1. ' BAHAUDDIN SIRHINDI, (MEMBER-I).---The appellant being aggrieved by the order of rejection of his representation dated 9-1-1999 for grant of seniority passed by Chairman, Enquiries and Anti- Corruption Establishment, Government of Sindh has preferred this appeal for grant of seniority over his respondents Nos.4 to 13. Narrating the facts of the case, he has stated that he was initially appointed as Police Sub-Inspector in the Prosecution Branch of Police vide order dated 15-11-1976.
2. He was deputed to Anti-Corruption Establishment vide order dated 22-4-1982 where he reported for duty on 15-5-1983 and was promoted as Inspector on one stage promotion and posted as Additional Circle Officer, Anti-Corruption Establishment, Sukkur. He continued to work in that Establishment but was repatriated to Police Department (Legal Cell) alongwith similar other colleagues vide order dated 15-9-1990. An application was moved by one Dr. Ghulam Ali Sangi of Larkana recommending appointment of Mr. Ghulam Sarwar Sangi for appointment as Inspector Anti-Corruption, to be taken up on deputation with one stage promotion, to the Chief Minister, Sindh. Whereupon. It was ordered by the Chief Minister that he may be taken up on deputation; vide letter dated 8-1-1991 on the application of Mr. Sangi for deputation with one stage promotion in Anti-Corruption Establishment the Chief Minister directed that applicant may be taken up on deputation with one stage promotion. Upon this the applicant was placed on the disposal of Anti- Corruption Establishment with effect from 4-4-1991. However, the Director Enquiries recommended to the S&GAD vide their letter dated 25-4-1991 for absorption of the appellant and two other officers in the Anti-Corruption Establishment to implement the orders of Chief Minister Sindh. Accordingly, vide order dated 19-6-1991 the Chief Secretary with the approval of competent Authority notified the permanent absorption of the appellant alongwith two other officers in the rank equivalent to their substantive rank in their parent department i,e, Sub-Inspector.
3. ' The appellant, thereupon made an appeal to the Director Anti-Corruption Establishment, Karachi for determination of seniority as Sub-Inspector from the date of substantive appointment/confirmation as P.S.I. And ad hoc promotion as Inspector till clearance of Departmental Promotion Committee. The appeal of the appellant was not considered as appears from letter dated 27-1-1992. Thereafter he moved an appeal to the Chief Minister, Sindh through proper channel whereupon the then Chief Minister called for the appearance on 24-4-1994. A Notification .Dated 5-10-1994 was subsequently issued by the S&GAD which shows that the Government of Sindh was pleased to allow seniority to the appellant in the rank of Sub-Inspector in the Anti-Corruption Establishment w,e,f, 15-11-1976 i,e,, the date of his substantive appointment as P.S.I. In Sindh Police under section 24 of the Sindh Civil Servant Act, 1973. He was promoted as Inspector (BS-14) in Anti-Corruption vide Office Order dated 30-7-1995 alongwith five other officers.
4. Upon this Notification, he moved an. Application on 21-8-1995 requesting for fixation of his seniority in the rank of Inspector in the light of notification dated 30-7-1995. His representation was placed before the Chairman, Anti-Corruption Establishment by the Director Anti-Corruption, Karachi duly recommended vide letter dated 23-11-1995. The appellant also approached the High Court of Sindh and his matter was taken up at Sukkur Bench on 10-12-1998. This was with reference to a petition of the appellant which was pending before the Chairman, Anti-Corruption Establishment, Sindh and sought direction of the Court in the matter. The Court ordered that the said petition be decided within a period of one month and thus disposed of the case vide order dated 10-12-1998.
5. ' In pursuance to High Court order dated 10-12-1998, the Director, Anti-Corruption Establishment passed the order inter alia stating therein that the seniority of Mr. Sangi will reckon from the date of regular appointment/absorption in the Establishment with effect from 19-6-1991 as provided under rule 9 (a) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 read with Rule 12(b) of Sindh Civil Servants (Confirmation, Probation and Seniority) Rules, 1975. His promotion to the post of Inspector shall be made from the date of eligibility and after having qualified the upper school course as provided in the rules. Mr. Sangi had passed the said course in 1992 and promoted as Inspector in the year 1995 while the others who had qualified the said course earlier than Mr. Sangi shall stand senior to him. Thus his appeal/representation for seniority was rejected. An appeal was preferred before the Appellate Authority i,e, Chief Secretary, Sindh on 25-1-1999 but after waiting for the statutory period and not finding any reply from the Appellate Authority he preferred this appeal on 18-5-1999 with the prayer to allow him to count his seniority in the cadre of Sub-Inspector and Inspector in the Anti-Corruption Establishment over Respondents Nos.4 to 13 with consequential benefits.
