2012 PLP (C (PLC(CS))

GULZAR AHMED, J.

By these appeals the appellants have challenged common judgment dated 21-9-2010 of the Sindh Service Tribunal by which the appeals filed by the appellants were dismissed.

2. Leave to appeal was granted vide order dated 13-6-2011 which reads as follows:-- "After hearing learned counsel for the petitioner at some length and upon perusal of minutes of the meeting of the Departmental Promotion Committee-I, Service and General Administration Department held on 28-9-1987, containing justification for promotion of the petitioner, we are inclined to grant leave to appeal in these petitions. Order is accordingly passed."

3. The facts relevant for consideration in these appeals are that the appellants were promoted from the post of Superintendents to that of Section Officers BS-17 on the recommendation of Departmental Promotion Committee on 20-10-1987 and were further promoted on 1-4-1994 to BS-18, Selection Grade. The respondents were directly recruited in the year 1988 to the post of Section Officers through the selection process of Sindh Service Commission. The appellants remained senior in the seniority list from 1989 to 1997, which was never challenged by any of the respondents. However, on issuing of seniority list on 24-3-1998 superseded by the list dated 19-8-1999, the respondents were shown senior to the appellants. Such seniority list came to be challenged by the appellants in service appeals before the Sindh Service Tribunal, which were decided vide common judgment dated 7-4-2005 and were dismissed. The matter came before this Court where it was pointed out that the appeals filed by the appellants against the seniority list dated 19-8-1999 before the Departmental Authority were not decided. Consequently, vide order dated 28-4-2009 the appeals were partly allowed and the impugned judgment with regard to the findings qua the appellants were set aside and the Competent Authority was directed to decide the pending appeals within six weeks of the receipt of this order after hearing all concerned. Pursuant to this order, the Departmental Authority considered the appeals of the appellants and rejected the same vide order dated 6-7-2009. The appellants filed fresh appeals in the Sindh Service Tribunal, which have been decided by the impugned judgment.

4. Learned counsel for the appellants has admitted the fact before us that there is a quota in two cadres one of promotion and the other of direct selectees but has contended that such quota was suspended in the years 1982 to 1988 during which the appellants were promoted as Section Officers and therefore, they being in office of Section Officers prior to the respondents being appointed on the same posts could not be made junior to the respondents, more so, when from 1989 to 1997, the appellants have been shown as senior to the respondents, which was not challenged. On the other hand, the counsel for the respondents has contended that the appellants were given seniority from the quota of direct selectees and such being only a tentative measure did not confer right on the appellants of permanent seniority and upon adjustment being made by the department through seniority list dated 24-3-1998 superseded by the list issued on 19-8-1999, the respondents were rightly shown senior to the appellants having acquired the same according to the quota meant for them. It was further contended that the respondents were promoted to the post of BS-18 vide Notification dated 12-10-2002, whereas the appellants were promoted to the post of BS-18 in the year 2005. The appellants did not challenge the promotion of the respondents and the names of the respondents in the seniority list of Deputy Secretary BS-18 circulated from 2002 to 2007, where they were shown senior to the appellants, were not challenged by the appellants, which attained finality and subsequently, some of the respondents have further been to the post of BS-19 as Additional Secretary. Learned counsel for the respondents has contended that the adjustment of the quota was made in terms of Rule 5 of West Pakistan Secretariat Service Rules, 1972 and also relied upon Fundamental Rule 114(a) and (b). Learned counsel for the respondents has further contended that such adjustment was adverted pursuant to the judgment of this Court rendered in the case of Federation of Pakistan v. Azam Ali and others (1985 SCMR 386) and Nasim ul Haque Malik v. Chief Secretary, Sindh and 4 others (1996 PLC (C.S.) 921).

5. The above arguments from the side of the respondents were advanced by Mr. M. M. Aqil Awan, Senior Advocate Supreme Court, which were adopted by Mr. Ansari Abdul Latif, Senior Advocate Supreme Court also representing some of the respondents.

6. We have considered the submissions made by the learned counsel and have gone through the record of the two appeals.

7. The question which has cropped up in these appeals apparently is not of first impression but rather a deja vu in this Court in that as a matter of principle it was put to rest by the cases of Azam Ali and Nasim ul Hague Malik supra. It is not disputed that the eligibility for promotion of the appellants was to be considered in terms of section 9 of the Sindh Civil Servants Act, 1973, which provides for reserving of quota for departmental promotion. The rule 5 of West Pakistan Secretariat (Section Officers) Service Rules, 1962 prescribed a method for recruitment of Section Officers that of 50% by initial recruitment to be filled on the basis of competitive examination to be held by the Commission and the remaining 50% of the vacancies shall be filled by selection on merits with due regard to the seniority from among the Superintendents. This rule was further exemplified by notification dated 10-10-1993 of the Services and General Administration Department, Government of Sindh, which provided for quota of 50% by initial appointment and 50% by promotion. The fact that when the appellants were promoted to the posts of Section Officers, there was no vacancy for them for promotion against such posts was not disputed before us and it was rather admitted as a matter of fact that their promotions as Section Officers were against the quota reserved for direct recruits. The emergence of this factual position in the light of the provision of law referred to above and the two judgments of this Court noted above will make the case of the appellants altogether untenable for that they being promotees to the posts reserved for direct recruits could not claim themselves to be on regular senior position above the respondents as their such promotion was to be adjusted as per quota of promotees and direct recruits. Their promotion was as an ad hoc and temporary one and no sooner the adjustment was made, which in the present case was done through seniority list dated 19-8-1999, they were rightly relegated to the post to which they were entitled under the rules. In view of the above, we find no illegality or perversity in the impugned judgment and therefore dismiss both the appeals. M.W.A./A-13/SC Appeals dismissed.