 379)
13. ' Thus, the two private respondents have made the prayer that the impugned order, dated 30-5- 1997 was not challenged in time as such it attained finality and hence cannot be set aside or quashed. By order, dated 30-5-1992 appellant's appeal was legally rejected which was valid and cannot be quashed nor set aside. That the answering respondents are enjoying antedated promotion and benefit of seniority under rule 13 of Seniority Rules which is very much alive, operative and existed in the field as valid and as such the seniority assigned to them in 1997 cannot be disturbed by the Tribunal for which reliance has been placed on the case of Aftab Hussain Shah v. Federation of Pakistan (PLJ 1997 Tribunal Case (Service) 264) and Government of N.-W.F.P. v. Bune Khan (1985 SCMR 1158). The appellant in consequence was not entitled to any benefit. The Advocate of the appellant while arguing the case reviewed full facts as narrated above and stated that the minutes of the Departmental Promotion Committee held on 9th and 10th June, 1985 while deferring the cases of respondents had held them not eligible hence deferred amounts to supersession, because benefit of Rule 13 can only be allowed when someone had not been considered due to the reasons given therein. However, considering a person ineligible at the time of holding Departmental Promotion Committee clearly suggests that he is not to be deferred but to be superseded. Besides it has also been recorded in the minutes that he will await the penal period of further promotion. In subsequent year promoting them from the earlier date will be in violation of the decision of the Departmental Promotion Committee and also against the rules, as no benefit under rule 13 can be extended to a person who was not held to be eligible for promotion at the earlier date. Thus, when they were promoted on 29-11-1998 to BS-18 it was clearly mentioned, as was the intention of Departmental Promotion Committee, to be with immediate effect. Subsequent notification restoring their seniority under rule 13 is thus, not based on the recommendations of the Departmental Promotion Committee but on the sweet wish of the Competent Authority, on the representations filed by the respondents. It is also not clear as to how the penal period was waived or under what circumstances and to what extent their A.C.Rs, were upgraded. There is no provision in the rules for upgradation of A.C.Rs, as claimed by the respondents in their written statements.
14. They were clearly not eligible to be promoted in the year 1985 and became eligible for promotion in the year, 1987, after the penal period was over, thus, extending any benefit to them and ante- dating their promotion was a clear case of favouritism and hence mala fide and not tenable and the Tribunal has every right to examine the mala fide of any order impleaded before it. As far delay in filing the appeal is concerned, contended that there was no delay because the department has been issuing Provisional Seniority Lists and the appellant had been filing objections over them and without hearing those objections and finalizing the Seniority List no further orders could be passed.
15. The department has been persistently issuing Provisional Seniority Lists which did not give cause of action to the appellant to come before the Tribunal until and unless these were finally notified.
16. However, the notification ante-dating the seniority of two private respondents was duly notified and on receipt of the same by the appellant, a representation was filed to the Chief Secretary, which was rejected and on the basis of this rejection order appeal was filed, within time hence it was competent. He, therefore, prayed the Tribunal to declare the impugned notification dated 3-5- 1997 to be issued mala fidely, without lawful authority and hence bad in law. Therefore, it may be struck out and the appellant be declared senior to be private respondents for all practical purposes. He also claimed that the impugned order does not fall within the purview of Sindh Civil Servants (Appointment, Promotion and Seniority) Rules and was violative of section 24-A of the General Clauses Act. The appellant was not made a party in the proceedings in which the impugned order was passed. As such, it was incompetent and the order passed by incompetent authority i,e, Secretary to Government of Sindh, Local Government, Rural Development and Public Health Engineering Department was "functus officio" because the competent authority in this case was the Chief Secretary, and not Secretary as provided in Rule 10(1) read with Rule 9(2) read with section 8(4), proviso of the Civil Servants Act, 1973 as laid down in the 1995 SCMR page 16; wherein it has been clearly laid down "that a civil servant can come to the Service Tribunal after his appeal/representation before the department had been disposed of, or, he can wait for the decision on his departmental appeal for 90 days and then file appeal before Service Tribunal without any further delay. Civil servant chose to wait for the final decision on his departmental appeal and he filed the appeal before the Tribunal within 30 days of the communication of the order of the rejection of his appeal. Since the appeal was rejected and the rejection order was communicated subsequently and he preferred appeal before the Tribunal within 30 days. In the circumstances his appeal could not be dismissed on the ground of limitation". Accordingly the said facts which are in consonance with the facts in the present appeal, hence the Advocate of the appellant stated that his appeal cannot be treated as time-barred on the ground of limitation. The Advocate of the appellant, therefore, requested that the prayers made in the appeal as stated above may kindly be granted alongwith cost.