6. ' In this case Private respondents Nos.6, 7 and 11 tiled their written statements alongwith Official respondents. Whereas rest of the respondents did not bother to join the proceedings. The Official respondent No,3 in his written statement has admitted the facts as narrated by the appellant and have further added that his first representation was rejected by the Competent Authority on 1-6- 1994 and he was informed, accordingly. Similarly his second representation on the same grounds was re-examined and that too met the same fate. The representation of Mr. Sangi was also rejected vide order dated 9-1-1999 (impugned order) thus the appellant had no merit was not allowed the seniority and promotion as the pleas, as raised by him in his three representations were not found entertainable.
7. ' Advancing the grounds for rejection of the appeals, it has been stated that the order dated 9-1- 1994 is based on the solid, legal and factual grounds. The tentative Seniority List was prepared keeping in view the service record of all the officers and was in conformity with the relevant provisions of law and the appellant was assigned proper seniority. It has further been stated that the substantive appointment of the appellant as P.S.I. In Sindh Police was on 15-11-1976 but he joined Anti-Corruption Establishment in 1982, was repatriated on 15-9-1990 and subsequently rejoined on his own request on 19-6-1991. Thus he was assigned seniority under sub-rule (b) of rule 12 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 from the date of his permanent absorption in the said Establishment. Thus the appellant had no case and have requested for dismissal of his appeal.
8. ' The private respondents have also narrated almost the same facts, accepting tht most of the issues raised in the appeal were not relevant to the question involved in this appeal. They have also challenged his version and asked as to how Dr. Ghulam Ali Sangi came in the picture of recommendation of the case of the appellant by the Chief Minister and how he had been instrumental in the appointment is mysterious and it smacks about the conduct of appellant since very beginning. Seeking of such recommendation falls under the definition of misconduct on the part of the officials. Rather the appellant has exposed himself before the Tribunal as to how he has entered in the service of Anti-Corruption Department. The entire process of deputation was based on political favouritism. They have also stated that the summary moved in his case was not in accordance with the Rules of Business and the appellant has been by-passing the rules at each step in getting himself recommended for one step promotion. This is rather a case of political favouritism because the appellant had adopted abnormal procedure for his appointment/absorption in the Anti-Corruption Department. After getting his absorption he again malafidely and through influence attempted to get his seniority determined without following the normal procedure. They have also challenged the antidating of his seniority through the Chief Minister. Respondents have pleaded that they had done upper course earlier to the appellant, hence he cannot be given seniority which was earned by them in due process. They have also challenged the vires of applicability of section 24 in his case as the same was based on mala fide and was result of political favorutism and rather a case of corruption and corrupt practice.
9. ' It has, however, been observed that on this point the Department has not committed at all and have simply avoided the issue which speaks about their weakness in not referring to that at all in their written statement.
10. ' The Advocate of the appellant, Mr. Shabbir Ahmed Awan while arguing the case stated that the orders passed by the Chief Minister under section 24 cannot be taken away by any subordinate agency as has been done in the present case. The Notification issued by the Chief Secretary authorising his absorption from the date of his initial appointment as P.S.I. i,e, 15-11-1976 has been simply ignored for the reasons not brought on the record of the Tribunal. If that Notification which is issued by the Chief Secretary with the approval of competent Authority had been adhered to Mr. Sangi would have been placed above the private respondents who had been either recruited or absorbed subsequent to his absorption in the Department. At no stage it has been pointed out that the matter was re-submitted to the Chief Minister for recalling the said orders at any stage.
