1. ' S. NASIM HAIDER (SENIOR MEMBER).---(This appeal was admitted on 26-12-1996 subject to all just exceptions, including the point of limitation to be considered at the time of final hearing. All the private respondents Nos.4 to 23 were got served through S&GAD. Respondents Nos.4, 6, 14, 15 and 17 did appear before Sindh Service Tribunal on 3-12-1997. Respondent No,7's services were reported to have been terminated on 7-1-1998 by S.O. (Litigation) S&GAD. However, only respondents Nos.4 and 6 filed their written statement on 10-3-1998. Thereafter till the final hearing of this appeal on 19-11- 1998, neither respondents Nos.4 or 6 nor their Advocate were present. The appeal was accordingly heard and reserved for judgment on 19-11-1998. On 30-11-1998 Mr, Muhammad Nawaz Shaikh (Advocate for respondent No,6) moved an application for permission to argue the case or alterantly, his written arguments may he accepted; as neither he nor respondent No 6 could attend Sindh Service Tribunal on the final hearing due to unavoidable circumstances'. Such application is rather unheard off and to say the least).
2. ' The facts of this appeal, according to the appellant are that he was working as Demonstrator L.M.0 Jamshoro and through proper channels, applied and appeared in combined competitive examination held by the Sindh Public Service Commission, in the March/April, 1998. After written test/viva he was placed at Serial No,5, of the merit list announced by the Commission on 20th April, 1998. On 24-4-1998 his name was recommended for appointment as Section Officer (BSP-17) at Serial No,5 vide its letter quoted above and he was appointed as such vide S&GAD Notification, dated 7th September, 1988. (Annexures A,B,C of his appeal). Being already in Government service, he applied through the Principal, L.M.C. Jamshoro on 8th September for issuance of a relieving order through A.D. Viz Health Department. According to him, he was not relieved by the competent Authority. Since he failed to join his duties, not being relieved, his appointment order was cancelled on 4th January, 1998. On his protest/representation, he was re-appointed (afresh) as Section Officer BSP-17, on 31-7-1989. Withdrawing the earlier orders but on the same terms and conditions as contained in his 1st appointment order as S.O. It was also ordered that' he will get seniority in the cadre of S.Os. From the date of his assumption'. He allegedly, continued to protest/agitate the matter as evident from application dated 8-1-1995, in continuation of his previous applications. The cause of action accrued to him again, on 8th February, 1995, when S&GAD notified the impugned seniority list bearing No,SOX(S&SAD)-3-9/94, wherein he was placed at Serial No,96. His request was turned down vide latter dated 18th July, 1995 by S&GAD and thereafter he filed service appeal dated 17-8-1995 to the Chief Minister---his appointing authority by virtue of rule 4 of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rule, 1974. Having received no reply, thereof and after awaiting for the statutory period, he filed this appeal before Sindh Tribunal on 14-12-1995 (within 118 days) which is in time.
3. ' The counsel for the appellant contended that clause 4 of his appointment order dated 7th September, 1988 to report for duty within 15 days to the Department (concerned) under intimation to S&GAD was not applicable to him because he was already in Government service (L.M.0 Jamshoro) and as per standing rules/decorum he could not join his new assignment without being properly relieved by his Controlling Office/A.D. Nor could he correspond directly with S&GAD being an employee of Health Department as per prescribed channels for communication. As such, he could do nothing more than to ask his Controlling Officer, viz the Principal L.M.0 Jamshoro to relieve him properly, issue his Last Pay Certificate (LPC) etc. He applied immediately for such relieving order vide application dated 8-9-1988 which was duly received on that very date. However, due to non-relieving he could not join his new assignment/duty as S.O(FD) on his own otherwise it could amount to a gross misconduct/make him liable for disciplinary action under E&D Rules concerned.
