1989SCMR585 (PLP)

Manzoor Ali Khan, Advocate Supreme Court and Ahmadullah Farooqi, Advocate‑on‑Record for Respondents Nos. ll, 13 and

15. Niaz Ahmad Khan, Advocate Supreme Court for Attorney‑General. Dates of hearing: 14th and 15th September, 1988. NASIM HASAN SHAH, J.‑‑This judgment will dispose of all the above‑noted four appeals an the question of law involved in all of them is the same. The appellants are all civil servants who were retired from service under M.L.O. 114 in March, 1972 during the period of Martial Law under Mr. ZA. Bhutto (from 21st December, 1971 to 20th April, 1972) but were re‑instated into service under M.L.O. 23 after the take over by General Muhammad Zia‑ul‑Haq on 5th July, 1977, on different dates in the year 1978. However, during the period that the appellants remained out of service and before they were re‑instated into service a large number of officers who were junior to them were promoted to the next grade and the question in these appeals is whether the appellants can claim seniority over such persons, who were junior to them before their retirement but now rank senior, in the next grade, to them? This question also arose in several other cases and now stands decided by this Court in the case entitled Government of Pakistan etc. v. Junejo I Muhammad Iqbal etc. (P L D 1987 S C 427). This Court has held that the special instructions viz. Office Memorandum of the Establishment Division bearing No.3/3/78‑R.11 dated 5th July, 1978, issued with regard to how the various issues arising from the wrongful retirement and subsequent re‑instatement of such officers under M.L.0.23 are to be dealt with, which include the manner in which seniority on re‑instatement of such persons is to be determined, namely, that A there will be no automatic promotion on the basis of the principle of "next below" rule but that such officers will be entitled to be placed inn the same position in that grade, which they would have enjoyed had there been no retirement would govern the situation. The Court found that these instructions will be applicable, according to their tenor, to all the officers re‑instated under M.L.O. 23 notwithstanding anything contrary thereto that might exist in the normal rules. These appeals, therefore, are liable to fail as the question arising therein stands I answered by this Court's aforesaid judgment. This position was not contested by any of the appellants in the above appeals except Ali Gohar (appellant in Civil Appeal No.167‑K of 1984). Mr. Abdul Hafeez Memon, learned counsel for Ali Gohar contends that the ruling in Government of Pakistan etc. v. Junejo Muhammad Iqbal (P L D 1978 S C 427) does not cover the case of the appellant because he was declared senior to the respondents in his appeal by the order of the Chief Secretary dated 16‑6‑1981 and his case does not fall for decision under the instructions of 1978. According to Mr. Abdul Hafeez Memon, the appellant was ranked much senior in the seniority list of Class‑.II Assistant Engineers/Temporary Assistant Engineers/Temporary Engineers to the respondents, pursuant to the decision of the Chief Secretary dated 16‑6‑1981 made on his appeal, but in utter disregard of this decision he has been pushed down in the seniority list of the Executive Engineers (Civil) in Grade‑18 in the Irrigation and Power Department as issued on 25‑8‑1981. Hence, according to Mr. Memon, this is not a case in which the respondents had become senior to the appellant during the period when the appellant was out of service but the adverse order, in the present case, has been passed long thereafter, viz. by issuance of the seniority list on 25‑8‑1981. To appreciate the contention of the learned counsel it is necessary to recall that the appellant (Ali Gohar) had joined on 27th January, 1955, as a Supervisor in the Sind Irrigation Department but before he could be promoted in S.S.E.II Cadre the Province of Sind was merged on 14‑10‑1955 in the newly formed Province of West Pakistan. However, the Establishment of West Pakistan Act, 1955, gave protection to Government servants of pre‑integrated Province in respect of their service rights. The appellant's case, therefore, remained under consideration in connection with the determination of his suitability for promotion to S.S.E.11 Cadre in the pre‑integrated vacancies of Sind. Ultimately, the Government of West Pakistan, Irrigation Department, referred the case of the appellant on 19‑3‑1969, along with three others, to the West Pakistan Public Service Commission to determine his suitability for promotion to S.S.E. Class 11 against the pre‑integrated vacancies. The Public Service Commission found him suitable and approved the suitability of the appellant along with three other officers on 8‑7‑1969 for promotion to S.S.E. Class II in the pre‑integrated vacancies. Eventually on 21‑3‑1970, the Secretary, Irrigation and Power Department West Pakistan issued a notification promoting the appellant along with the three other Sub‑Divisional Officers, referred to already, to S.S.E. Class 11 against the pre‑integrated vacancies. But, in the notification issued in this connection, it was stated that their seniority and date of appointment to S.S.E.‑II will be determined later on. It was, at long last, in the order passed by the Chief Secretary, Sind Province dated 16‑6‑1981 acting as the appellate authority that this determination took place. In view of the stress laid by the learned counsel for the appellant on this order, it may b<; quoted hereunder in extenso:‑ NOTI FICATION NoAdmn.1/3‑4/70‑I:‑ The Chief Secretary to Government of Sind Appellate Authority has been pleased to uphold the appeal of Mr. Ali Gohar Tunio, Assistant Executive Engineer in claiming seniority as Assistant Engineer with effect from 21‑3‑1970 when the Government of West Pakistan on recommendations of West Pakistan Public Service Commission notified him as such. His date of confirmation will also be in accordance with section 7(5) of the Sind Civil Servants Act, 1973, from the date of occurrence of permanent vacancy in that service or post or from the date of continuous officiation in such service or post whichever is later. Since the Notification No.111‑17/43‑SOII(E)/66 issued by the Government of West Pakistan on 21‑3‑1970 promoted the Officer against a vacancy of pre‑integration, the Officer shall be entitled to confirmation from that date. As a result thereof the inter se seniority of the four Supervisors/Sub Divisional Officers, who were promoted to S.E.E. Class 11 against pre‑integration vacancies under West Pakistan, Irrigation and Power Department. Notification No.III‑17/43‑SOII(E)/66, dated the 21st March, 1970 vis‑a‑vis the other officers appearing in the Seniority List of Class II Assistant Engineers/Temporary Assistant Engineers/Temporary Engineers in this Department, revised and re issued on 1‑1‑1974 will now be as under:" In this seniority list the appellant was shown very much higher to the respondents. But in the seniority list of Grade‑18 (Executive Engineers) notified on 25‑8‑1981, the appellant was, all of a sudden, placed junior to all the officers who were shown as junior to him in the earlier seniority list notified on 16‑6‑1981. Thus, according to Mr. Memon, the appellant in this case is laying claim to seniority over the respondents not on the basis of the order of re‑instatement passed under M.L.0.23 but under the orders of the Government of West Pakistan as finally implemented vide decision of the Chief Secretary in his order dated 16‑6‑1981, on the appeal of the appellant. Unfortunately, this contention cannot be accepted because the seniority list circulated in pursuance of the order of the Chief Secretary dated 16‑6‑1981 and being relied upon by the appellant pertains to Class II Assistant Engineers/Temporary Assistant Engineers/ Temporary Engineers i.e. the officers in Grades 16 &

