1991 PLP (C (PLC(CS))

5.???????? Mr. Sher Muhammad Khan. 6.???????? Mr. M. Altaf Elahi. 7.???????? Mr. Saghir Ahmed. 8. ??????? ?Mr. Abdur Rehman Qureshi. 9.???????? Mr. Ghulam Mohiuddin??????????????????????????????????? 10.?????? Mr. Tariq Pervez. 11.?????? Mr. M. Yasin Baig.????? 12. ????? Mr. Sh. Muhammad Saeed. In their support they have also quoted the provision to Sec. D-94 of the Civil Servants Act, but the Committee was of the view that the provision m question was not relevant to the point at issue. The Committee noted that the position of all the 14 officials, whose seniority has been challenged, had been examined by the Committee in detail in its meeting held on 20-1-1981. The minutes of that meeting were read out by the D.I.P. personally before the Superintendents who appeared for personal hearing, in order to convince them that each and every case had been examined thoroughly before taking the decision. Since the officials concerned did not put forth any other grounds after hearing the details read out to them, the Committee decided that the decisions taken in its meeting held on 20-1-1981 should stand. The representation of Mr. Maqbool Ahmed Khan was also identical and the Committee was of the view that it was also not worthwhile to call Mr. Maqbool Ahmed Khan for personal hearing." The decision taken in the case of the appellant was communicated to him under No. 10/2/1986-Admn (K), dated 20-1-1987. The department has also taken legal objection that the appellant has filed the appeal without preferring departmental appeal and it is, therefore, not maintainable.

5. The case of the respondent No.4 in his written objections, in nutshell, is that he was senior to the appellant as LDC as well as UDC and he was entitled to promotion as Superintendent earlier than him but he was denied that promotion erroneously and the case of his promotion was reconsidered on his promotion and he was given due promotion and, therefore, he was assigned seniority as a Superintendent he was due for. He has raised the plea that the appeal is time-?barred.

6. The respondent No.5 also has taken the plea that he was senior to the appellant as UDC and question of his seniority as Superintendent was re-settled and he was allowed presumptive seniority in the grade of Superintendent with effect from 6-2-1973 and he is, therefore, senior to the appellant.

7. The respondent No.6 has stated that he is senior to the appellant as he was promoted as a Superintendent with effect from 6-1-1973 whereas the appellant was promoted as Superintendent with effect from 26-4-1973.

8. The respondents Nos. 7, 10 and 12 have stated that they were senior to the appellant as UDCs but their promotion to the grade of Superintendent was withheld on account of certain departmental inquiry proceedings pending against them and in the meanwhile the appellant was promoted and they were subsequently exonerated from the departmental inquiries and they were entitled to restoration of their original position in the seniority list.

9. The respondent No.8 has stated that he was promoted as a Superintendent on 6-2-1973 and he actually joined the job at the Regional Passport Office, Quetta, but he was reverted later and was again promoted as a Superintendent on 21-5-1974 and his original seniority as a Superintendent was restored subsequently on his representations.

10. The respondent No.9 has stated that he was senior to the appellant as UDC and yet he was promoted as a Superintendent late and his seniority was maintained on his representation.

11. The respondent No.11 has not filed written objections.

12. The respondent No.13 has stated that he was appointed as a Superintendent with effect from 16-2-1973, whereas the appellant was promoted as a Superintendent with effect from 26-4-1973 and, therefore, he (the respondent No.13) is senior to the appellant.

13. The respondent No.14 has stated that he was promoted as a Superintendent with effect from 22-2-1973 and he was senior to the appellant who was promoted as a Superintendent with effect from 26-4-1973.

