' MUHAMMAD IQBAL KAZI (MEMBER).--The appellant above-named was appointed as Assistant Electric Inspector (BPS-17) on 7-7-1990 in the Irrigation and Power Department, Government of Sindh. Appellant has alleged that in spite of having been regularized in service and being senior in service according to seniority list, he was not considered for promotion on account of certain ill- gotten flimsy charges which subsequently stand exonerated, the respondent No,3 who being a deputationist was promoted as Electric Inspector in BS-18. In spite of representations made to respondent Nos.1 and 2, the appellant was not allowed the benefits of his seniority position, i,e, promotion in BS-18; whereas, the respondent No,3 has been shown extraordinary favour of being promoted in spite of his secondary position in the seniority list.
2. Furthermore, the appellant has also produced U.O. Letter No,SOIII (S&GAD) 13-87/97, Karachi, dated 23-4-1998 which is available on record and purports to state that the Chief Secretary has been pleased to approve the recommendations of Departmental Promotion Committee of the Irrigation and Power Department, Government of Sindh regarding promotion of Mr. Muhammad Saleem Bughio, Assistant Electric Inspector (BPS-17) to the post of Electric Inspector (BPS-18) subject to the condition that his promotion would be without prejudice to the seniority of his senior Mr. Azizullah Memon (appellant) (whose promotion has been deferred by the D.P.C.), and he would be reverted as Assistant Electric Inspector if Mr. Azizullah Memon is recommended for promotion after the cause of his deferment ceases to exist.
' The appellant also alleges that even after the cause of deferment stands removed, he has not been considered for promotion over his juniors.
3. Accordingly, having relied upon the seniority list issued by the office of respondent No,2 vide No,A-1/3-II/31-11-A dated 13-7-1992 and, the aforesaid order of respondent No,1, the appellant, after having exhausted all such remedies available under rules, being aggrieved, has filed the instant appeal under section 4 of the Sindh Service Tribunal Act, 1973 with the main prayer that based on his seniority position, vis-a-vis., the respondent No,3 coupled with the aforesaid orders passed by the competent Authority, i,e, respondent No, ,1, his matter be placed before the Departmental Promotion Committee for legitimate benefits.
4. Briefly, facts of the case are that the appellant was appointed on 7-7-1990 as Assistant Electric Inspector-BPS-17 and subsequently regularized after completion of requisite formalities with effect from the date of his appointment. However, just about 5 days prior to holding of Departmental Promotion Committee meeting, i,e, on 10-11-1997, appellant was charge-sheeted on certain routine grounds which rendered his deferment for promotion to BPS-18 and the respondent No,3 being a deputationist from Karachi Development Authority but subsequently absorbed on 1-4-1991 and.
Junior to the appellant was cleared by the Departmental Promotion Committee in its meeting held on 15-11-1997. After a couple of months, the appellant was exonerated from the charges on the basis of an inquiry report. In the meanwhile, the case of respondent No,3 was sent to the competent Authority, i,e, respondent No,1 for approval. A conditional approval was accorded which purports to state as under:-- ' The Chief Secretary has been pleased to approve the recommendations of DPC of the Irrigation and Power Department, Government of Sindh regarding the promotion of Mr. Muhammad Saleem Bughio (respondent No,3) Assistant Electric Inspector (BPS-17) to the post of Electric Inspector (BPS- 18) subject to the condition that his such promotion would be without prejudice to the seniority of his senior Mr. Azizullah Memon (appellant) (whose promotion has been deferred by DPC), and he would be reverted as Assistant Electric Inspector BPS-17 in the event of non-availabilit of post of Electric Inspector, if Mr. Azizullah Memon (appellant) is recommended for romotion after the cause of deferment ceases to exist."
5. However, the aforesaid observations/conditions laid by the competent Authority (respondent No,1) does not find any mention in the notification dated 23rd April, 1998 issued in respect of respondent No,3. The appellant then made representations before the respondents Nos.1 and 2 but could not succeed to find remedy and remained deprived of his legitimate right on the basis of his seniority as well as the conditional approval of the competent Authority in case of promotion of the respondent No,3.
6. In his written statement, the respondent No,2, Secretary, Irrigation and Power, Government of Sindh has admitted the following material contentions made by the appellant:--
(i) Appellant's position of seniority over the respondent No,3.
(ii) Departmental representations made by the appellant citing the conditions laid down by the respondent No,1 while according approval to the promotion of the respondent No,3.
