' JUSTICE (RETD.) ABDUL GHANI SHAIKH, CHAIRMAN.---Appellant Syed Aftab Haider, Executive Engineer, Directorate of Engineering Works, Education Department Government of Sindh, has preferred this appeal for determination of his seniority.
2. The case of the appellant, briefly stated, is that he joined Government service as Assistant Engineer (B-17) in Communication and Works Department on 22-7-1985. His services were requisitioned by the Minister for Education from the Minister, Communication and Works Department for placing at the disposal of Education Engineering Works, Education Department. On acceptance of such requisition, the appellant joined Education Department and was posted as Assistant Engineer (B-17) in the Directorate of Engineering Works, Education Works Sub-Division, South-I, Karachi vide notification dated 23-5-1991. The appellant and many others vide letter dated 11-11-1991 of Education Department were asked to submit their written and irrevocable option for their permanent absorption in Education Department. In response thereto, the appellant opted for his permanent absorption in the Directorate of Engineering Works, provided his regular service rendered under Communication and Works Department is counted towards seniority in terms of rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 His option was accepted and respondent No,3, with the approval of Competent Authority, vide notification dated 30-12-1991 appointed the appellant by transfer as Assistant Engineer (B-17) in the Directorate of Engineering Works and was also allowed the benefit of rule 12(a) (supra). Thereafter, Provisional seniority list of Assistant Engineers was prepared and circulated by respondent No,3 wherein the appellant's name was shown at Serial No,2 with a date of entry in the Government service as 22-7- 1985 in accordance with the provision of rule 12(a) (supra) and in consonance with the Notification dated 30-12-1991. Then on the recommendation of the Departmental Promotion Committee and with the approval of the Competent Authority, the appellant was promoted as Executive Engineer (B-18) vide Notification dated 2-5-1992. He was also allowed move-over to BPS-19 w,e,f, 1-12-1993 vide another Notification dated 24-10-1995. In the Provisional Seniority List of Executive Engineers (B-18) circulated by respondent No,3 vide memo. Dated 23-1-1996, the appellant's name was also shown at Serial No,1 . However, in a subsequent seniority list circulated by respondent No,3 vide memo. Dated 21-8-1996, the appellant's name was relegated and was shown at Serial No,16, on a plea that "at the time of his transfer from C & W, the approval of Competent Authority i,e, Chief Minister, Sindh, invoking the power of section 24 was not solicited". Aggrieved by the aforesaid relegation in his seniority as Executive Engineer (B-18), the appellant preferred departmental appeal to the Chief Secretary, Sindh which was rejected and such rejection order was communicated to the appellant by respondent No,3 vide letter dated 14-12-1998. Hence, this appeal.
3. Respondent No,3 filed written statement which is adopted by respondents Nos.1 and 2, respondents Nos.5, 6, 7, 9, 10, 14, 15 and 17 have tiled separate written statements which is adopted by respondents Nos.8, 11 and 16, while respondents Nos.4 and 13 so also respondent No,12 failed to file written statements though served. Respondent No,12 was served by way of publication.
4. Respondents have stated that appellant through political influence managed to absorb him permanently in the Education Department, his transfer and subsequent permanent absorption was without adopting the proper and legal procedure, retrospective absorption is illegal and not warranted by law, the approval as required under section 24 of Sindh Civil Servants Act, 1973 was not obtained from the competent Authority i,e, Chief Minister at the time of transfer, of appellant from C & W to Education Department and that, the appellant was relegated in the seniority list after considering the objections raised by appellant's colleagues of the provisional seniority list circulated by the Education Department.
5. Mr. Manzoor Ali. Khan, learned counsel for the appellant has contended that appellant's relegation in the seniority list is illegal, mala tide and nullity in the eyes of law as prior to that neither any show-cause notice was given nor any other opportunity was afforded to him. Further, he submitted that appellant was inducted in Education Department by way of transfer on the requisition of Education Minister in April, 1991, he opted for his permanent absorption in Education Department with a clear condition that the regular service earlier rendered by him in C & W Department is counted towards seniority in terms of rule 12(a) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which condition with the approval of the Competent Authority was accepted and the appellant was permanently absorbed in the Education Department vide Notification dated 30-12-1991, thus a vested and valuable right was accrued to the appellant which by no stretch of imagination coupled with the principle of locus poenitentiae can be snatched from him after a period of about five years when the order has been acted upon.
He in support of his contention placed reliance on the case of Muhammad Himayatullah v.
Government of Pakistan, PLD 1969 SC 409.
6. Mr. Naraindas C. Motiani, learned counsel appearing on behalf of private Respondents has submitted that the very transfer of appellant from C & W Department to Education Department was illegal, mala fide, ab initio null and void. He argued that Minister of Education was not competent to absorb an employee of Communication and Works Department in his Department without first obtaining approval from the Competent Authority i,e, Chief Minister of the Province. He next argued that in view of an authoritative and celebrated judgment delivered by the apex Court in the case of Ahsanullah A. Memon v. Government of Sindh and 3 others 1993 SCM R 982, order of retrospective seniority cannot be passed to impair any of the statutory rights vested in other civil servants.
