1991 PLP (C (PLC(CS))

It would appear that the Food Department issued the above Notification purporting to implement the judgment of Service Tribunal dated 29-4-1985 and that of Supreme Court dated 21-5-1986 upholding the said judgment of the Service Tribunal. It was contended by the learned counsel for the appellant that the above Notification was totally misconceived, as it was based on misreading and misunderstanding of the aforesaid two judgments. Elaborating his view point, the learned counsel made the following submissions; (a) That the appellant was neither impleaded as party in the respondent's case before the Service Tribunal and Supreme Court nor the respondent sought any relief against the appellant in the said case; (b) that the respondent's prayer in his appeal before the Service Tribunal obviously was that his seniority as Ward Rationing Officer be computed from the date of his initial appointment to the said post and not from the date of so-called regularization of his appointment under MLO-55; (c) That all that was approved by Service Tribunal and the Supreme Court in their respective judgments was that respondent's seniority as Ward Rationing Officer be reckoned from the date of his initial appointment; (d) That the appellant as District Food Controller could not be bracketed with the respondent who was holding the post of Ward Rationing Officer for the purpose of determination of their seniority regardless of both the posts being in Grade-16; (e) That the post of District Food Controller was superior to that of Ward Rationing Officer, as according to recruitment, rules the appointment to the first mentioned post used to be made by transfer of the senior-most incumbent of the latter post and by later amendment, the post of District Food Controller was to be filled by promotion from amongst the Ward Rationing Officers with three years' experience; (f) That separate seniority lists are to be prepared and maintained for the holders of the posts of District Food Controllers and Ward Rationing Officers, as these posts fall in different groups with difference in status, eligibility for the appointment and duties and functions performed by the incumbents of the said posts, (g) That the decision of the Service Tribunal reported as Yasinali Hashmi v. Chief Secretary, Sindh 1987 P L C (C.S.) 716 lends full support to the learned counsel's view. Taking up the argument at (a) above, reference may be made to para 13 of the memo of appeal wherein was pleaded as under: "The appellant and six others who had been promoted as District Food Controller were not impleaded and no relief against them was claimed, by the respondent No.3 in his aforesaid appeal at Annexure `R'. In reply to the above plea, the respondent in Para. 8 of his written statement stated thus. "Therefore, it was immaterial to implead the appellant as respondent in the said appeal." In the written statement filed on behalf of the official respondents the appellant's plea hereinabove was also admitted. We have also carefully perused the respondent's Appeal (No.5/1984) filed before the Service Tribunal. It clearly shows that neither the appellant was joined as party nor any relief was claimed against him. Accordingly the argument of the appellant's learned counsel at (a) above is fully borne out by the documentary proof. Therefore, we hold that the appellant was neither made a party nor any relief was sought against him in the respondent's litigation in respect of the seniority list dated 6th August, 1983 filed before the Service Tribunal. Coming to the learned counsel's argument at (b) above, we may revert to the respondent's memo of appeal filed before the Service Tribunal. Para 18 of the memo of appeal which relates to prayer comprises five clauses, from (a) to (e). For our purpose clause (c) is material which is reproduced as under:- "(c) After hearing the parties, direct/order the respondents Nos.1 and 2 to correct the appellant's seniority position in Grade-16 in the said final seniority list dated 16-8-1983 and accord him seniority at serial No.9 after the name of Mr. Sohrab Khan Kalwar, for all intents and purposes, with consequential and back benefits thereof to the appellant." On perusal of the impugned seniority list it would appear that the name of Mr. Sohrab Khan Kalwar is mentioned at S.No.8 and that of Mr. Muhammad Ismail Khan at S.No.9. From his prayer it is clear that he prayed for his name to be placed after the name of Mr. Sohrab Khan Kalwar; If he thought that he was senior even to the appellant he would have surely made prayer that his name should be placed above the appellant's name which was at S.No.1 in the impugned seniority list. However, the learned counsel for the respondent could not satisfy us as to why the respondent preferred to confine his claim of seniority to the 9th position in the seniority list. We are of the view that this was done purposely because the respondent was conscious of the fact that first seven officers including the appellant mentioned in the seniority list were in different group of civil servants namely District Food Controllers and ass such he would not be assigned seniority over them. As for the argument at (c) it is pertinent to refer to the operative part of the judgment of the Service, Tribunal. It runs as follows; "We accordingly direct that