' MUHAMMAD IQBAL KAZI (MEMBER).---These are six identical appeals filed under section 4 of the Sindh Service Tribunals Act, 1973 having common cause of action, viz. Grievance against the seniority position assigned to respondent Nos.5 to 9 by the respondents Nos.1 to 4. The same.
Therefore, having disposed of by this single/common order.
2. Facts of the matter, although common, have different implications over the respective respondents (5 to 9) which may be elucidated as under:-
(i) Appeal No,48 of 1995.
' The appellant states that he was appointed as Junior Clerk on 29-8-1975 in the office of Respondent No,2 and was transferred to the office of respondent No, 4, whereafter, was promoted as Senior Clerk on 1-11-1983. It has been alleged that respondent No,5 was appointed as. Junior Clerk in the office of Respondent Nq.4 on 15-12-1980 and was promoted as Senior Clerk on 1-9-1987, whereafter, a post of Assistant Store-Keeper BS-11 became available to which respondent No,5 was promoted.
2. Appellant claims that since he was appointed as Junior Clerk much earlier than the respondent No,5, he should have been considered for that post. The appellant has also alleged that no seniority list of the office of respondent No,4 was prepared till 1992.
3. Appellant has, therefore, prayed that his seniority as Senior Clerk in the office of Respondent No,4 be restored as against respondent No,5 as per seniority list of the Department upto 1987. Secondly, the then Departmental Promotion Committee being not constituted according to the laid down rules by the Government and decisions made by it be scrapped being void. The matter of seniority be decided on merit by a legitimately constituted Departmental Promotion Committee.
(ii) Appeal No,49 of 1995.
' The appellant Was appointed as Junior Clerk on 8-10-1978 in the Stamp Office, Karachi under the control of respondent No,4 and was promoted as Senior Clerk on 1-9-1987. It is alleged that respondent No,5 was appointed as Junior Clerk on 15-12-1980 in the office of respondent No,4, whereafter, he too was promoted as Senior Clerk on 1-9-1987. The remaining contentions of the appellant are almost identical as in Appeal No,48 of 1995.
(iii) Appeal No,50 of 1995.
' The appellant was appointed as Junior Clerk on 22-2-1981 and was posted in the office of respondent No,4. It is alleged that respondent No,10 was appointed as Junior Clerk in the same office on 25-8-1983. Furthermore, it is alleged that respondent No, 10 was promoted as Senior Clerk on 1-1-1988 but the appellant was given only selection grade on 23-11-1988. A provisional seniority list was circulated in 1992 which revealed the promotion of Respondent No,10 with effect from 1-1- 1988. Appellant has prayed that his seniority may be restored as against Respondent No,10 and the case of his promotion be placed before a competent D.P.C.
(iv) Appeal No,51 of 1995.
' The appellant was appointed as Junior Clerk on 18-5-1982 in the office of respondent No,4. The Respondent No,8 was appointed as Junior Clerk in the same office on 25-8-1983, whereafter, the respondent No,8 was promoted as Senior Clerk on 1-1-1988, whereas, the appellant was given only Selection Grade. The remaining contentions of this appellant are common and identical as alleged in appeal No,50 of 1995.
(v) Appeal No,52 of 1995.
' The appellant was appointed as Stamper on 1-2-1986 in the office of respondent No,4. Appellant contends that respondent No,9 was appointed as Stamper on 1-1-1988 and was promoted as Junior Clerk on 23-11-1988. The Registrar's note, however, envisages that appellant was appointed as Stamper and the Respondent No,9 was appointed as Junior Clerk in 1988 which was not challenged by the appellant. Appellant has now prayed that his seniority as Junior Clerk w,e,f, 1-2- 1986 be restored as the respondent No,9 was appointed as Stamper w,e,f, 1-1-1988.
(vi) Appeal No,53 of 1995.
' The appellant was appointed as Junior Clerk since 1-2-1986 in the office of Respondent No,4. It is alleged that on 18-9-1986, the appellant was reduced in rank as Naib Qasid without any rationale; whereas, the respondent No,8 who was appointed as Naib Qasid on 2-1-1988 was promoted as Junior Clerk on 23-11-1988. The appellant has, therefore, prayed that illegal promotion of Respondent No,8 may be declared void and his seniority be restored w,e,f, 10-12-1987 as Junior Clerk.
3. We have heard at length the arguments made by the learned counsel for appellants as well as the learned A.A.-G. For official respondents and have perused the record. Accordingly, the following points for determination have been construed-- Whether Departmental Promotion Committee which promoted the respondents was a legally constituted committee?
(ii) Have recruitment rules to fill the vacant positions in the Stamp Office been framed?
(iii) Whether promotions made by authority other than the competent Authority so notified could legitimately sustain?
(iv) Whether promotions were made in accordance with the seniority list so prepared and circulated amongst all concerned?
4. After thoughtful consideration, we are of the consensus view that the replies to the above points for determination are in negative for the following reasons:-- (POINT NO.1)
' The learned counsel for the appellants have produced before us Notification No,12-235-73-Estt.II dated 18-11-1974 which says that in pursuance of the provision contained in rule 5 of the Sindh Civil Servants (Appointment. Promotion and Transfer) Rules, 1973 and in consultation with the Services and General Administration Department, the following Departmental Promotion Committees and Departmental Selection Committees are constituted in respect of the Board of Revenue, Sindh, and other offices under its administrative control:-- ' Departmental Promotion Committee for Grades-11 to 15 in District and other offices:-
(a) Commissioner of the Division--Chairman.