7. Ch. Muhammad lqbal, learned Assistant Advocate-General has adopted the arguments advanced by Mr. Motiani. He, however, added that the appellant by exercising political influence managed to get his service transferred from C & W Department to Education Department in order to get rapid promotions, therefore, it cannot be said that the appellant was appointed other than on his own request, as such under the law the appellant is not entitled to get the benefit of rule 12(a). He supported the relegation of the appellant to the lowest position in the seniority list.
8. We have anxiously considered the above submissions and have minutely perused the case papers as well the case law preferred to by the learned counsel for the parties.
9. The only and most crucial point which require determination in the instant appeal is:-- "Whether appellant was rightly granted benefit of rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975."
10. Rule 12 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred to as "Rules of 1975"), provides that in case of appointment by transfer not on the request of appointee, seniority shall be determined after giving him benefit of regular service in other post held by him before such transfer. If appointment by transfer is on the request of appointee, he shall rank junior to all other persons appointed before him on the regular basis.,
11. There is no denial of the fact that Rules of 1975 are applicable to Civil Servants of Sindh Province.
The definition of "civil servant" is given in clause (b) of section 2 of the Sindh Civil Servant Act, 1973, which reads as under:-- "(b) 'civil servant' means a person who is a member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, but does not include---
(i) a person who is on deputation to the Province from the Federation or any other Province or Authority; or
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contigencies; or
(iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)."
12. The above-quoted definition of "Civil Servant" indicates that a person who is member of a civil service of the Province or holds a civil post in connection with the affairs of the Province, is a civil servant, but a person who is on deputation to the Province 'from the Federation or any other'
Province or authority is not a civil servant for the purpose of the Act.
13. Likewise, the definition of the term "ad hoc appointment" is given in clause (a) of section 2 of the Act, which provides that it means that appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending the recruitment in accordance with such method.
14. Admittedly, the appellant after being relieved from Communication and Works Department, joined the Education Department as a "deputationist" and till the time he was absorbed- permanently in the Education Department through the notification dated 30-12-1991, he did not enjoy the status of a civil servant as he was not covered by the definition of "civil servant" defined by above clause (b) of section 2 of the Act being a deputationist and, therefore, till then, rule 12(a) , of Rules, 1975 could not have been pressed into service as it refers to a civil servant. The Notification dated 30-12-1991 whereby the appellant was appointed by transfer rather absorbed permanently as Assistant. Engineer in the Directorate of Engineering Works Education Department and simultaneously was allowed benefit of rule 12(a) of Rules, 1975, is thus not warranted by law. ##TE#
15. It is pertinent to observe here that rule 12(a) can be pressed into service only when the appointment by transfer was made other than the request of appointee. The circumstances of the instant case leads us to the conclusion that the appointment of appellant by transfer in the Education Department was the result of political influence. He was appointed on a direct letter of Minister for Education written to the Minister for Communication and Works Department and the later immediately relieved the appellant to join his new assignment. In March, 1991 the alleged requisition was made, in April, 1991 the appellant was relieved, in November, 1991 the appellant was asked to submit his option for permanent absorption in Education Department, which the appellant exercised subject to, benefit of rule 12(a), which condition was accepted vide Notification dated 30- 12-1991 and within next two months a meeting of Departmental Promotion Committee was convened to consider the appellant and one another, they both were cleared and their notification was issued in April, 1992 which was modified in May, 1992 as certain conditions contained in the Notification of April, 1992 did not suit the appellant. These all rapid actions are nothing short of political influence and favouritism. In these circumstances, it is clear that appellants absorption in the Education Department was initiated at the request of the appellant.
16. As stated in earlier paras. The very notification dated 30-12-1991 allowing benefit of rule 12(a) to the appellant is not legal as the appellant by that time not acquired the status of "civil servant" as being deputationist and ad hoc appointee. Reference is invited to the case of Ahsanullah A.
Memon v. Government of Sindh and others, 1992 SCMR 982.
17. Admittedly, the Chief Minister being the Executive Chief of the Province, his concurrence before absorbing an employee of one Department to another is a must but in the instant case, the Chief Minister was not even informed about the said absorption what to talk about soliciting his approval.
18. So far applicability of principle of locus poenitentiae is concerned, since the appellant got him absorbed through back door on account of the influence of the public representatives contrary to the Rules and Regulations, therefore, principle of locus poenitentiae is not attracted in the instant case as per principle laid down by the Honourable Supreme Court in Jalal. Din's case, PLD 1992 SC 207..
19. As regards issuance of show-cause notice before disturbing the seniority assigned. To the appellant we may observe here that at the time of allowing benefit of rule 12(a) to the appellant, none of the private respondents who were already working in Education Department, were informed and were taken into confidence while disturbing the valuable rights viz seniority position already, assigned to them. Moreso, when the name of appellant in the provisional seniority list was placed at the top after allowing benefit of rule 12(a) the private respondents immediately submitted their respective objections of which the appellant had full knowledge. In these circumstances, there was no need of issuance of separate show-cause notice. It is well-known principle i,e, he who seeks equity must come with clean hands.
' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed, with no order as to costs.
' Announced in open Court.
' Given under our hands and the Seal of this Tribunal this 15th day of February, 2002.