(iii) In para.4 of the written statement, the respondent No,2, being Administrative Head of the Department states as under:-- ' It is further stated that the respondent No,3 viz. Muhammad Saleem Bughio, who was basically an employee of Karachi Development Authority first inducted in this Department as Assistant Electric Inspector on deputation basis. After some time with the approval of competent Authority he was absorbed as Assistant Electric Inspector in relaxation of Recruitment Rule--Due to his political influence he managed to get him promoted as electric Inspector (BPS-18) when there was no post of Electric Inspector available in the Department. As his absorption as Assistant Electric Inspector was not in accordance with the Recruitment Rules the Government of Sindh as Policy decision and under the order of Governor Sindh has decided to repatriate all the Officers who were not qualified for the post or who were not appointed according to Recruitment Rules to their parent Departments. As such Mr. Muhammad Saleem Bughio (respondent No,3) has since been repatriated to his parent Department i,e, Karachi Development Authority vide this Department Notification dated 18-1-2000. However, Mr. Muhammad Saleem Bughio has filed Constitutional Petition No,102 of 2000 before the Honourable High Court of Sindh which is pending for decision............................................................................................................
7. The above statement unequivocally establishes the fact that absorption and promotion of the respondent No,3 were devoid of merit and were made on political considerations which fact corroborate the assertions of the appellant. Matter pending before the Hon'ble Sindh High Court Is in the context of repatriation of respondent No,3 from the Department per policy decision of the Government of Sindh as stated by the concerned Section Officer and the learned Assistant Advocate-General Sindh on the last date of hearing.
8. We have heard at length arguments made by learned Counsel for .The appellant, learned Assistant Advocate-General, Sindh for respondents Nos.1 and 2 and the learned Counsel for the respondent No,3, perused the record and proceedings of the case and have by consensus construed the following points for determination:--
(i) Whether the seniority list prepared by the office of the respondent No,2 bearing No,A-1/3-11/31-11- 4 dated 13-7-1992 contains any ambiguity?
(ii) Whether appellant was deprived of his legitimate seniority over respondent No,3 and its ultimate benefits?
(iii) Whether the conditional approval to the promotion of respondent No,3 by respondent No, 1 was reflected in the Notification No, A-1/3-11/81-11 (B), dated 23rd April, 1998 purporting to the promotion of respondent No,3?
(iv) Whether the admission of respondent No,2 in his written statement justify the promotion of respondent No,3 on the basis of senioritycum-fitness?
(v) Whether the elements of justice, fairplay and equity based on seniority list entitles the respondent No,3 to promotion over his senior?
9. After thoughtful consideration and full application of mind, we have framed the following replies to the above points of determination:
(i) 'Negative.
(ii) Affirmative.
(iii) Negative.
(iv) Negative.
(v) Negative. Reasons: (Point No,1)
10. It is a matter of record that none of the respondents have challenged the seniority list as indicated in para. 8(i) (supra). The aforesaid Notification has identified the appellant at Serial No,1 and that of two others, including the respondent No,3, at Serial Nos.2 and 3, respectively. This seniority list was circulated amongst all concerned for objections, if any, but since, no objection came forward, the same has attained finality. Besides, the appellant has been shown as regular appointee of the Department on 7-7-1990; whereas, the respondent No,3 has been shown as deputationist with effect from 20-1-1991 followed by absorption on 1-4-1991. Accordingly, neither there exists any ambiguity, whatsoever, as for the seniority list is concerned nor there is any dispute over the seniority position of the appellant vis-a-vis, the respondent No,3, hence, for all practical purposes, it is a settled issue, The reply, therefore, to this point of determination is in the Negative.
Point No,II:
11. Perusal of relevant record coupled with written statement filed by respondent No,2, it has very conspicuously transpired that the appellant was charge-sheeted for a routine lapse, (rectified later on) just 4-5 days prior to the convening of meeting of the Departmental Promotion Committee. The appellant was charge-sheeted on 10-11-1997 and D.P.C. Was held on 15-11-1997. We have very strong reasons to believe that such move has been well-engineered and maneavoured on account of political considerations in connivance with the then Secretary, Irrigation and Powers Department, Government of Sindh (Mr. Shuja Ahmad Junejo), causing thereby. Wrongful gain to the respondent No,3 at the cost of the appellant. Ultimate benefit of the seniority position of the appellant has been blatantly denied. We are constrained to take serious note of the questionable role played by the aforesaid then Administrative Secretary of the Department joining hands in the conspiracy to ditch the appellant and jeopordiaze the legitimate rights of his officer.
