1993 PLP (C (PLC(CS))

2. The validity of the order granting selection grade to respondent No. 4 has beg-n challenged by Mr. Sadaqat Ali. Senior Clerk (BPS-7) of the Office of Controller of Inspection Department of Supplies, Lahore, in this appeal under section 4 of the Service Tribunals Act, 1973, after his representation dated 10-10-1988 to respondent No. 3 (Annexure `H') failed to produce any result. 3.'The prayer is that the order dated 21-9-1988 through which respondent No. 4 has been awarded BPS‑9 be set aside and as a consequential relief, respondents Nos. 1 and 2 be directed to fix the pay of the appellant in BPS‑9 in accordance with Office Memorandum dated 1‑7‑1987 with all benefits".

4. Material facts are not in dispute. After having been appointed as Lower Division Clerk on 9‑11‑1970, the appellant was promoted as Upper Division Clerk (BPS‑7) on 16‑4‑1978. He was promoted as Senior Clerk (BPS‑7) by order dated 6‑1‑1985 (Annexure `A') without any enhancement of pay or other monetary benefits. Mr. Muhammad Iqbal respondent No. 4 was appointed as Lower Division Clerk on 27‑12‑1978 and then promoted as Upper Division Clerk (BPS‑7) on 26‑9‑1984 and is admittedly junior as Upper Division Clerk to the appellant whose contention in support of the relief sought by him is that he was entitled to selection grade instead of respondent No. 4 on the basis of seniority.

5. Although Mr. Muhammad Iqbal respondent No. 4 is in contest, we know it for a fact from the circumstances of this case that it was primarily for the department (respondents No, 1 to 3) to defend the impugned order of 21‑9‑1988 placing respondent No. 4 in the Selection Grade (BPS‑9). It will, therefore, be worthwhile to know as to what they have pleaded in defence. While admitting the factual position regarding the appellant's seniority as Upper Division Clerk, they have made a reference to the contents of para. 4(ii) of Office Memorandum, dated 1‑7‑1987 which lays down that the Senior Clerks (BPS‑6) of the Provincial Governments shall be allowed BPS‑7 and 33% posts be placed in the Selection Grade (BPS‑9). Although the pleadings of paragraphs 6 and 7 of department's written statement are not happily worded, we notice that they tend to cause an impression as if the‑ appellant's reliance in support of his case is on the aforesaid paragraph 4(ii) of the Office Memorandum. On this surmise, the defence is that these provisions apply only to the Senior Clerks of the Provincial Governments. However, we find that there is no factual basis for this surmise. There is nothing in the appellant's pleadings to indicate that his reliance is on ‑the provisions of paragraph 4(ii) of the Office Memorandum. He has in fact relied upon the provisions of paragraph 4(iii) of the Office Memorandum which says that 33% posts of Upper Division Clerks (B‑7) shall be placed in the Selection Grade (BPS‑9). This aspect of the matter aside, the department's case on merits is that there were four posts of Senior Clerks and six posts of Upper Division Clerks in the Office of Controller of Inspection, Lahore (respondent No. 2) on 1‑7‑1987. Out of six Upper Division Clerks, two senior‑most were to be placed in the Selection Grade on the basis of 33% formula. It was accordingly granted to Mr. Muhammad Iqbal, respondent No. 4 and Rabat Akhtar. It is also the department's case that out of four Senior Clerks only one was entitled to the grant of selection grade and it was accordingly given to Mr. Muhammad Ashraf who way "senior to the appellant. It was pleaded that award of BPS‑9 Mr. Muhammad lqbal respondent No. 4 is in accordance with the provisions Office Memorandum dated 1‑7‑1987.

6. We find it difficult to agree with the department's point of view. In the first place, it is factually incorrect that Selection Grade was granted to Rabat Akhtar, Upper Division Clerk and Mr. Muhammad Ashraf, Senior Clerks by order dated 21‑9‑1988, whereby respondent No. 4 was placed in the selection grade. Be that as it may, the department has not produced any document to show that Mr. Muhammad Iqbal respondent No. 4 was senior to the appellant and thus entitled to the grant of selection grade to his exclusion. Even though Mr. Sadaqat Ali was promoted as Senior Clerk by order dated 6‑1‑1985, he remained in BPS‑7 and did not have any monetary benefit on account of this so‑called promotion. He virtually remained, for all practical purposes, in the same cadre of Upper Division Clerks as the contesting respondent Mr. Muhammad Iqbal. There is nothing in written statement filed by the Department of Supplies to show that the Senior Clerks were placed in a separate cadre and that the 33% formula was to be applied to them on the basis of their seniority in that cadre. All the persons mentioned in the written comments of the department were in BPS‑7 and should have been shown in a single list in order of seniority. If the grant of selection grade had been considered in this view of the matter, the appellant was entitled to selection grade to the exclusion of respondent No, 4 who was wrongly placed in that grade by order dated 21‑9‑1988.

