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Appeal No. 39 of 1982, decided on 21st March, 1983.

‑‑R. 5 (a) and (b) read with Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, r. 13‑Seniority‑ Determining factor‑Date of regular appointment‑Quota for direct recruitment‑Not to be mixed up with question of determining seniority‑Superintendents promoted as Section Officers even against 50% direct recruitment quota for want of availability of direct recruits‑Not to be reckoned junior to direct recruit who might have been appointed subsequent to their appointment‑Some Superinten dents appointed on ad hoc basis‑Subsequently some other Super intendents appointed initially on temporary basis against 50% direct recruitment quota subject to liability of reversion on availability of direct recruits‑Direct recruits becoming available thereafter and appointed but those promoted on ad hoc basis and on temporary basis also continued because of availability of vacancies‑Those promoted on temporary basis regularised but those promoted on ad hoc basis though senior in lower grade as Superintendent left out Such left out ad hoc appointees, held, would retain their seniority over their junior Superintendents by virtue of r. 13 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 Seniority, held, reckons from date of appointment to a grade and it cannot be post‑dated but can be ante‑dated by application of said r. 13‑Those appointed by direct recruitment subsequent to those promoted earlier, held, would stand junior to them with reference to dates of their appointment and seniority to be determined under rr. 10 & 11 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975.

Khushi Muhammad and others v. General Manager, Pakistan Western Railway P L D 1970 S C 203 rel.

Hussain Adil Khatri for Appellant.

Hassan Akhtar, A.A.‑G. for Respondents Nos. 1 and 2.

Abdullah Chandio for Respondent No. 6.

Salahuddin for Respondents Nos. 10, 11 and 12.

Nemo for the Remaining Respondents.

Date of bearing: 16th March, 1983.

.‑By this appeal under section 4 of the Sind Service Tribunals Act, 1973, the appellant, as Section Officer in the Sind Secretariat, has sought a declaration that his seniority may be determined from the date of his promotion as Section Officer from 27‑9‑1975 which, according to him was a regular promotion and his name may accordingly be placed in the seniority list according to the date of the above regular appointment. The appellant has joined Section Officers shown at serial Nos. 3 to 76 as respondents.

The facts in brief are, that the appellant joined the Secretariat on 6‑11‑1954 as Senior Scale Stenographer. On 2‑5‑1974 he was promoted as Superintendent. Thereafter, under Government of Sind, S&GAD Notifica tion dated 27th September, 1975 in consultation with the Departmental Promotion Committee No. 1, the appellant was promoted as Section Officer alongwith 11 others, though, this promotion was mentioned as temporary' and the incumbents were made liable to revert on the availability of direct recruit.

Under the same notification Part 2, 4 Section Officers were appointed on regular basis on completion of training. These four Section Officers, one of whom is said to have resigned, were appointed by initial recruitment directly by the Government. Their cases were later reviewed under M. L. O. 55 and their appointments were found to be in order. Meanwhile certain direct recruits selected by the Public Service Commission also became available and they were appointed on 27‑9‑1975, 21‑2‑1976 and 3‑2‑1977. But the Section Officers already appointed on promotion were not affected, as there were sufficient number of vacancies.

Lastly, by Notification No. SOX(S&GAD)3‑237/77, dated 17th April, 1978 Section Officers promoted on ad hoc basis were promoted on regular basis with the approval of the Departmental Promotion Committee, while some others were placed on one year's probation. Some more Section Officers were promoted in absentia while under para. 4, 19 more Superin tendents were promoted as Section Officers on regular basis. Under Part 6 of this Notification the question of in ter se seniority of the Section Officers was clarified in the following terms :‑

"All the above‑mentioned Section Officers will retain their inter se seniority in the cadre of Superintendent including those who were already promoted as Section Officers on regular basis under the departments Notification No. SOX(S&GAD)‑1‑9173 dated 27th September, 1975 in accordance with the provisions of rule 13 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975."

The overall position, therefore, is that there are different categories of Section Officers promoted or appointed on different dates. These categories are as under :‑‑

(1) Section Officers promoted on temporary basis.

(2) Section Officers appointed by initial recruitment directly by Government on probation.

(3) Section Officers promoted on ad hoc basis from the post of Office Superintendents.

(4) Section Officers appointed by initial recruitment on selection by the Public Service Commission.

Ordinarily, seniority of a civil servant will be reckoned from the date of his regular appointment in a particular cadre, but in the case of these categories of Section Officers, the disputes have arisen on the question of regularisation of appointments. Some of the Section Officers promoted on ad hoc basis were not considered at the time of making appointments on temporary basis, though, these Section Officers as Office Superintendents claimed seniority in that lower cadre. The case of the direct recruits, on the other hand, is that under the West Pakistan Secretariat Section Officers Service Rules, 1962, rule 5 (a) and (b), 50% of the vacancies of Section Officers had to be filled by initial recruitment based on the result of competitive examination held by Public Service Commission and the remaining 50 % of the vacancies had to be filled by selection on merit with due regard to seniority from among the Superintendents serving in the Secretariat. It was, therefore, a difficult task to allocate seniority to incumbents who belonged to the serveral categories and who claimed priorities for various reasons.