4. It is an accepted principle of law that one cannot be punished for the act/error or omission of another person. However, inviolation of the principal of natural justice, fairplay, equity and the said basic principle of law, appellant's appointment as S.O. Was cancelled on 8-1-1989. The injustice done to the appellant was partly rectified by his reappointment on 31-7-1989, on the same terms and conditions as contained in his earlier appointment order but his seniority was ordered from the date of his assumption (as S.O.) which is a grave irregularity/illegality because of the provisions of rule 11 of the Seniority Rules. He asserted that in case of Public Service Commission Selectees, of one batch , their inter se seniority is to be determined exclusively on the basis of 'Merit Assigned by the Commission' irrespective of their date, of joining. In support of his contention, he placed reliance on: ' PLD 1994 SC page 507 (Seniority has nothing to do with the date of joining)
5. ' 1995 PLC (C.S.) page 950.
6. ' 1996 PLC (C.S) page 1112 (appointees of one batch retain seniority in order of merit irrespective of date of joining).
7. ' He finally submitted that the Federal Service Tribunal and the Hon'ble Supreme Court of Pakistan held same view on this point of law. He said time bar plea was not sufficient it needed counter-plea in view of 1995 SCMR page 1023.
8. ' The A.A.-G. Generally confined himself to the written statement of the respondents. It was not denied that the appellant was a S.P.S.C. Selectee. He, however, argued that since, the appellant failed to join his new cadre of S.O. Within stipulated time of 15 days, his appointment order was rightly cancelled. He further argued that in correspondence with S&GAD, he had not taken the plea that he was not relieved by the Principal L.M.C./Health Department but that 'his father was sick' vide his two applications dated 29-4-1989 and 4-7-1989. He also asserted that the citations quoted are not 'prima facie' applicable by the appellant's case as per their gist read out by the counsel for the appellant. He was of the opinion that the appellant was not entitled to any relief and this appeals may be dismissed.
9. ' We have gone through the arguments of both the sides carefully as well as the written arguments of the Advocate for the, respondent No,6, submitted 12 days after the final hearing/judgment had already been reserved (both days inclusive), citations quoted perused the documents submitted.
10. ' It is worthwhile to note that out of 20 private respondents (S.Nos.4 to 23 both inclusive), only respondents Nos.4 and 6 have filed their written statements. Even these two and their Advocate failed to appear before us on the final hearing without any intimation or plausible explanation, which could easily lead to the only presumption that they had nothing to say in the matter. The written arguments submitted on behalf of respondent No,6, are afterthought only without proper explanation of delay, by any cogent/plausible explanation. The only ground taken is 'due to unavoidable circumstances' which is too vague. Such acts are rather odd and undesirable after judgment had already been reserved on 19th November, 1998.
11. ' Without prejudice to such assumption or presumption, we are of the considered view that the provisions of Sindh Civil Servants Act, 1973 and Sindh Civil Servant (Probation, Confirmation & Seniority) Rules, 1975, relevant laws reproduced below are quite clear on the subject of seniority.
12. Seniority in the said Act is dealt with in section 8 reproduced below:-- "8(1)For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or grade, whether serving in the same department or office or not as may be prescribed.
(3) Seniority on initial appointment to a service grade or post shall be determined as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment in that grade: ' Provided that civil servants who are selected in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
13. ' What is most significant in Proviso to this section is the civil servants, if selected in one batch even on their promotion shall retain inter se seniority as in the lower grade."
14. ' The provisions relating to the seniority are contained in PART-IIISeniority of the said Seniority Rules, from rule 9 to rule 13.
15. ' Under rule 9(2) the seniority list is required to be framed in the month of January every year. The use of the word 'shall' in the said sub-rule has a mandatory effect. (Unfortunately, due to known red tapeism/lethargy of the concerned departmental officials, this provision of law is not complied with in letter and spirit causing grave injustices, occasionally. The spirit of law behind the words in January, every year is that it should be a regular exercise, which will ensure removal of mistakes of fact or law through objection, judicious hearings, decisions thereof so that it is 'free from error'.
