2003 PLP (C (PLC(CS))

He finally submitted that the Federal Service Tribunal and the Hon'ble Supreme Court of Pakistan held same view on this point of law. He said time bar plea was not sufficient it needed counter‑plea in view of 1995 SCMR page 1023. The A.A.‑G. generally confined himself to the written statement of the respondents. It was not denied that the appellant was a S.P.S.C. selectee. He, however, argued that since, the appellant failed to join his new cadre of S.O. within stipulated, time of 15 days, his appointment order was rightly cancelled. He further argued that in correspondence with S&GAD, he had not taken the plea that he was not relieved by the Principal L.M.C./Health Department but that 'his father was sick' vide his two applications dated 29‑4‑1989 and 4‑7‑1989. He also asserted that the citations quoted are not 'prima facie' applicable by the appellant's case as per their gist read out by the counsel for the appellant. He was of the opinion that the appellant was not entitled to any relief and this appeals tray be dismissed. We have gone through the arguments of both the sides carefully as well as the written arguments of the Advocate for the respondent No‑6, submitted 12 days after the final hearing/judgment had already been reserved (both days inclusive), citations quoted perused the documents submitted. It is worthwhile to note that out of 20 private respondents (S.Nos.4 to 23 both inclusive), only respondents Nos.4 and 6 have filed their written statements. Even these two and their Advocate failed to appear before us on the final hearing without any intimation or plausible explanation, which could easily lead to the only presumption that they had nothing to say in the matter. The written arguments submitted on behalf of respondent No.6, are afterthought only without proper explanation of delay, by any cogent/plausible explanation. The only ground taken is 'due to unavoidable circumstances' which is too vague. Such acts are rather odd and undesirable after judgment had already been reserved on 19th November, 1998. Without prejudice to such assumption or presumption, we are of the considered view that the provisions of Sindh Civil Servants Act, 1973 and Sindh Civil Servant (Probation, Confirmation & Seniority) Rules, 1975, relevant laws reproduced below are quite clear on the subject of seniority. Seniority in the said Act is dealt with in section 8 reproduced below:‑‑ "8(1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, 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 grade, whether serving in the same department or office or not as may be prescribed. (3) Seniority on initial appointment to a service grade or post shall be determined as may be prescribed. (4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment in that grade: Provided that civil servants who are selected in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade." What is most significant in Proviso to this section is the civil servants, if selected in one batch even on their promotion shall retain inter se seniority as in the lower grade." The provisions relating to the seniority are contained in PART‑III Seniority of the said Seniority Rules, from rule 9 to rule

13. Under rule 9(2) the seniority list is required to be framed in the month of January every year. The use of the word 'shall' in the said sub‑rule has a mandatory effect. (Unfortunately, due to known red tapeism/lethargy of the concerned departmental officials, this provision of law is not complied with in letter and spirit causing grave injustices, occasionally. The spirit of law behind the' words in January, every year is that it should be a regular exercise, which will ensure removal of mistakes of fact or law through objection, judicious hearings, decisions thereof so that it is 'free from error'. When seniority list, are not drawn annually, as required, it result in undue promotions, departmental representations and service appeals, not only delaying the due rights and the process of law but encumbering departmental appellate authority as well as Service Tribunal, unnecessarily. This aspect needs to be taken care of in right earnest. The counsel for the appellant pointed out that only two seniority list of S.Os., have been circulated so far from 1988 to 1998 i.e. in 10 years. Naturally, this omission could result in precipitating or perpetuating the grievance of aggrieved persons, resulting in hardships to them monetarily and otherwise too. In rule 11 (a) of Seniority Rules, it is clearly laid down that 'in case of persons appointed' but initial recruitment, in order of merit assigned by the selection authority'. In the case of ten (10) S.Os. selected by S.P.S.C. through competitive examination held in March/April, 1988, their inter se seniority shall remain as determined in their order of merit, determined at the time of their selections, irrespective of their dates of joining. Counting their seniority from the dates of their joining, does not appeal to reason and logic. Their appointment orders were issued from S&GAD located at Karachi. Their posting orders are despatched through registered post. They are obviously residents of various District. Their dates of receipts may vary from place to place. In, the case of persons, already in Government service, their joining could be further delayed till they are actually relieved by their appointing authorities. In case of the appellant who was a Demonstrator at L.M.C. Jamshoro, his appointing authority was Secretary Health (with the approval of the Minister) and orders have to come from Health Department through proper channel/his immediate controlling authority being the Principal L.M.C. Even, after receipt of the orders from Health Department, his actual relieving was subject to issuance of an L.P.C. handing over charge to some one notified to do so etc. Lastly, the words "from the date of joining duties" are not available in section 8 of the said Act or rules 9 to 13 of the said Rules. It is an accepted principle of Interpretation of statutes that one has to confine himself to the actual use of words by the Legislature/law framing authority and no addition can be made therein of 'ones' own words. This is the reason why the Superior Courts/Tribunals are of the view that use of such words is not in accordance with the laid down laws/rules on the subject of seniority. This being the legal position, in our considered view, the words "He will get his seniority in the cadre of Section Officer, from the date of his assumption" in the last line of para. 1 of Notification No. SOX(S&GAD)3‑94/88 dated 31‑7‑1989 have no legal basis or rationale and have to be deleted, being not provided under relevant laws/rules on the subject of seniority of commission selectees and in whose case the only criteria prescribed is the order of merit as assigned by the Commission. This seniority on subsequent promotion even if delayed, is protected under the provisions of rules 13 of the said seniority rules, (unless properly superseded, in accordance with law). We are of the firm view that in case of the appellant the delay in his late joining to post of S.O. was not his own ‑‑‑ there being three applications from him. One to Principal L.M.C. who did not relieve him in time and two applications from him as pointed out by the Assistant Advocate‑General from his record (on account of illness of his father). If such delays were not properly accounted for S&GAD would not have withdrawn its earlier notification dated 4‑1‑1989, cancelling his appointment as Section Officer and that too on the previous terms and conditions. In view of what has been stated above, we are left with no other option but to delete the words. "He will get seniority in the cadre of Section Officers from the date of his assumption" in Notification No. SOX(S&GAD)3‑94/88, dated 31st July, 1989. Consequently in the seniority list the appellant would be placed below his immediate senior (Mr. Farooq Azam Memon Serial No.4 in merit list of Sindh Public Service Commission Serial No.75 in the impugned seniority list of Section Officers as stood on 12‑12‑1994 and above, Mr. Muhammad Nawaz Shaikh Serial No.6 in the merit list of Sindh Public Service Commission and at Serial No.76 in the said impugned seniority list by insertion of Serial No.75‑A). There are no orders as to the costs. Announced in open Court this 18th day of December, 1998 at Karachi. H.B.T./43/K (S. Trib) Appeal allowed.