1993 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN): ‑‑This common judgment will dispose of three appeals, namely: Appeal No. 1 of 1992 filed by Mr. Ghulam Yasin Abro, Appeal No. 2 of 1992 filed by Mr. Mushtaq Ahmad and Appeal No. 3 of 1992 filed by Mr. Mehar Ali, which involve identical question of law and facts. In all three appeals, appellants have called in question, the order of Education Secretary, Government of Sindh, dated 15th September, 1991 whereby the private respondents M/s. Muhammad Iqbal Malik and Saeed Hussain Malik, Sub‑Engineers (BS‑16) of the Communication and Works Department working on deputation in the Directorate of Engineering Works, Education Department were permanently absorbed in the said Directorate w.e.f. 26‑2‑1990 and were assigned seniority under rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred as seniority rules).

2. The background leading to the passing of the impugned order may briefly be described as follows. On the basis of their qualification of three years diploma, the appellants were appointed as Sub‑Engineers (BS‑11) by initial recruitment in the Directorate of Engineering Works of the Education Deptt. (hereinafter referred as the said Directorate). The appointment f appellant Mehar Ali was made w.e.f. 31‑3‑1993 whereas that of other two appellants from 26‑3‑1983. As per appellants' version of the case, respondents Muhammad Iqbal and Saeed Hussain were transferred on their own request respectively on 12‑7‑1987 and 18‑7‑1987 from the Communication and Works Department to serve on deputation in the said Directorate. They were subsequently absorbed on permanent basis vide the impugned order in the said Directorate also on their own request, allowing them the benefit of the past service obviously in determination of their seniority. Aggrieved by the said order, the appellants lost no time in preferring departmental appeals and after waiting for the required statutory period of 90 days, they have rushed in the present appeals.

3. At the bar, the appellants were represented by Mr. Muhammad Aqil Awan, while Mr. Manzoor Ali Khan appeared for the two private respondents and Mr. Abdul Latif Ansari, AA.‑G. represented the official respondents. We heard with patience the arguments of all the three counsel and with their assistance went through the relevant documents.

4. As stated above the appellants have grievance against the Education Secretary's order, dated 15th September, 1991 which may be reproduced as under: "No. S.O. (E‑V) 9‑19/89 with the approval of the competent authority M/s. Muhammad Iqbal Malik and Saeed Hussain Malik, Sub Engineer (B‑16) of Communication and Works Department presently working in the Directorate of Engineering Works, Education Department are hereby absorbed as Sub‑Engineer (B‑16) in the Directorate of Engineering Works Education Department on permanent basis with effect from 26‑2‑1990 and also allowed the seniority in terms of rules 12‑A of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975."

5. The appellants' prayer is that whole of the above order be set aside or in the alternative the last portion of the said order allowing the benefit of past service to the said private respondents be revoked. Elaborating the above prayer the appellants' learned counsel pointed out that if the past service of the said private respondents was taken into consideration in determination of their seniority vis‑a‑vis the appellants, they would become senior to the latter. According to the learned counsel since the said private respondents were inducted in the appellants' cadre (i.e. Sub‑Engineer BS‑11) on their own request, the inter se seniority of the parties in the said cadre would be fixed under clause (b) and not under clause (a) of rule 12 of the Seniority Rules, and thereby the said private respondents would be assigned the seniority position below the appellants' names in the seniority list.

6. The two learned counsel for the respondents vehemently controverted the above arguments of the appellants' learned counsel. Their contention was that the private respondents were called to serve in the said Directorate in the exigencies of service and not on their own request. The other argument of the said learned counsel was that at the time of the said private respondents' absorption in the said Directorate, they were working in higher pay scale of BS‑16 and therefore they could not be equated with the appellants for the purpose of determining their inter se seniority. It appeared to us from the arguments made at the Bar that the crucial points to be determined were whether the two private respondents were absorbed in cadre of Sub‑Engineer (BS‑11) to which the appellants belonged and if so, whether their absorption was made on their own request or in the exigencies of service. As for the first point we may look into the order of absorption itself. It is clearly mentioned in the said order that the said private respondents were absorbed Sub‑Engineer in (BS‑16) in the Directorate of Engineering Works, Education Department. It is an admitted position that the appellants who joined the said Directorate as Sub‑Engineers in (BS‑11) through initial recruitment continued to work in the same capacity until passing of the impugned order. As such they could not be held to be belonging to the same cadre of Sub‑Engineers (BS‑16), in which the absorption of the said private respondents was made. To clarify the position further we may refer to the order dated 27‑2‑1990 of the Communication and Works Department whereby amongst others, the said private respondents, following the recommendations of the Departmental Promotion Committee were allowed Grade‑