11. ' Arguing that these orders before the Tribunal is of no consequence as no judgment could be given over and above the valid and legal order of the Chief Minister, who was the rule making and relaxing authority and was competent to pass such orders. These could have been challenged only before the same authority which has apparently not been done in this case by the official or private respondents.
12. ' The Advocate of the appellant has also clearly pointed out that after the approval of the Chief Minister and issuance of notification by the S&GAD in this regard, Chairman of the Anti-Corruption Establishment was not competent to reject his appeal; because it amounts to sitting on the judgment over the Chief Minister, for which a subordinate official was not competent. The said seniority was validly accorded under Rule 10 of the Sindh Civil Servant (Probation, Confirmation and Seniority) Rules and thus he will retain the seniority allowed to him by the competent Authority for which he cited the following cases on the point of locus ponitentiae:
1. PLD 1969 SC p.407.
2. 1997 SCMR p.15.
3. PLD 1997. (sic)
13. ' Besides on the point of Limitation he has cited the following rulings; (a) 1996 SCMR page 856(b)
14. 1995 PLC (C.S.) Page 803 and (c) PLC 1999 Page 1160. It has been stated that the order of rejection passed in this case is non speaking order it refers to the issue of Limitation nor the said has been pointed out as a reason for its dismissal in the rejection order. He, therefore, requested that the appeal may be allowed and the Department may be directed in terms of the prayer to assign him seniority in the cadre of Sub-Inspector and Inspector in the Anti-Corruption Establishment over respondent No,4 in view of Notification dated 5-10-1994 with all the back/consequential benefits.
15. ' Advocate of the private respondents, Mr. Naimatullah Qureshi while arguing the case stated that the Notification dated 5-10-1994 was issued without any notice to the respondents, therefore, it was bad in law and not enforceable. The promotions given to the officers vide Notification dated 30-7- 1995 were on regular basis and, therefore, should have been challenged it there had been any objection to the appellant, which has not been done. Thus under rule 9 of Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules and under section 8 of the Sindh Civil Servants Act the seniority can only be allowed from the date of regular promotion. No claim was made for antidating the promotion under rule 13 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, hence no seniority could be claimed in the light of these facts. Besides the order passed by the Chairman was first order in the appeal and the matter had not attained finality, hence he could not come before the Tribunal. Besides the promotions to subsequent scale were subject to passing of certain departmental examinations and whosoever has passed the departmental examination first, will get promotion over all those who have passed the said examination subsequent to his qualifying. Therefore, he cannot claim any seniority over all officers who have qualified the departmental examination prior to his having passed the same, therefore, the appeal does not consider and same may be rejected.
16. ' His arguments were also adopted by the Assistant Advocate-General who did not add anything more beyond what was in the written statement of the Government.
17. From the foregoing facts, it has been observed that the appellant was allowed seniority on absorption into Anti-Corruption Establishment from the date of his initial induction as P.S.I. In the Police Department i,e, dated 15-11-1976. This fact was notified by the Chief Secretary vide Notification dated 5-10-1994 which clearly lays down that "Mr. Ghulam Sarwar Sangi is allowed seniority in the rank of Sub-Inspector in the Anti-Corruption Establishment, Sindh w,e,f, 15-11-1976", thus it is the order issued by the competent Authority which cannot be taken away by any subordinate agency. Besides, there has been no protest from the Department nor the Private Respondents against this Notification which has attained finality and is not open to assailment at this stage. Thus assigning him any seniority besides the above Notification will be in violation of the orders of the competent Authority and hence unlawful. The plea of the defence that the Notification dated 5-10-1994 was issued without notice to the respondents is absurdity as the competent authority is not supposed to consult the officers to be affected by an order. However, it was for the respondents to have agitated against the said order and challenged it before the appropriate forum, which was not done.
18. ' We have, therefore, come to the conclusion that his appeal was trot rejected on law nor on facts.
19. We, therefore, allow the plea of the appellant and set aside order dated 9-1-1999 passed by respondent No,3 rejecting his representation and further direct the said Authority to implement the orders contained in notification of 5th October, 1994 with all back/consequential benefits as prayed by the appellant. The promotion to subsequent scales will, however, be subject to the rules of passing the Departmental Examinations.
20. ' Given under our hands and the Seal of the Tribunal this 23rd day of May, 2000 at Karachi.