17. In this seniority list, the appellant was given his due and rightful place as per orders of the Government of West Pakistan dated 21‑3‑1970. But what is to be seen here is whether the non‑adherence to the position assigned to the appellant in the seniority list of the officers in Grade‑18 i.e. in the next Grade can be justified on the legal plane? Now it is not disputed that during the period of more than six years from March, 1972 to October, 1978 the appellant was out of service. It is during this period that the respondents were promoted to Grade‑

18. Mr. Memon tried to dispute this position but this is not possible because the appellant himself, in his petition for leave to appeal to this Court, has admitted this position. In para 5 thereof, he states "that the petitioner was in the meantime promoted as Executive Engineer in Grade‑18 on 15th May, 1980. The seniority list of Grade 18 Officers was thereafter notified on 25th August, 1981, and the petitioner was shown in that list at Serial No.61 i.e. junior to all the officers who were promoted before and during his illegal retirement". (under lining is ours). This is also evident from the entries in the "Seniority List of the Executive Engineers (Civil) in Grade‑18 in the Irrigation and Power Department as on 25‑8‑1981" which shows that the date of regular appointment as XEN (Civil) of the respondents is in the years 1970 and 1977, when the appellant was unfortunately not in service and re‑instated thereto only in 1978. The upshot is that the situation obtaining in the appellant's case is not different from that which obtained in the case of Junejo Muhammad lqbal and, IB accordingly, the rule laid down therein will also apply to his case with the result that his appeal must also fail. In the result, all the abovementioned four appeals shall stand dismissed, but there will be no order as to costs. M.Y.H./A‑375/S Appeals dismissed.