14. The appellant's claim for seniority is based on the date of his promotion as a Superintendent with effect from 26-4-1973 and that fact is supported by the order of his promotion dated 26-4-1973 (Annexure'A'). However, the date of his appointment as Superintendent as mentioned in the impugned seniority list is 8-5-1973. This variation of dates seems to have occurred on account of the different dates of the order of his promotion and the event of his taking over the charge as the Superintendent. His contention is that the respondents Nos.4 to 12 were promoted as Superintendents on subsequent dates and, therefore, they had to rank junior to him in the seniority list. The factual position of the promotions made by the department is reflected in the minutes of the meetings of the Departmental Promotion Committee held on 20-1-1981, 21-9-1981 and 16-5-1982, the extracts of which have been reproduced above. Full copies of the minutes of the meetings of the DPC have not been produced before us. It appears from the extracts of the minutes of the meetings of the DPC, referred to above, that the cases of only three respondents, namely Riaz Ahmad (R-4), Ghulam Mohiuddin (R-11) and Tariq Parvaiz (R-12) were considered for promotion at the meeting of the DPC held on 20-1-1981 and they were allowed presumptive seniority from the dates their juniors were promoted for the reasons stated therein. These three respondents have, therefore, been restored to their original due seniority on the basis of their seniority as UDCs and the appellant has no case to claim seniority over them in view of the general principles of seniority contained in Office Memorandum No.1/16/69-D.II, dated 31st December, 1970 (published as S.No.158 at pages 152 to 154 of ESTACODE, 1983 edition) providing that where in a single reference, the Selection Board/DPC are asked to recommend more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc., or for reasons beyond control of the persons concerned, the recommendation of the Selection Board/DPC in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendation in respect of the original batch was made.

15. As regards the other respondents Nosy to 10, it is indicated in the minutes of the meeting of the DPC held on 16-5-1982, reproduced above, that their cases also were examined by the DPC in detail in the meeting held on 20-1-1981 but there is no such mention in the extract of the minutes of the meeting of the DPC held on 20-1-1981. Their cases have, therefore, to be examined on the basis of their respective pleas taken in the written objections. The case of respondent No.5 (Sher Muhammad) is that his promotion as Superintendent was initially made with effect from 11-5-1973 but it was ante?dated to 6-2-1973 on account of restoration of his seniority amongst the UDCs with effect from 9-3-1963 as per office order No.216 dated 30-8-1973, a copy whereof is Annexure 'F to his written objections. In view of this documentary evidence, this respondent is, therefore, entitled to reckon his seniority from 6-2-1973 which is earlier than the date of the promotion of the appellant and he has rightly been placed above the appellant in the seniority list.

16. The case of respondent No.6 (Muhammad Rasool Khan) is that he was promoted as Superintendent with effect from 6-1-1973 and, therefore, he was senior to the appellant. He has not filed any document in support of the date of his promotion. Of course, it is mentioned in the impugned seniority list that he was given presumptive seniority with effect from 6-1-1973, but there is no evidence as to under what circumstances his supersession by the appellant was revised and he was given presumptive seniority from 6-1-1973. In the absence of such evidence, he is to rank in the seniority list below the appellant.

17. The contention of the respondent No.7 (Muhammad Nawaz) is that he was promoted as Superintendent on 6-2-1973 vide office order dated 6-2-1973 but he was not relieved to join the new assignment and in the meantime he was sent on forced leave till finalisation of inquiry proceedings against him and he was exonerated later and posted as a Superintendent on 6-7-1974. His plea is supported by copy of the office order dated 6-2-1973 (Annexure 'B' to his written objections); a copy of Memorandum dated 20-2-1973 (Annexure 'C' to the written objections), whereunder he was sent on forced leave; and a copy of office order No.159 dated 6-7-1974 of his promotion as Superintendent (Annexure 'E' to the written objections). It appears from the documents referred to by him that order of his promotion as Superintendent was actually issued on 6-2-1973 but he was required to proceed on forced leave vide order died 26-2 1973, before his taking over as the Superintendent as the order mentions him as UDC and he was taken back on duty as UDC on 4-7-1974, as per order dated 4-7-1974 (Annexure `D' to his written objection) and order of his promotion was issued two days later i.e. 6-7-1974. It appears from the order dated 4-7-1974 that he was exonerated of the charges which were levelled against him. Thus, he is entitled to reckon his sonority when the order of his promotion was issued first time on 6-2-1973 and he would stand senior to the appellant.

18. The case of the respondent No.8 (Muhammad Altaf Ilahi) is that he was initially promoted as a Superintendent on 6-2-1973 and he actually joined the job at Regional Passport Office, Quetta but he was reverted later and was again promoted as a Superintendent on 21-5-1974 and his original seniority as the Superintendent was restored subsequently on his representations. He has not filed any documentary evidence to bear out that his promotion as Superintendent was restored to the date of his initial promotion viz. 6-2-1973. In the absence of such evidence, he would reckon his seniority from 21-5-1974 which would be subsequent to the date of the promotion of the appellant and he would, therefore, rank junior to the appellant in the seniority list

19. The respondent No.9 (Saghir Ahmad) has stated that he was senior to the appellant as UDC and yet he was promoted as Superintendent later and his seniority was restored on his representations. He has not tiled any document in support of his contention that he was allowed seniority on the basis of his seniority as UDC. He is, therefore, to rank junior to the appellant in the seniority list as having been promoted later.