12. Besides, the act of sheer haste displayed by the said then Secretary, Irrigation and Power Department, Government of Sindh (Mr. Shuja Ahmed Junejo) by convening the meeting of D.P.C., particularly, under the situation where post of Electric Engineer (BPS-18) was not even available speaks volumes of recklessness and mala fide intentions. There was no emergent public interest involved to bye-pass the seniority list and cause rash or head on promotion of respondent No,3 against all canons of justice, equity and fairplay, Our considered reply to this point of determination is in the Affirmative.
Point No, III.
13. At the outset, it is pertinent to note the following observations contained vide U.O.S.O. III (S&GAD)
13-87/97, Karachi, dated 23-4-1998 issued from the office of respondent No,1 and available on record:--
2. The Chief Secretary has been pleased to approve the recommendations of D.P.C.. Of the Irrigation and Power Department, Government of Sindh, regarding the promotion of Mr. Muhammad Saleem Bughio (respondent No,3) Assistant Electric Inspector (BPS-17) to the post of Electric Inspector (BPS-18) subject to condition that his such promotion would be without prejudice to the seniority of his senior Mr. Azizullah Memon (appellant) (whose promotion has been deferred by DPC), and he would be reverted as Assistant Electric Inspector (BPS-17) in the event of non- availablity of post of Electric Inspector, if Mr. Azizullah Memon (appellant) is recommended for promotion after the cause of deferment ceases to exist.
(Sd.)
(Dhani Bux Memon) Section Officer-III S.& G.A.D."
' The Secretary, ' Irrigation and Power Department. Government of Sindh, Karachi.
14. The respondent No,1 has thus taken a well-guarded, fair, cautious and rigorous note while according conditional approval of the proposal made out by the respondent No,2. However, we take serious exception to the action contemplated by respondent No,2, the then Secretary, Irrigation and Power Department Government of Sindh, Mr. Shuja Ahmed .Junejo. The Notification No,A-1/3-11/81-11(B), Karachi, dated the 23rd April, 1998, available on record, purporting to the promotion of respondent No,3 is blankly and blindly silent on the conditionality clause of approval accorded by the respondent No,1, allowing thereby, a complete walk-over to the respondent No,3.
Surprisingly, this notification of promotion has been issued on the very same day such conditional approval was accorded by the respondent No,1, Furthermore, the impugned notification also states that "On his promotion to the post of Electric Inspector in BPS-18, Mr. Muhammad Saleem Bughio is allowed to continue/work as Electric Inspector, Karachi Region, Karachi". Which means that respondent No,3 had a blue-eyed status even prior to his formal promotion is BPS-18.
15. Element of grave misconduct on the part of respondent No,2, i,e, Mr. Shuja Ahmad Junejo, the then Secretary, Irrigation and Power Department, Government of Sindh has glaringly surfaced on the following counts:--
(a) Allowing respondent No,3, originally a deputationinst to hold a senior post even prior to his so called promotion, overlooking the availability of a senior person, i,e,, the appellant, originally, a regular appointee of the Department.
(b) Charge-sheeting the appellant in a very casual and routine irregularity just Five days prior to convenieng the meeting of Departmental Promotion Committee, merely to overcome or get rid off the seniority position of the appellant as to cause wrongful gain to the respondent No,3.
(c) Wilful defiance of the observations of respondent No,1 who approved the recommendations of the Departmental Promotion Committee conditionally in very tacit and clear terms to outrightly display blatant favouritism to the respondent No,3.
(d) Deliberately designed to ignore the case of the appellant who was exonerated of the flimsy charges for next promotion on the basis of seniority. Thus. Depriving the legitimate and just cause of the appellant.
(e) Promotion of the respondent No,3 was made at a time when no post of electric Inspector-BPS- 18 was available, yet the Secretary, Irrigation and Power Department, Government of Sindh did not resort to reversion of respondent No,3 even after exonerating the appellant in terms of conditional approval accorded by the respondent No,1 .
16. In view of the above acts of wilful misconduct, excessive use of authority with mala fide intentions and deliberate dispensation of favouritism, we would certainly convey our observations to the competent authority in the operating part of this judgment.
' The reply, therefore, to this point of determination is in the Negative.
Point Nos.IV and V).