16. It was obviously subsequent to the said promotion that they were absorbed in the Education Department. Thus, no doubt was left in our mind that the said private respondents were absorbed in the higher cadre of Sub Engineers (B‑16), when the appellants belonged to lower cadre of Sub Engineers (BS‑11).

7. It was however argued on behalf of the appellants that despite the difference between their basic scale of pay as mentioned above, common seniority list of all Sub‑Engineers was drawn up indicating their seniority according to the date of their entry in the said cadre. This argument was prima facie absurd. The persons in higher scale of pay could not, be bracketted with these drawing lower scale of pay. Even if the seniority list was prepared in terms of nomenclature of the posts still the' persons having moved in the higher grade were to be placed above the persons still in lower grades. In this connection our attention was drawn to the seniority list of Sub‑Engineers issued on 1‑2‑1989 wherein the said private respondents were shown junior to the appellants. Such plea was even taken by the appellants in para. 5 of their memo. of appeals. But in reply to the said plea, it has been clarified in the corresponding para. 5 of the written statement filed on behalf of the official respondents that the names of the said private respondents were wrongly mentioned in the aforementioned seniority list, because by that time they had not even been absorbed in the Education Department but were only working on deputation. It is the appellants' own admission in para. 6 of the memo of appeal that in subsequent seniority list, of Sub‑Engineers issued on 1‑1‑1990 which enjoyed the status of the final seniority list, the names of the said private respondents were consciously missing. Thus, the index subsequent seniority list supports the respondents' plea that the names of the said private respondents were wrongly mentioned in the earlier seniority list. It also did not appeal to reason that the said private respondents absorbed in the Education Department on 15th September, 1991 would find mention in the said' department's seniority lists issued prior to that date. It was also noteworthy that according to the appellants' own admission, the said private respondents after their transfer from the parent department were posted in higher posts of Sub‑Divisional Officers in the Education Department. This is also an indication of the said private respondents being superior in seniority to the appellants.

8. Taking all the above factors into consideration we have come to the conclusion that the said private respondents were absorbed in the higher cadre of Sub‑Engineers (BS‑16) and not in lower cadre of Sub‑Engineers (BS‑11) to which the appellants belonged. Consequently the question of their inter se seniority did not arise. Even if the said private respondents belonged to the lower cadre of SubEngineers (BS‑11) at same stage, consequently upon their promotion to higher Pay Scale‑16, they obviously became senior to the appellants. It may also not be forgotten that the said private respondents were promoted to higher Pay Scale 16 by their own department prior to their formal absorption in the Education Department.

9. The next point for our consideration is that even if we assume that the absorption of the said private respondents was made in the same cadre of Sub Engineers (BS‑11) to which the appellants also belonged whether their absorption in that cadre was made on their request or in the exigencies of service. The appellants' case is that not only the services of the said private respondents were requisitioned on their own request but also their permanent absorption in the Education Department was made on their own request. In support of their case, their learned counsel made obviously vague allegation that said private respondents managed to cause disappearance of the relevant documents from the official record in order to show that they were called to Education Department and subsequently absorbed in the said department not on their own request but in the exigencies of service. The learned counsel however could not substantiate his allegations as he was unable to produce any proof for his contention. On. the other hand the very order of absorption contained a definite indication that the absorption was made not on request of the said private respondents. Precisely for this reason clause (a) of rule 12 of seniority rules was invoked and the benefit of past service was allowed to the said private respondents under the said rule. Thus, in absence of any other evidence the impugned order was enough to‑prove that the absorption of the said private respondents had been made in exigencies of service and not on their own request.