17. ' Mr. Abdul Lateef Ansari, Advocate for the private respondents Nos.3 and 4 while rebutting the averments of the appellant stated that the order allowing seniority to the respondents was to give benefit of rule 13 to them, and as such any order allowing the benefit as already enjoyed by a civil servant, cannot be held to be illegal or mala fide. Besides he also contented that the appeal was not within time as the time during which the appeal could be filed, expired in 1997 hence the 1999 appeal of the appellant had become time-barred. Now his request for setting aside the notification dated 3-5-1997, cannot be entertained at this belated stage, as his clients have since been promoted to BS.19. He also stated that the seniority issued on 2-7-1997 was duly circulated and the appellant had filed appeal against the same also which suggests that the required time for filing the appeal stood expired long ago. Besides replying to the facts as given in para. 9 of the appeal, he stated in the proceedings as contented by the appellants, do not mention, that at, any stage the private respondents were superseded. Since they were simply deferred for the reasons given in the minutes; on their promotions to BS.18 at a later date, they became eligible for the benefit of rule 13 which clearly indicates the circumstances in which a civil servant, if not promoted alongwith his juniors will regain his seniority on his promotion at subsequent date. He cited the following cases in support of his argument:--
(1) 1984 PLC (C.S.) 287, and
(2) 1986 PLC (C.S.) 968 (Amanullah Khan).
18. ' The case at S.No,1 is a matter wherein, it has been held that if a person is not considered fit for promotion because of certain eventualities like a criminal case or departmental enquiries or adverse remarks, and if he is acquitted, exonerated and the adverse entries are expunged he would be treated as if he has never been convicted or held guilty or recipient of such entries would be considered to be a civil servant with unblemished record of service, and in such case it is necessary to set out in the promotion order, dated (sic) that the promotion of junior officer is temporary and the senior officer has been ignored on account of serious charges against him in a departmental enquiry. Therefore, he will be allowed his original seniority. In the subsequent case, the citation deals with an absolutely different phenomena which emanated from acquittal of criminal charges. The Supreme Court had held in that case that the rules permitted improvement of seniority on promotion in such cases to safeguard the right of civil servants faced with situations which were beyond their control. The Supreme Court had in another case (1985 SCMR 1394) held that when an officer was under suspension or facing departmental enquiry and his promotion had been deferred; eventually was exonerated of the charges and was given promotion from the date on which he would have otherwise been promoted, the Government servant may be granted pro forma promotion with financial benefits provided it could be held on the basis of his service record and performance that he would have been promoted on the due date, but in the circumstances he was incorrectly treated as junior or was facing departmental enquiry or was overlooked. Other related cases cited are (a) PLD 1985 SC 195; (b) 1991 PLC (C.S.) 615; (c) 1992 PLC (C.S.) 440. He also stated that the private respondents since stood promoted to BS.19 hence appellant had lost all claims against them and is not entitled to claim any benefit in seniority over and above his seniors.
19. ' A.A.-G. While supporting the arguments of the Advocate of the private respondents, however, stated that the two private respondents were not exonerated nor the punishment awarded to them was set aside at any stage and that they were promoted vide notification dated 29-11-1987 -on regular basis with immediate effect after completing the penal period.
20. ' In the light of the facts as given by the A.A.-G. That the private respondents were not exonerated and that they had to await for their promotion after 1985, we cannot accept the plea of the advocate of the respondents that they were exonerated and that their A.C.Rs, were upgraded.
21. Because the Government in their statement have not denied that fact that the punishment awarded to the respondents is still on their record and that they were never exonerated. The minutes of the First Departmental Promotion Committee are also clear on this point that they had to await the mandatory penal period to be promoted to higher scale which is also the fact and not denied by the official respondents.
22. ' In the light of the above facts and the Court decisions, the points, besides the limitation which have emerged are whether (a) the private respondents were exonerated of the charges, (b) their A.C.Rs, were upgraded, (c) that they were rightly given the benefit of Rule 13 vide notification dated 3-5-1997. Our views on these points are that: (a) The respondents were awarded minor penalty which was not taken back nor they were exonerated at any stage during or before their promotion in 1987. (b) That their A.C.Rs, were upgraded, is beyond our comprehension because the rules do not provide for any such action nor it is supported with any law from the respondents. We think that the word has been used deliberately to misguide the Tribunal which should have been avoided as no law provides for upgradation of A.C.Rs, No adverse entries are reported nor any entries have reportedly been expunged, therefore, they remained as they were before and after the promotions and that there is no question of their upgradation. (c) In their decision the superior Courts have rightly held that benefit of Rule 13 can be extended to those officers/officials who are exonerated of the charges and thereafter, nothing will come in their way to get the restoration of their original seniority or promotion at any subsequent stage. (d) That notification dated 3-5-1997 allowing them seniority in pursuance of Rule 13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 is therefore, nothing but a clear-cut favour from the Secretary, Public Health Engineering and Katchi Abadis Department, hence is invalid in law, as he was not the competent authority in cases of officers in BS.18; and that the same was issued without appreciation of facts as discussed above. The same is, therefore, declared to be invalid, without lawful authority and, therefore, cannot be sustained in the eyes of law. Consequently we allow this appeal in the light of prayers of the appellant to place him over and above the private respondents Nos.3 and 4 in the seniority list; with no order as to costs.