17. The most interesting, elaborate, focal and candid point in this entire matter is the written statement furnished by respondent No,2. The crux of this case also hinges around para.4 of the statement made by Mr. Muhammad Idrees Rajput, the then Secretary, Irrigation and Power Department, Government of Sindh, who is one of the successor of Mr. Shuja Ahmad Junejo.. The relevant portion may be reproduced as under:-- ' It is further stated that the respondent No,3 viz. Muhammad Saleem Bughio, who was basically an employee of Karachi Development Authority was first inducted in this Department as Assistant Electric Inspector on deputation basis. After some time with the approval of competent Authority he was absorbed as Assistant Electric Inspector in relaxation of Recruitment Rule. Due to this political influence he managed to get him promoted as Electric Inspector (BPS-18) when there was no post of Electric Inspector available in the Department. As his absorption as Assistant Electric Inspector was not in accordance with the Recruitment Rules the Government of Sindh as a policy decision and under the orders of Governor Sindh has decided to repatriate all the officers who were not qualified for the post or who were not appointed according to Recruitment Rules to their parent Departments. As such Mr. Muhammad Saleem Bughio has since been repatriated to his parent Department i,e,, K.D.A. Vide this Department Notification dated 18-1-2000. However, Mr. Muhammad Saleem Bughio has filed Constitutional Petition No,102 of 2000 before the Hon'ble High Court of Sindh which is pending for decision "
18. In fact, the above statement corroborates the contents of the appellant's entire case as well as his prayer. Such candid statement has caused the unfolding of events that led to woes and misery of the appellant.
We do not find any reason to disbelieve the veracity of the statement which stands verified by the learned Assistant Advocate-General.
19. In view of the foregoing, our considered reply to these points for determination is definitely in the Negative as the respondent No,3 was not fit for promotion on the basis of seniority-cum-fitness basis. However, since, this Tribunal has no jurisdiction in the matters relating to promotion, we confine to exercise our jurisdiction on the basis of default in appropriate adjudication of undisputed seniority list whereby, benefit, if any, accrued to the appellant have in-judiciously been denied to him.
20. We have already identified in the preceding that seniority list purporting to that of the appellant and respondent No,3 has attained finality at no stage, it has been challenged in any manner, whatsoever. Thus, notification of promotion of respondent No,3 having been issued in contravention of its approval by the competent Authority respondent No,1 is certainly not liable to sustain as the same has inflicted irreparable wrong to the appellant. As held in 1991 PLC 39(c).
"Wrong done to affected persons could not be made to exist for all times to come under any principle of law where order passed was basically incorrect, no legal effect could be deemed to have been given to a wrong order,, irrespective of whether it had been acted upon".
21. Similarly, 1984 PLC (C.S.) 1610, it has been held in a case wherein promotion was withheld for non- availability of ACRs, The Honourable Court ruled that in the circumstances of the case, he (Petitioner) be deemed to have been promoted with retrospective effect with effect from the date his juniors were promoted. He was also allowed arrears.
22. Yet in another case wherein the promotion was withheld on account of trial in a criminal case reported vide 1984 PLC (C.S.) 287, it was held that the effect of the acquittal was as if he had never been tried. He was promoted and declared senior to his juniors who have been promoted earlier to him.
23. Furthermore, according to 1993 SCMR 609, "Seniority in a post, service, or cadre to which a civil servant is promoted would take effect from the date of a regular appointment to said post, service or cadre". It is further reiterated that "for the purpose of seniority in a particular grade date of regular appointment is the determining forctor-1993 SCMR 609 = 1993 PLC (C.S.) 852".
24. In view of the foregoing reasons duly supported by various legal citations, we are to the considered, consensus and firm opinion to issue the following directions:--
(a) Uphold the seniority list bearing No,A-1/3-II-A, dated 13-7-1992, issued from the office of respondent No,2 as the same has attained finality.
(b) Set aside the impugned Order No,A-1/3-11/81(B), dated the 23rd April, 1998, purporting to the promotion of respondent No,3 as the same has been issued malafidely without taking into consideration the observations of the competent Authority i,e, respondent No,1, the Chief Secretary, Sindh contained vide U.O.S.O. III (S&GAD) 13-87/97, Karachi, dated 23-4-1998.
(c) Thus, in the follow-up of (b) above, the respondent No,2 may consider the desirability of holding a fresh DPC wherein the seniority position of the appellant may be considered afresh fairly and impartially.
(d) As discussed and reasoned in preceding paras., we have come across the act of grave misconduct on part of then Secretary, Irrigation and Power Department, Government of Sindh (Mr. Shuja Ahmad Junejo), who is responsible for creating serious lapse, causing thereby, an utter mess in the Department and played with the destinies of his subordinates. However, we leave it to the discretion of the competent Authority, viz. The Chief Secretary, Sindh to take a serious note of the uncalled for act of misconduct committed by the aforesaid Officer.
' Given under our hands and Seal of this Tribunal on this 16th day of February, 2002 at Karachi.