1994 PLP (C (PLC(CS))

4. It appears that after the Tribunal's judgment dated 9‑8‑1992 in the case of Sadaqat Ali, the Senior Clerks as also Upper Division Clerks were placed in one category and a fresh seniority list was drawn up with reference to the dates of their appointments on promotion as Upper Division Clerks since respondents Nos. 4 to 6 were admittedly senior to the appellant and aforementioned Muhammad Iqbal, they were accordingly shown as senior in the combined seniority list and then Selection Grade was granted to them by order dated 28‑12‑1992 on the basis of 33% formula laid down in Finance Division's O.M., dated 1‑7‑1987. Since only three incumbents were to be placed in the Selection Grade on the basis of seniority, Rahat Akhtar appellant and Muhammad Iqbal were again reverted to BPS‑7 as Upper Division Clerks with effect from 30‑11‑1992.

5. In the background of these facts, the validity of order dated 28‑12‑1992 regarding the appellant's reversion has been challenged in the present appeal under section 4 of the Service Tribunals Act, 1973, after fulfilment of the jurisdictional requirement of having exhausted the departmental remedy.

6. The main thrust of the appellant's case is that the Upper Division Clerks and the Senior Clerks were in separate cadres and that Selection Grade had rightly been granted to him by the competent authority through orders dated 21‑9‑1988. Reliance in support has been placed on the provisions of section 8 of the Civil Servants Act, 1973 which are to the following effect: . "8???????? Seniority.‑‑‑(1) For proper administration of a service, cadre or post the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or post, 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 cadre whether serving in the same department or office or not, as may be prescribed. (3)??????? Seniority on initial appointment to a service, cadre or post shall be determined as may be prescribed. (4)??????? Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post."

7. The argument is that the contesting respondents were holding different posts as Senior Clerks and that they did not belong to the cadre of Upper Division Clerks. It was contended by the appellant's learned counsel during the course of arguments that the appellant and contesting respondents belonged to different cadres and grant of Selection Grade on the basis of 33% formula conveyed through O.M. dated 1‑7‑1987 was meant only for the Upper Division Clerks. It was also his argument that grades having been done away with by amendment of the relevant provisions of section 8, the contesting respondents were in a separate cadre regardless ‑of the fact that their posts carried BPS‑7 which is the same as that of the post of Upper Division Clerk.

8. We do not feel inclined to agree. The posts of Upper Division Clerks and those of the Senior Clerks, although with different designations carry the same pay scale with identical duties. By virtue of this circumstance, they have to be regarded as being in one cadre. Although the contesting respondents are said to have been promoted as Senior Clerks, they remained in the same basic pay scale as that of the Upper Division Clerk and we are of the view that the word "promotion" could not be applied to their case. It was only a change in designation with no other difference either in emoluments or functions. They will, therefore, have to be regarded as belonging to one cadre for all intents and purposes.

9. It may be added that the Finance Division's O.M. dated 1‑7‑1987 requires same consideration. Its item 4(iii) provides that 33% posts of Upper Division Clerks (BPS‑7) shall be placed in the Selection Grade (BPS‑9). Now if the posts of Senior Clerks are. to be treated as belonging to a different cadre, none of its incumbents could have been placed in the Selection Grade. Although Muhammad Ashraf respondent was placed in Selection Grade by order dated 21‑9‑1988, there was hardly any justification for such action, considering that this right was allowed only to the incumbents of 33% posts of Upper Division Clerks. There is no mention of the Senior Clerks of the Federal Government in the Office Memorandum. The Department appears to have stretched the formula to make it applicable to the Senior Clerks. On this basis, their being four posts of Senior Clerks, only one namely Muhammad Ashraf was placed in the Selection Grade against 33% quota. As already pointed out before, this could not have been done on the basis of the provisions of O.M. dated 1‑7‑1987, which made no mention of the posts of Senior Clerks.

10. There is another aspect of the matter. Compliance with the provisions of item 4(iii) created an anamolous situation, in that Rahat Akhtar appellant and Muhammad Iqbal were both promoted to BPS‑9 in the Selection Grade, in spite of the fact that they were admittedly junior to the respondents as Upper Division Clerks. The result `was that they both got BPS‑9 on promotion whereas Sadaqat Ali and Javed Ahmed respondents remained in BPS‑7 as Senior Clerks. The Finance Division cannot be deemed to have intended such a situation. It may, however, be observed that the matter deserve reconsideration by the Ministry of Finance in the light of observations made by us.

11. For these reasons, we hold that there is no force in this appeal. It is accordingly dismissed. Judgment dated 9‑8‑1992 delivered by us in Appeal No.18(L)/89 ‑‑ Sadaqat Ali v. Director‑General, Department of Supplies, Karachi and three others may be read as part of this judgment. There will, however, be no order as to costs. Parties to be informed. H.B.T./895/Sr.F ????????????????????????????????????????????????????????? ??????????? Appeal dismissed.