The main contention of the direct recruits selected by the Public Service Commission is that the persons appointed temporarily as Section Officer on 27th September, 1975 including the appellant, should be junior to them, because they were appointed against the 50% quota of direct recruits and on the availability of the direct recruits they were liable to be reverted. It appears that the question of fixation of quota for recruit ment' is being mixed up with the question of determination of the 'Seniority'. It could never be the intention of the Government that Section Officers promoted and appointed even against the 50% quota of the direct recruits for want of availability of these direct recruits, should be reckoned as juniors to any direct recruits who might have been appointed several years afterwards. It is a recognized rule of seniority that if the promotees and direct recruits are appointed on the same date, the promotees will rank senior to the direct recruits. In this connection a decision of the Supreme Court in the case of Khushi Muhammad and others v. The General Manager, Pakistan Western Railway (PLD 19709 C203) has to a certain extent clarified this position. The relevant portion of the judgment reads as under :‑

"By placing the direct recruits in the grade as senior to the depart mental promotees, although the latter had entered the grade earlier than the former, the impugned seniority list deems, by way of a fiction; that the direct recruits were the holders of the posts reserved for them in the grade on fifty fifty basis, although they were not actually appointed to those posts and whenever appointed they should be deemed to have been appointed from the date from which the vacancy of their quota was to be filled. In other words; vacancies arising in their quota are deemed as permanent vacancies reserved for them, although, in the meanwhile, departmental pro motees have been appointed against the vacancies. The latter have, therefore, to be relegated to the position of juniority as against the direct recruits whenever appointed to the vacancies reserved for persons from their quota. We have not been shown any rule to uphold this method of determining seniority and none is discoverable on general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who joint later, merely because they fill vacancies which were deemed to be reserved for them. In our view, the ratio of 50 : 50 between the direct recruits and the departmental promotees merely relates to the policy of their recruitment to the grade and is not be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that confirmation in the grade is also to be made by rotation, that is to say, one direct recruit and one departmental promotee, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post in the grade in a temporary or officia ting capacity should rank lower in point of seniority to one who is appointed later in the same capacity against a reserved post in the same grade."

To simplify the matter further the learned A. A.‑G., Mr. Hassan Akbar has admitted the claim of the appellant regarding his regular appointment to a certain extent and he has further explained the position of the ad hoc promotees who should be deemed to have been promoted from 27‑9‑1975, since, though already acting as ad hoc Section Officers, they were inadvertently left out from being considered for regular appointment alongwith others on the same date. Mr. Hassan Akbar has also made it clear that the seniority of the direct recruits will be reckoned from the dates of their respective appointments. He has also clarified the position that Section Officers appointed directly after 27‑9‑1975 would not only be junior to the persons promoted in the batch of 1975 but would also be junior to the ad hoc promotees who would be deemed to have been promoted under rule 13 (iv) of the Seniority Rules with the batch of 1975, though, actually regularised on 17‑4‑1978.

Apart from that clarification in writing Mr. Hassan Akbar as represen tative of the Government has accepted the contention of Mr. Salahuddin, Advocate for respondents Nos. 10, 11 and 12 that since their cases were reviewed under M.L.O. 55 and found in order, their seniority will be reckoned from the dates of their original appointments as Section Officers by the Government and not from the date their cases were cleared under Martial Law Order No. 55. The statement written and signed by Mr. Hassan Akbar, A. A.‑G. and presented to the Tribunal at the hearing of the final arguments is reproduced here in extenso :‑

"The learned A. A.‑G. makes following statement with regard to Appeal No. 39 of 1982 :‑

(1) That the promotions of Section Officers from Superintendents under notification dated 27‑9‑1975 having been made in consultation with the Departmental Promotion Committee were made on a regular basis and were not ad hoc.

(2) The Section Officers so promoted will be‑ liable to count their seniority from 27‑9‑1975.

(3) The Section Officers whose ad hoc appointments were regularised under Notification dated 17‑4‑1978 would be entitled to retain their inter se seniority as Superintendent in accordance with the provisions of rule 13 (iv) of the Seniority Rules, i.e. to say those of them who were senior to the appellant as Superintendent would retain their seniority also as Section Officers and would be deemed to have been promoted in the batch of 27‑9‑1975. This is only for the purposes of seniority and not for any other benefit.

(4) The seniority of a person reckons from the date of appointment to a grade and so it cannot be post‑dated. It can, however, be ante dated by application of rule 13 of Seniority Rules.

(5) As for the direct recruits are concerned who were appointed subsequent to the appointment of the appellant in 1975, their seniority will reckon from the date of their respective appointments. The Section Officer appointed on the same date by initial recruit ment shall rank junior to the Section Officers appointed on promotion on the same date.

(6) The Section Officers appointed directly through P.S.C. after 27‑9‑1975 would be junior to the persons promoted in the batch of 1975 and also to those given seniority of the same batch under rule 13 (iv) of the Seniority Rules, though regularised on 17‑4‑1978.

(Sd.)

(HASSAN AKBAR),

Assistant Advocate‑General"

There are, thus, hardly any other issues left to be determined. The seniority list will have to be recast keeping in view the above principles and the persons deemed to have been regularly appointed by promotion on the same date will retain their seniority as in the lower cadre of Office Superintendents. In all other cases seniority will be reckoned from the date of regular appointment of each officer. In case of any doubt the seniority will be determined under sections 10 and 11 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975.

In the result, the appeal is allowed in terms of the admissions of the learned A. A.‑G. on behalf of the Government in the above statement and the principles enunciated with no order as to costs.

Appeal accepted.

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