(b) Deputy Commissioner--Member.
(c) Additional Commissioner of the Division--Member.
' From the perusal of record available, it transpires that promotion to the post of Assistant Store Keeper for Strong Room, Double Lock. Stamp Office, Karachi BS-11 was notified by the then Deputy Commissioner BS-18, Karachi South who also chaired the Departmental Promotion Committee and recommended for out of turn promotion of Respondent No,5. Annexure-A.7 on record is a Letter No,DCS/Estt/7385/92; dated 7-11-1992 addressed to the then Commissioner, Karachi by the then Deputy Commissioner. South Karachi (the successor of the, former Deputy Commissioner, South, Karachi, who had chaired the Departmental Promotion Committee and notified the promotion of Respondent No,5). The aforesaid letter very clearly purports to state that "even for the sake of arguments, it is considered that the post of Assistant Store-Keeper is cadre post, Mr. Minhaj Ahmed Siddiqui (Respondent No,5) should not have been promoted as he was Junior, since, the proceedings of the Departmental Promotion Committee held on 18-10-1988 were ab initio wrong and the minutes of the Departmental Promotion Committee approved by the then Deputy Commissioner being as BS-I8 Officer and not appointing authority for BS-11, the promotion of Mr. Minhaj Ahmed Siddiqui (respondent No,5) is void in the eyes of law.
' It is, therefore, recommended that he should be reverted to his place of seniority in the rank of Senior Clerk and shall be considered for promotion on his turn".
6. Accordingly. In view of the material facts elucidated in the foregoing, the Departmental Promotion Committee, chaired by the Deputy Commissioner who was an BS-18 officer is in glaring contradiction with the notification issued by the Board of Revenue, as referred in the proceeding paras., hence, has to be held null and void ab initio.
(POINTS NOS. II AND III)
' Neither recruitment rules seems to have been framed for filling up the posts in the office of respondent No,4 nor even a seniority list of Junior Clerks was prepared at the time of promotion. A glaring element of haste, undue favouritism and use of excessive authority is manifest from the action so contemplated by the respondent No,3 (the then Deputy Commissioner, Karachi South).
Thus, the act is not only mala fide but miserably bad in the eyes of law, hence, cannot legitimately sustain.
(POINTS NO. IV)
' In their written statement, the respondents Nos.1 to 4, have admitted that in 1988-89, one post of Assistant Store-Keeper was sanctioned for the Strong Room in Stamp Office. Being newly-created ex-cadre post, recruitment rules were not framed, therefore, appointment was purely made on selection basis from amongst Senior Clerks working in the Stamp Office. A meeting of Departmental Promotion Committee consisting of the Deputy Commissioner, South, Karachi.
Additional Deputy Commissioner, South Karachi and Assistant Superintendent of Stamps, Karachi was held on 18-10-1988, wherein, all the Senior Clerks working in the Stamp Office were considered for appointment as Store Keeper (BS-11) and the respondent No,5 was selected by the Departmental Promotion Committee on out of turn basis.
7. It has, therefore, become an admitted position that the Departmental Promotion Committee was presided for Selection/Promotion of a BS-11 official by the Deputy Commissioner, South, Karachi for which he was not competent. Besides, in the absence of rules and seniority list, the entire process of Selection/Promotion of Respondent No,5 in BS-11 is ab initio null and void. Such an action is not only bad in law but seems to have been comtemplated malafidely causing, thereby, wrongful gain to respondent No,5 and loss to other aspirants.
8. Besides. According to the policy of promotion, it was mandatory. On the part of competent Authority to have prepared seniority list of all the appellants appointed as Junior Clerks on respective dates. Such list should have been circulated to all concerned and objections. If any, need to have been appropriately addressed. Thereafter, promotions as Seniors Clerks should have been held on the basis of seniority-cum-fitness principle. Finally, promotion in BPS-11 should have taken place by a legally constituted Departmental Promotion Committee after finalizing the Seniority list of Senior Clerks in the prescribed manner.
9. We regret to observe that such important codal formalities have not been resorted by the concerned authority. Element of rule of thumb has been blindly adhered to against all canons of legitimacy and prescribed rules as well as procedure.
10. 'Accordingly, we are of the consensus and considered view to allow all the aforesaid appeals and set aside the impugned orders. Consequently, we remand all the six appeals to respondent No,1 for suitable adjudication in terms of the following parameters:-
(a) Preparation of seniority list of Junior Clerks and after due process according to law, its finalization.
(b) On the basis of (a) promotion to the posts of Senior Clerks by competent forum, its finalization according to rules and preparation of seniority list of this category.
(c) Framing the rules for available posts(s) in the office of respondent No,4.
(d) Constitution of a legal Departmental Promotion/Selection Committee and filling-up the post(s) as determined in the rules so framed.
11. Although, the aforesaid exercise apparently seems a lengthy process but in order to meet the ends of justice, we are not inclined to let injudicious acts go unnoticed. The Respondent No,1 is also directed to ensure the supervision of the aforesaid, directions so that the principle of justice, equity and fairplay is manifestly upheld.
' Given under our hands and seal of this Tribunal on this 15th day of February 2002 at Karachi.