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Appeal No. 36 of 1975, decided on 9th September 1975,

‑‑ Rr. 9(37) & (47)‑Officiating appointment‑Civil servant promoted to officiate in higher post against clear vacancy‑Cannot be treated as on "temporary promotion"‑Such officiating service constable towards probationary period Revenue Department official promoted to officiate against clear vacancy as Assistant‑Such officiating service held, countable towards probationary period and such period having expired he was deemed to have been confirmed‑Reversion of such official subsequently on plea that his promotion was merely on temporary basis held, not sustainable Revenue Department District Ministerial Service Rules, r. 8(1).

‑The present Appeal‑arises out of an order passed by the Revenue Officer, Kotri Barrage, Hyderabad whereby the appellant was ordered to be reverted to the post of Senior Clerk from the post of Assistant. The order is dated 7‑9‑1974 (Annexure A'). The appellant had filed departmental appeal before the Commissioner, Hyderabad Division which was dismissed on 8‑2‑1975. Both these orders have been impugned in the present appeal.

The case of the appellant is that he joined as a Junior Clerk in the Revenue Department on 19‑10‑1959. By turn he was promoted to the pest of Assistant vide an order, dated 2‑6‑1971. It is contended by the appellant that this order of promotion clearly indicated that the appellant was promoted to officiate as Assistant against the vacancy caused by Mr. Poonamgir who had been transferred to the office of the Director, Ghulam Muhammad Barrage Project, Hyderabad. On the basis of this order the appellant has contended that his promotion was neither temporary nor it was a stop‑gap arrangement but it was a promotion against a clear vacancy.

The appellant has also contended that respondents 3 and 4 were senior to him at all times but at the time of his present promotion. he had superseded them on the basis of merit‑cum‑seniority. Moreover, respondent No. 4 had foregone his promotion by his own request and, therefore, he bad lost seniority against the appellant. He further contends that the case of respondent No. 3 was also considered along with his case but the former was rejected and he was promoted on merits. He therefore, claims seniority over both the respondents on the well known principle of continuous officiating in the cadre.

The appellant has in addition contended that he had completed maximum period of probation of two years on 2‑6‑1973 and therefore he should be deemed to be confirmed as Assistant and consequently he cannot be reverted.

The persons against whom the appellant has claimed seniority i. e. respondents 3 and 4 have not contested the appeal and have remained absent despite valid service. Therefore, it will be deemed that they have accepted the pleas taken by the appellant against them. However, the respondents 1 and 2 have contested the appeal and filed the common written statement. The Assistant Advocate‑General has strenuously contested the matter.

The case of respondents 1 and 2 is that the promotion of the appellant was ordered by the Revenue Officer Kotri Barrage on the basis of illegal and improper seniority list which was prepared in violation of the rules in force at that time. Under the orders of the Director, Ghulam Muhammad Barrage Project, the same seniority list was set aside in 1969 and a fresh list was ordered to be prepared. It was prepared on 8‑2‑1972 and it was found that respondents 3 and 4 were senior to the appellant. Consequently the order of reversion of the appellant was passed and respondents 3 and 4 were promoted.

In paragraph 4 of the written statement, respondents 1 and 2 have admitted that the appellant was promoted on the basis of seniority‑cum‑fitness but it is alleged that the promotion was temporary.

We have perused the order of promotion of the appellant dated 2‑6‑1971 (Annexure 'C') and we find that there is no mention of the promotion of the appellant being temporary. On the contrary, the promotion order shows that the appellant was "to officiate" as Assistant. It also shows that the appellant was promoted in a clear vacancy caused by the transfer of one Mr. Poonamgir. The Advocate of the appellant has referred us to the definition of the word "officiate" laid down in rules 9 (37 of Sind Civil Service Rules Volume‑1, which lays down that a Government servant officiates in a post when be performs duties of the post to which another person holds a lien. The competent authority may if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien. The last part of the above rule clearly covers the case of the appellant because it is not disputed that the vacancy caused by the transfer Of Mr. Poonamgir was a clear Vacancy against which on one was holding a lien. The appellant was promoted to officiate against this post. Therefore, it was not a temporary promotion in any case.

The counsel for the appellant has contended that since the promotion of the appellant was not temporary, and it was on the basis of seniority‑cum- fitness basis, the case of the appellant would be covered by Rule 8 of the Revenue Department District Ministerial Service Rules. The explanation to rule 8 (1) clearly lays down that officiating service shall be counted towards probation. Moreover, rule 9 (47) of Sind Civil Service Rules, further) lays down that if a person is employed against a substantive vacancy, he would fall within the definition of the word "probationer". Thus for all intents and purposes the order dated 2‑6‑1971, promoting the appellant as "officiating" Assistant, brought the appellant within the ambit of the rule A 8 of the said Rules. This rule further lays down that if a Government Servant completes maximum period of probation, he shall be deemed to be confirmed. Maximum period of probation has been determined by this rule as two years which period the appellant completed on 2‑6‑1973 and therefore, it is rightly contended by the appellant that with effect from 2‑6‑73, he became a confirmed Assistant.

Regarding the contention of the Asstt. Advocate‑General that the original promotion of the appellant was made on the basis of an illegal and erroneous seniority list, we put a pertinent question to him as to what was the position of the appellant in the old seniority list and the new seniority list as compared to respondents 3 and 4. He had to concede that in both the lists the position of the appellant was the same and the respondents 3 and 4 were shown as seniors to the appellant in both the lists. This being the position of the persons, t. e. the appellant and the respondents 3 and 4 in the seniority lists, the contention of the respondents that the earlier promotion of the appellant was on the basis of wrong seniority list falls flat. Together with the admission of respondents 1 and 2 that the promotion of the appellant was on the basis of seniority‑cum‑merit, there can be no other inference but that the appellant had superseded respondents 3 and 4 in 1971. It is also admitted position that the respondents 3 and 4 did not file any appeal against the promotion awarded to the appellant and, therefore, there was absolutely no reason is 1974 to upset the promotion awarded to the appellant in 1971 and order his reversion.

The order, dated 17‑9‑1974, passed by the Revenue Officer Kotri Barrage does not even mention any grounds on which the appellant was ordered to be reverted and on that score alone this order is not sustainable in law. However, the order dated 8‑2‑1975 passed by the Commissioner, Hyderabad Division, Hyderabad dismissing the appeal of the appellant is on the same reasoning and grounds as agitated by the learned. A. A.‑G. before us and speaks of nothing but revision of seniority list. We have already held that the seniority list w s of no consideration in the matter when the promotion of the appellant in 971 was ordered on th‑‑ basis of seniority‑cum‑fitness.

The promotion of the appellant being of officiating nature against a clear vacancy, the appellant is fully entitled to the benefits of the rules 6 mentioned above and he will be deemed to be confirmed with effect from 2‑6‑1973 as Assistant. The order of his reversion is clearly not sustainable in law.

We accordingly allow the appeal with no order for costs.

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