20. The contention of the respondent No.10 (Abdur Rehman Qureshi) is that he was senior to the appellant as UDC but his promotion was deferred as he was placed under suspension from 18-i1-1972 to 30-6-1974 in a departmental inquiry and his juniors were promoted during that period and he was ultimately exonerated from the departmental inquiry and he was promoted as a Superintendent with effect from 26-7-1974. The date of his promotion was subsequent to that of the appellant. His plea that his seniority amongst the Superintendents was restored to the date he would have been promoted had he not been suspended has not been substantiated. He has not filed any order in support of his plea. He would, therefore, claim his seniority with effect from 26-7-1974 and would rank junior to the appellant.

21. The cases of respondents 11 and 12 have already been discussed above along with that of respondent No.5.

22. The dispute of appellant's seniority vis-a-vis that of the respondents 13 and 14, namely Shamshad Ali Khan and Ch Atta Muhammad, rests on different premises. Both these respondents were appointed directly on 16-2-1973 and 20-2-1973 respectively, whereas the appellant's promotion order was issued on 16-4-1973. By chronological order, they stand senior to him. However, the appellant has raised the plea of seniority over them challenging the very nature of their appointment by way of direct recruitment on the ground that they could not be appointed by direct appointment. It has been conceded by the department that there was snag in their direct appointment but scrutiny of their appointments was excluded from the purview of Section 12-A of the Civil Servants Act, 1973 and, therefore, they were deemed to have been appointed regularly. Be that as it may, the appellant did not challenge their appointments at the relevant time and they would reckon their seniority from the dates of their appointment until their appointments stand intact and, therefore, he has no case to subjugate their seniority below him.

23. It follows from the above analysis of the cases of the appellant and the respondents that the respondents Nos.4 to 12 were senior to the appellant as UDCs but their promotions to the posts of Superintendents were later in time than that of the appellant, for one reason or the other; and the respondents 5 & 7 were given seniority on the basis of their seniority as UDCs, as discussed above; while the respondents 6, 8, 9 & 10 have not furnished evidence that their seniority too was restored on the basis of their seniority as UDCs. As regards the seniority I of the appellant vis-a-vis the respondents 13 and 14, the two respondents were appointed directly as Superintendents earlier than the promotion of the appellant as the Superintendent and therefore, they stand senior to him in the seniority list unless their very appointments were challenged.

24. The respondents 1 to 3 who are the Government functionaries have put forth legal objection that the appellant has preferred the appeal without exhausting the remedy of departmental appeal and, therefore, his appeal is not maintainable. The appellant has preferred this appeal against the order dated 20-1-1987 on his representation dated 17-3-1985 addressed to the Director, Immigration & Passports. Of course, he did not prefer departmental appeal to any higher authority and directly filed the appeal before the Tribunal. The appellant's representation was for determination of his seniority and such matter' does not fall within the purview of Rule 4 of the Civil Servants (Appeal) Rules, 1977?, providing as to is which cases a civil servant shall be entitled to file a departmental appeal. The appeal, therefore, does not stand hit by proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973.

25. The most of the other respondents have raised the question of limitation contending that the appeal filed in the year 1987 against the seniority list published in 1981 is time-barred. The appellant has stated that he did make representation against the seniority list of 1981 in January, 1982 and while it was pending, he was compulsorily retired from service and he was reinstated in service on 22-9-1984 after the order of his compulsory retirement was set aside by the Tribunal in his appeal No.17(R) of 1983; and he again made representation on 17-3-1985 and orders thereon were communicated to him under Memorandum dated 20-1-1987 and he preferred this appeal on 21-2-1987. It has been urged on his behalf that the appeal was filed within the period of limitation under the aforesaid circumstances. The appeal filed on 21-2-1987 challenging the order dated 20-1-1987 is, therefore, within the period of limitation.

26. In the result, the appeal is allowed to the extent that the appellant shall rank senior as Superintendent to the respondents Nos.6, 8, 9 and 10, while it stands dismissed in respect of the other respondents. M.Y.H./570/Sr.F ??????????????????????????????????????????????????????????????????? Appeal partly allowed.