7. There is another circumstance worth notice. The discussion the previous paragraph is on the basis of department's position adopted m the parawise comments of 15‑3-1989 filed by the Department of Supplies (respondent No. 2). On 15‑7‑1992, another written statement was placed on the record on behalf of respondents Nos. 1 to 3 by their counsel Hafiz Tariq Naseem, Advocate. This was brought to our notice on 20‑7-1992 which was the next date of hearing. In the interim order of that date, an observation was made to the effect that comments have been filed by the respondents with a copy to the appellant's counsel. The interim order indicates that we were clearly of the impression that the comments are being filed on behalf of the department for the first time. This, however, was not the case as it appears from the record, which shows that parawise comments were filed on 15‑3‑1989 by the Department of Supplies. The comments of 15‑7‑1992, though purporting to have been filed on behalf of respondents Nos. 1 to 3, appear also to have mainly been filed by the Department of Supplies.

8. In the comments of 15‑7‑1992, the position adopted by the department is that the appellant belongs to the cadre of Senior Clerks which is distinct from the Upper Division Clerks' cadre and that merger of cadres cannot be allowed. It is further pleaded that in this view of the matter, the appellant's claim is not sustainable.

9. In the first place, the comments of 15‑7‑1992, virtually amount to material amendments and additions in the earlier comments of 15‑3‑1989. This appears to have been done without the permission of the Tribunal and we feel that there is no justification for adverting to the respondents' pleadings in the subsequent written statement, while deciding the matter. What is in issue between the parties is to be decided with reference to the previous written statement and not the one, which was placed on record subsequently without the Tribunal's permission. As we have already pointed out before, on 20‑7‑1992 it was not brought to our notice that written comments on behalf of the Department of Supplies are already there on record.

10. Apart from this aspect of the matter, we are of the view that the Upper Division Clerks and the Senior Clerks being in the same grade, should have been taken as incumbents of the same cadre while calculating the number of posts on the basis of 33% formula, to be placed in the selection grade. As already mentioned, the appellant was no doubt promoted as Senior Clerk, but he remained in the same grade with the same emoluments. This being so, mere change in designation was not enough to take him out of the cadre, so as to go out of reckoning at the time of calculation of the number of posts for selection grade.

11. Reference may be made with advantage to D.O. Letter No. 5.1.73 APC, dated 12‑9‑1973, which makes the following reading: "Consequent upon the abolition of classes amongst Government servants and the merger of all services and cadres in an unified service, it has been decided that in future all appointments, promotions etc., will be made in terms of grades as specified in the National Pay Scales i.e. Serial Nos. 1 to 15 concerning what was previously kn6wn as non‑gazetted employees. For this purpose, it has been decided to renumber Scales Nos. I to VII as 16 to 22 and Ministry of Finance is being requested to notify the same. As a new post of Secretary‑General has been created it will be assigned Grade No. 23. (2) It is requested that in future in all cases of appointments, promotions etc., the respective grades number should invariably be specified alongwith designations of the posts." In accordance with the spirit of this policy decision, the post of Senior Clerk as also that of the Upper Division Clerk should be taken to have belonged to one cadre. It is not possible to agree that the appellant who was admittedly senior to respondent No. 4, should have been made to suffer merely because he went with a different designation after the so‑called promotion of 6‑1‑1985. Seniority‑wise, he should have been placed in the Selection Grade in accordance with the provisions of paragraph 4(iii) of Office Memorandum, dated 1‑7‑1987 and we hold that the impugned order of 21‑9‑1988 involved a clear injustice.

12. Before taking leave of the matter, we may deal with the objections raised by respondent No. 4 in his written statement. He pleaded that Mr. Muhammad Ashraf, Senior Clerk and Mr. Rahat Akhtar, Upper Division Clerk were also awarded selection grade and that they should have been impleaded as necessary pies. The objection was that the appeal is bad for non‑joinder of necessary parties. Reference in support was made to Office Memorandum, dated 18‑1‑1989 whereby Mr. Muhammad Ashraf, Senior Clerk and Mr. Rahat Akhtar, Upper Division Clerk were placed in the selection grade with effect from 1‑7‑1987. We feel that the objection is superfluous because these officials were not placed in the selection grade by order-dated 21‑9‑1988, which is subject of challenge in this case. The order relied upon by the respondent was passed on 18‑1‑1989 and it was obviously not in the appellant's notice at the time of filing the appeal.

13. The objection regarding limitation is also without basis Respondent No. 4 was placed in selection grade by Office Memorandum, dated 21‑9‑1988: The appellant made a representation to the competent authority on 10‑10‑1988. The present appeal filed on 19‑1‑1989 was evidently within time and there is no substance in the objection regarding limitation.

14. For the reasons mentioned above, the appeal is accepted and the impugned order of 21‑9‑1988 is set aside with the direction that the appellant be considered for placement in the selection grade with effect from 1‑7‑1987 on the basis of seniority in BPS‑7. .

15. There will be no order as, to costs. Parties be informed accordingly. A.A./759/Sr.F Appeal accepted.