2011 PLP (C (PLC(CS))

JUSTICE (RETD.) GHULAM NABI SOOMRO (CHAIRMAN).

These three appeals under section 4 of the Sindh Service Tribunals Act, 1973 being identical and involving similar facts and questions of law are disposed of by this single common judgment. Serial wise the prayer made in each of the appeal is as follows:

S.A. No.102 of 2008 (a) to direct the respondents to assign the appellant proper seniority at appropriate place of the impugned final seniority list dated 25-3-2008 from the date of his appointment viz. 2-4-1991 with all back and consequential benefits and continuity of service and be further pleased to set aside the appellate order communicated to appellant through letter dated 13-8-2008. (b) costs of the appeal and (c) any other relief... S.As. Nos.106 and 107 of 2008 (a) to set aside the impugned order dated 23-4-2008 passed by the respondent No.2, directing the respondents to constitute a high powered committee to scrutinize the entire process of assigning seniority to the Excise and Taxation Inspectors from 1990. (b) to direct the respondents to allow the appellant his due position in the seniority list in terms of his date of appointment i.e. 20-10-1991, and the consequential benefits with regard to the promotion etc. from the date same fallen due to the appellant. (c) Award any other relief... The prayer simplified thus is that the appellants be given their due and rightful position in the seniority list. 2. The facts of their cases are that they were appointed as Excise and Taxation Inspectors on 2-3-1990. Their services were regularized by the Chief Minister, Sindh on 2-4-1991. However services of 77 inspectors including the appellants were terminated on 23-8-1995 by a common order. Almost all of them were reinstated either through the aid of the courts or by the government itself. Appellants as per government policy were to appear before the DPC for determination of their suitability and regularisation of their service. However by order dated 14-11-2006 their services along with 29 others were regularized second time wherein appellant's name has been placed at S. No.292 showing the appellant date of regularization in service on 14-11-2006 instead of 2-4-1991. The appellants have further stated that Zafar Iqbal Bangash, Hafeezur Rehman and Muhammad Haneef having exactly the same case have been given seniority and also prompted as AETOs. The appellant therefore filed departmental appeal which was rejected vide letter dated 13-8-2008. Hence this appeal. 3. On the other hand the respondent No.3 in his written statements has stated that the appellant was initially offered, for the post of ETI on 2nd March, 1990 against a leave vacancy. His service was terminated along with 76 other ETIs. However the appellant was reinstated in service through the aid of the, Court along with a number of his colleagues. It is admitted that services of the appellant along with his six other colleagues were regularized by the department on 2nd January, 1992 on political influence which was in violation of Rule 10(1) of the Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules, 1975. That the appellant never objected to the seniority list of ETIs circulated first on 23-2-2007 and subsequent one dated 25-3-2008. It is admitted further that retrospective seniority was 'assigned to Messrs Ashfaq Ahmed, Khawaja Maqbool and Ashfaque Ahmed Shaikh upon advice tendered by regulation wing of S&GAD as they were appointed as ETIs on the orders of the Chief Minister, Sindh. It is also admitted that retrospective seniority was assigned to Messrs Zafar Iqbal Bangash, Hafeezur Rehman and Hanif Khan on the orders of the Minister, Excise and Taxation. While the respondents 1 and 2 did not file their written statement in spite of sufficient time given, hence they were declared ex parte. 4. We have heard the learned counsel for the parties and perused the record. Mr. Jamil Ahmed Rajpar learned counsel for the appellant argued that service of the appellant was regularized as back as 24-4-1991 and there was absolutely no scope under the law for second time regularisation or re-regularization of service. The department was wrong in re-regularization of appellants service w.e.f. 14-11-2006 instead of 2-4-1991. The appellant challenged this order through departmental appeal which was rejected on 13-8-2008. It was urged that the department had erred in regularising the appellant's service second time, with the result that the appellant was pushed back to Serial No.292 in the seniority list. Reliance was placed upon the cases of Ishfaq Hussain Rana v. Government of Punjab through Secretary, Agriculture and 38 others 1993 SCMR 1326 (2) Samar Gul v. Central Government and others PLD 1986 SC 35 (party can be given relief to which it is found entitled, no 'matter if there is no specific prayer for such relief), (3) Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. and others PLD. 1975 SC 244. Mr. Moula Bux Khoso learned counsel for the appellants in Appeals Nos.106 and 107 of 2008 argued that his clients were selected; and .appointed on regular basis against the existing vacancy on 20-10-1991 and latterly after reinstatement in the service in September, 1998 their names were correctly shown in the seniority list issued on 16-1-1999 as stood on 31-12-1998. This seniority list was never challenged. Thus it attained finality. Learned counsel however reiterated that the civil servant appointed as regular on the existing vacancy after reinstatement can never be re-regularized. 5. On the other hand the learned A.A.-G. while opposing the appeal argued that the regularization of service of the appellants would take effect from 2006 and their earlier regularization of service stood washed away with their dismissal. We are afraid we cannot subscribe to such argument. The learned A.A.-G. however could not controvert the fact of regularization of their services in the year 1992. We therefore reject such contentions being without force. 6. Indeed the appellant's service was regularized on or about 1991, they shall be entitled to be treated as such and their names included in the seniority list at proper place. 7. The fact that after their restoration of service after dismissal from service all the 77 ETIs or some of them who may have joined their service, would stand to their pre-dismissal position as the unlawful act where by all the 77 ETIs lost their services was set aside/rectified either under orders of the honourable High Court, this Tribunal or in some cases by the department itself. The setting aside of the order of dismissal from service of the appellants would, at least for the purpose of seniority, certainly mean that no order of dismissal was ever passed c against them. They will therefore revert to their previous position. Accordingly they would have every right to claim regularization of their service from the date when their service was regularized first time in 1991/1992. It may be noted further that there is no provision in law of re-regularization of service of a civil servant. Hence, regularisation of the appellant's service from 2006 would be absolutely wrong and incorrect. Since the order of dismissal from service of 77 ETIs including the appellants was corrected and undone by different fora as stated above, the appellants dismissal would not come in their way at any stage of service. 8. Accordingly all the three appeals are allowed. There will be no order as to costs. H.B.T./5/SST Appeals allowed.