seniority list in question may be prepared afresh and the appellant may be placed in the list according to the date of his initial recruitment in BPS-16, irrespective of regularization of his appointment under MLO-55." It is an admitted position that both the posts of District Food Controller and Ward Rationing Officer are in Grade-16. Accordingly the names of District Food Controllers as well as those of Ward Rationing Officers art included in impugned seniority list which relates to all the Grade-16 officers of the Food Department. Since the respondent was holding the post of Ward Rationing Officer in Grade-16, the above direction of the Service Tribunal given in its judgment would be construed to mean that respondent's seniority as Ward Rationing Officer in Grade-16 would have to be reckoned from the date of his initial appointment to the said post and not from the date of regularization of his appointment under MLO-55. This interpretation of the judgment of the Service Tribunal is also in keeping with the respondent's own prayer which, as pointed out above, was that he be assigned seniority position at S.No.9 in the seniority list in question. The Supreme Court too, while dismissing the appeal against the judgment of the Service Tribunal obviously endorsed the above findings of the Service Tribunal. This brings us to the arguments at (d), (e) (f) and -(g) which may conveniently be discussed together. As disclosed in the impugned seniority list, it was prepared in pursuance, of rule 9(1) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred as the Seniority Rules). Rule 9(1) reads as under:- "In each grade in a department, there shall be a separate seniority list of a group of civil servants doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down." Our attention has been drawn to the S&GAD's Notification No.SOIX REG(S&GAD)2/1 /1-74, dated 24th April, 1985 whereby above rule was amended and the word "grade" was replaced by the word "cadre". The rest of the 'language used in the above rule has remained intact. After the said amendment "cadre" would be read in place of "grade". Of course the word `cadre' has wider' connotation. As defined in the Fundamental Rules, cadre means the strength of a service or a part of service sanctioned as separate unit. Despite the above amendment by which the word `cadre' has been inserted in place of the word `grade' still the rule 9(1) of the Seniority Rules required that in each `cadre' of the Department separate seniority list is to be prepared for a group of civil servants who are assigned similar duties/functions and possess the same eligibility for the appointment. Thus the said rule envisages one or more groups of civil servants included in each cadre of the Department. For instance Judicial Service Cadre, comprises four different groups namely District Judges, Additional District Judges, Senior Civil Judges and Civil Judges. For each group separate seniority list is to be prepared. In the instant case we are concerned with the Food Department. The impugned seniority list includes all officers of Grade-16 of the said Department. As such the officers of various designations who are in Grade-16 are included in the list. In fact the officers of the specified designation such as District Food Controller, Ward Rationing Officer etc. included in the list, form a separate group by themselves for the purpose of drawing up a separate, seniority list for such group provided their duties/functions and qualifications for the appointment are different from those of other group or groups of civil servants borne on the seniority list. In the above-reported case of Yasin Ali Hashmi, this Tribunal had examined the difference between the duties/functions of District Food Controller and Ward Rationing Officers. The relevant portion from the said reported case is reproduced as under:- "However, we are of the view that correct interpretation of the above rule is that every Government Department has to identify such group or groups of civil servants in each Grade, who are doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down and then prepare separate seniority list for each such group of civil servants. If the seniority list is prepared in the light of, above criteria, then as far as possible there shall be separate seniority list for the incumbents of the posts carrying the same nomenclature. In the instant case when the seniority list of 1983 was out, the appellant and respondent No.3 held the posts with different names even though both the posts were in Grade-16. The appellant was District Food Controller and the respondent No.3 was Ward Rationing Officer. If both these posts satisfied the requirements of rule 9(1) hereinabove inasmuch as that similar duties and functions were assigned to them and for appointment of their incumbents similar qualifications and experience were laid down then we see absolutely no justification to call these posts by different names. Elaborating the above argument further, we may point out that the appellant as District Food Controller was Incharge of whole of the District, whereas the respondent No.3 as Ward Rationing Officer was assigned rationing work of a ward which was only a fraction of the District. Therefore, unless the above rule for preparing seniority list is ignored or violated, combined