16. When seniority list, are not drawn annually, as required, it result in undue promotions, departmental representations and service appeals, not only delaying the due rights and the process of law but encumbering departmental appellate authority as well as Service Tribunal, unnecessarily. This aspect needs to be taken care of in right earnest. The counsel for the appellant pointed out that only two seniority list of S.Os., have been circulated so far from 1988 to 1998 i,e, in 10 years. Naturally, this omission could result in, precipitating or perpetuating the grievance of aggrieved persons, resulting in hardships to them monetarily and otherwise too.
17. ' In rule 11 (a) of Seniority Rules, it is clearly laid down that 'in case of persons appointed' but initial recruitment, in order of merit assigned by the selection authority'. In the case of ten (10) S.Os.
18. Selected by S.P.S.C. Through competitive examination held in March/April, 1988, their inter se seniority shall remain as determed in their order of merit, determined at the time of their selections, irrespective of their dates of joining. Counting their seniority from the dates of their joining, does not appeal to reason and logic. Their appointment orders were issued from S&GAD located at Karachi.
19. Their posting orders are despatched through registered post. They are obviously residents of various District. Their dates of receipts may vary from place to place. In the case of persons, already in Government service, their joining could be further delayed till they are actually relieved by their appointing authorities. In case of the appellant who was a Demonstrator at L.M.C.
20. Jamshoro, his appointing authority was Secretary Health (with the approval of the Minister) and orders have to come from Health Department through proper channel/his immediate controlling authority being the Principal L.M.C. Even, after receipt of the orders from Health Department, his actual relieving was subject to issuance of an L.P.C., handing over charge to some one notified to do so etc. Lastly, the words "from the date of joining duties" are not available in section 8 of the said Act or rules 9 to 13 of the said Rules. It is an accepted principle of Interpretation of statutes that one has to confine himself to the actual use of words by the Legislature/law framing authority and no addition can be made therein of 'ones' own words. This is the reason why the Superior Courts/Tribunals are of the view that use of such words is not in accordance with the laid down laws/rules on the subject of seniority. This being the legal position, in our considered view, the words "He will get his seniority in the cadre of Section Officer, from the date of his assumption" in the last line of para. 1 of Notification No,SOX(S&GAD)3-94/88 dated 31-7-1989 have no legal basis or rationale and have to be deleted, being not provided under relevant laws/rules on the subject of seniority of commission selectees and in whose case the only criteria prescribed is the order of merit as assigned by the Commission. This seniority on subsequent promotion even if delayed, is protected under the provisions of rules 13 of the said seniority rules, (unless properly superseded, in accordance with law).
21. ' We are of the firm view that in case of the appellant the delay in his late joining to post of S.O. Was not his own --- there being three applications from him. One to Principal L.M.C. Who did not relieve him in time and two applications from him as pointed out by the Assistant Advocate-General from his record (on account of illness of his father). If such delays were not properly accounted for S&GAD would not have withdrawn its earlier notification dated 4-1-1989, cancelling his appointment as Section Officer and that too on the previous terms and conditions.
22. ' In view of what has been stated above, we are left with no other option but to delete the words "He will get seniority in the cadre of Section Officers from the date of his assumption" in Notification No,SOX(S&GAD)3-94/88, dated 31st July, 1989. Consequently in the seniority list the appellant would be placed below his immediate senior (Mr. Farooq Azam Memon Serial No,4 in merit list of Sindh Public Service Commission Serial No,75 in the impugned seniority list of Section Officers as stood on 12-12-1994 and above, Mr. Muhammad Nawaz Shaikh Serial No,6 in the merit list of Sindh Public Service Commission and at Serial No,76 in the said impugned seniority list by insertion of Serial No,75-A).
23. ' There are no orders as to the costs.
24. ' Announced in open Court this 18th day of December, 1998 at Karachi. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.