10. However, our attention was drawn to several other documents in support of the respondents' plea. The most significant document in the series was the letter, dated 31st July, 1991, written by the said Directorate to the Education Secretary. As it is a lengthy document we would like to refer only to its pertinent portion. It reads as under:‑‑ "The services of M/s. Muhammad Iqbal Malik and Saeed Hussain Malik, Sub‑Engineers of the Communication and Works Department were requisitioned by this Directorate for posting them Sub‑Divisional Officers vide Letter No. PD/(EDU/Estt/4248, dated 30‑4‑1987 (copy enclosed). Having been relieved from their parent department, they joined this Directorate on 12‑7‑1987. They have worked as Sub Divisional Officers in the Sub‑Division for the periods as indicated below Attention is invited to your department Letter No. S.O.(P & D‑1)15(101)/89, dated 26‑7‑1989 under which the Government called the option from the deputationists including the abovementioned officers working in the. Directorate of Engineering Works as Assistant Engineer/Executive Engineer for their permanent absorption. In response both M/s. Muhammad lqbal Malik and Saeed Hussain Malik have opted for their absorption provided they are assigned seniority from the date of entry in Government service as Sub‑Engineer on recommendation of D.P.C. they have also been allowed B‑16 by their parent department vide Communication and Works Department Order No. SO‑E II(C&W)III‑1/84/814‑U dated 27‑2‑1990 (copy enclosed). During their stay with this Directorate it has been found that both M/s. Muhammad Iqbal Malik and Saeed Hussain Malik are devoted and hard workers. Their field as well as office work is satisfactory. Since their services were requisitioned and their parent department i.e. Communication and Works Department has given no objection, both the incumbents may be absorbed in the Directorate with the benefit of past service. The above document which is sufficiently comprehensive goes a long way to prove that the services of the said private respondents were requisitioned obviously in exigencies of service and not on their own request. Consequently they were transferred from their parent department (i.e. Communication and Works Department) to serve first on deputation. Even for their permanent absorption their options were solicited and after they gave their consent and no objection certificate was obtained from their parent department, then alone they were permanently absorbed in the said Directorate. As disclosed in the above document their qualities of devotion and hard work were also kept in view for their absorption. The above document further shows that after the services of the said private respondents were placed at the disposal of the said Directorate, they were posted in higher posts of Sub‑Divisional Officers and not Sub‑Engineers, the capacity in which they were working in their parent department.

11. The appellants' learned counsel attacked the aforesaid document, declaring it as fictitious. In support of his contention he referred us to para. 8 of the caption "Grounds" of the memo of appeal. In this para serious allegations have no doubt been made against the said private respondents that as mentioned above they had managed the tampering of the official record and got certain documents prepared to show that their services were requisitioned from the Communication and Works Department in exigencies of service. These allegations being devoid of proof are prima facie baseless. Neither in course of the arguments of the appellants' learned counsel nor in the memo of appeal elaboration was made as to how and in what manner the said private respondents got access to the official record so that they successfully accomplished their desired goal. The said allegations have been categorically denied in the corresponding para of the written statement filed on behalf of the official respondents. Even otherwise the presumption of authenticity is attached to official documents until it is successfully rebutted. As pointed out above the learned counsel for the appellants failed to provide any such rebuttal.

12. They other document to which our reference was invited was a letter, dated 26th July, 1989 separately addressed to the said private respondents calling upon them to give their option if they were willing for permanent absorption in the Education Department. In response their consent for the absorption was duly conveyed vide their letters dated 24th August, 1989 addressed to the Education Secretary. Thus, the above exchange of letters between the said private respondents and Education Department proved beyond doubt that initiative for absorption was taken by the Education Department and not on request of the said private respondents. Moreover, the above exchange of correspondent between the private ‑respondents and Education Department stands unchallenged, as the appellants have not questioned the authenticity of the said documents, we are therefore of the view that these documents were enough to clinch the controversy and establish beyond doubt that the private respondents' absorption in the Education Department had taken place not on their own request but on the said department's own initiative and obviously in the exigencies of the service. In view of these findings we hold that the private respondents were entitled to the benefit of past service at the time of their permanent absorption in the Education Department, as has been rightly allowed to them by the impugned order

13. The upshot of above discussion is that the appeals must fail and they are accordingly dismissed with no order as costs. H.B.T./408/Sr.S Appeals dismissed.