seniority list showing inter se seniority of the appellant and respondent No.3 cannot be conceived. Accordingly we are clear in our mind that seniority list dated 15th August, 1983 has been prepared in flagrant violation of the mandatory rule mentioned above. So long the appellant and respondent No.3 held different posts carrying different duties and functions, they could not be shown in the same seniority list indicating therein the position of their inter se seniority." Apart from above the post of District Food Controller is superior in status inasmuch as that as per recruitment rules it was to be filled by appointing senior-most Ward Rationing Officer and by later amendment it was to be filled by promotion from amongst the Ward Rationing Officers. In this connection we may first refer to S&GAD's Notification No.SO-XVIII-4-2/59, dated 13th January, 1987 whereby `West Pakistan Food Department (Gazetted Posts) Recruitment Rules, 1963 were amended and the existing Appendix `A' was substituted by new Appendix `A' which required the post of District Food Controller to be filled by the method; "By selection on merit with due regard to seniority from among Ward Rationing Officers and Assistant Storage Officers with, three years' experience as such of the department in the Region where the vacancies occur: "Thereafter the next amendment in the said rules was promulgated by the Food Department's Notification No.SOF-(V)-2(7)/76, dated the 26th June, 1980 whereby the method, qualifications and other conditions for appointment to the posts in the Food Department were changed with prior concurrence of the S&GAD and Sindh Public Service Commission as per table appearing in the said notification. According to the said Table, the post of District. Controller was to be filled "by transfer of Ward Rationing Officers on the basis of seniority". That is to say senior most Ward Rationing Officer was made eligible for appointment in the post of District Food Controller. The recruitment rules were once again amended for the third time by Food Department's Notification No.SOF(V)/2(7)/76, dated 18th August, 1985 whereby the above amendment introduced in June, 1980 was modified and the post of District Food Controller was required to be filled "by promotion from amongst Ward Rationing Officers (BSP-16) with three years' experience as such". The latest amendment still holds the field. Thus the position that emerges from recruitment rules is that the status wise, District Food Controller certainly stands on higher footing, as compared to Ward Rationing Officer despite the fact that both the posts are placed in Grade

16. Unless separate seniority list is prepared for Ward Rationing Officers, necessary competition for selecting a suitable person from amongst them for promotion to the post of District Food Controller cannot be held. Even otherwise the consolidated seniority list of the incumbents of the above two posts would present an absurd situation inasmuch as that some Ward Rationing Officers who are lower in status than the District Food Controllers might be placed above the) latter on the basis of their earlier date of regular appointment as such Ward Rationing Officers. With a view to avoid all such difficulties in determination of inter se seniority of the officers of the Food Department, the said Department seems to have no other option but to draw up a separate seniority list for each group of officers performing the similar duties/functions and possessing the same qualifications for appointment as such officers. Precisely for above reasons this Tribunal has already held in the above-reported case of Yasin Ali Hashmi as under; "From above discussion it is clear that combined seniority list for posts of District Food Controller and Ward Rationing Officer is not legally valid being against the rules." For above reasons the respondent belonging to a group of Ward Rationing Officers could not claim seniority over the appellant who was included in- different group of District Food Controllers. Accordingly the impugned notification cannot be construed as correct implementation of the judgments of the Service Tribunal and the Supreme Court referred to in the said notification. We hold that the Food Department's Notification No.SOF(V)-1(26)/76, dated 5th October, 1986 issued prior to the impugned notification reflected the correct' interpretation of aforesaid two judgments and as such we restore the same in place of the impugned notification. As a result of above discussion the appeal is allowed with no order as to costs. Before parting with the case, we would like to make some observations for future guidance of the Department. In order to avoid unnecessary litigation indulged in by its officers the Department will invariably draw up a separate seniority list as required by rule 9(1) of the seniority rules, for each group of officers performing similar duties/ functions and having same eligibility for appointment to such group. Even if a single consolidated seniority list is desired to be prepared grade-wise or cadre-wise, such list will have to be divided into as many parts or sections as there are different groups of officers to be included in the list, and each such part or section will reflect the inter se seniority of officers of each group separately. M.Y.H./243/Sr.S Appeal allowed.