1995 PLP (C (PLC(CS))

Abdul Latif Ansari, A.A: G. for the Official Respondents. Date of hearing: 8th November, 199.1. MUNAWAR ALI KHAN (CHAIRMAN).‑‑‑in this appeal, the seniority list of the BPS‑18 Officers of the Nursing Cadre issued on 20th February, 1994 has been called in question. The appellant Mrs. Zarina Akhtar who is a Nursing Assistant Director claims to be senior to all the three private respondents, namely Mrs. Noor Safa, Nursing Deputy Director, Mrs. Ilmia Moghal, Nursing Assistant Director and Mrs. Kishwar Mushtaq, Principal Nursing Jinnah Post Graduate Medical Centre, Karachi. But in the impugned seniority list she has been assigned wrong position, as her name has been placed below the names of the said private respondents. The appellant's case is that she was appointed as Nursing Superintendent on regular basis by Health Department's Notification, dated 6th May, 1979. Accordingly her name appeared at S. No. 1 above the names of private respondents in the seniority list of Nursing Cadre dated 1‑7‑1985. The private respondents were shown junior to the appellant because their services in the relevant cadre were regularised on a later date i.e. 17‑10‑1981. However, in the subsequent seniority list issued on 20‑2‑1992 (impugned seniority list) which, according to the appellant, was arbitrary, capricious and void ab initio, her seniority position was down‑graded without giving her any prior notice. The appellant claims superiority in inter se seniority also on the ground that she was not only direct recruit but also held the administratively superior post of Nursing Superintendent. The appellant's further grievance is that as required by sub‑rule (1) of rule 9 of the seniority rules, separate seniority list of the posts of Nursing Superintendent was not compiled and hence she suffered a set back in the seniority position. Therefore, the appellant's prayer in that impugned seniority list be rescinded and in its ' place fresh seniority list of NPS‑18 Officers of the Nursing Cadre be prepared wherein the appellant's name be placed at S. No. 1, above the names of the three private respondents. We heard the arguments of Mr. S.R. Saeed Qureshi for the appellant, Mr. Abdul Aziz for private respondent Mrs. Kishwar Mushtaq Raja, Mr. Muhammad Aqil Awan for private respondent Mrs. Ilmia Mughal and Mr. Abdul Latif Ansari, AA: G. made his submissions on behalf of the official respondents. The private respondent Mrs. Noor Safia Mustafa who was unrepresented submitted arguments personally. With the assistance of the parties and their learned counsel we also examined all the relevant documents. It goes without saying that the appellant is not satisfied with the seniority position assigned to her in the seniority list of BPS‑18 Officers issued on 20th February, 1994 and therefore she has targeted the said seniority list in this appeal. Her grievance is that even though she is senior to all the three private respondents, yet she has been assigned seniority position below their names. Accordingly she has prayed that the said seniority list be cancelled and in its place fresh seniority list be prepared in which her name be placed above the names of the private respondents. It is an admitted position that the appellant as well as the private respondents have been inducted in BPS‑18 by promotion. As provided in subsection (4) of section 8 of the Sindh Civil Servants Act, 1973 (hereinafter referred as the said Act) "seniority in the grade to which a civil servant is promoted shall take effect from the date of a regular appointment to a post in that grade: provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to higher grade, retain the inter se seniority as in the lower grade." Precisely the above legal position as to determination of inter se seniority has been spelt out in the Civil Servants (Promotion, Confirmation and Seniority) Rules, 1975, (hereinafter referred as the seniority rules. We were shown the minutes of the Departmental Promotion Committee's meeting held on 10‑10‑1988 wherein the appellant and the two private respondents namely Mrs. Noor Sofia and Mrs. Ilmia Mughal were cleared for promotion in the available vacancies and the third private respondent Mrs. Mshwar Raja though approved for promotion, yet she was kept on waiting list obviously until availability of the clear vacancy. Following the clearance by the D.P.C. hereinabove the formal promotion order was issued vide Health Department's Notification, dated 31st October, 1988. In this order the name of private respondent Mrs. Kishwar Raja was missing. In the impugned seniority list too the appellant and aforesaid two private respondents are shown to have been promoted to BPS‑18 on 31‑10‑1988 whereas the private respondent Mrs. Kishwar Raja is shown to have been promoted to the said BPS‑18 with effect from 14‑1‑1989. Thus the entry of the last mentioned private respondent in BPS‑18 was later than that of the appellant and other two private respondents. Consequently she would rank junior to them in the BPS‑18. , As for the inter se seniority of the appellant vis‑a‑vis the other two private respondents, the date of their induction in BPS‑18 being the same (i.e. 31‑10‑1988), it would be determined in the light of proviso to subsection (4.) of section 8 of the said Act and 11 (b) of the seniority rules. That is to say they will retain their inter se seniority in the lower grade. In this connection reference may be made to the Supreme Court Authority reported as Rustam Khan v. Government of Nr‑W.F.P. (1995 .MR 957) where in the above rule has been interpreted and reaffirmed by‑the Supreme Court. As indicated in column 8 of the impugned seniority list, the date of their induction (i.e. induction of the appellant and the said two private respondents) in BPS‑17 also happened to be the same namely 17‑10‑1981, as the posts of BPS‑16 held by them were simultaneously upgraded to BPS‑

17. Therefore, once again their inter se seniority in lower grade BPS‑16 would have to be taken into account for determining their seniority in present cadre of BPS‑

18. The date of their promotion/appointment in BPS‑16 have been mentioned in column 7 of the impugned seniority list. Obviously the appellant entered the said BPS‑16 later (i.e. on 6‑5‑1979) than the entry of the said two private respondents in the said BPS‑

16. It would appear that Mrs. Noor Sofia and Ilmia Mughal were inducted in BPS‑16 on 15‑6‑1958 and 8‑3‑1969 respectively. As such according to the entries made in the impugned seniority list, the said two private respondents were senior to the appellant in BPS‑16 and therefore they would also rank senior to her in BPS‑

18. However, the appellant's learned counsel attempted to show that the appellant was senior to the said two private respondents in BPS‑

16. His first argument was that she had entered that grade by initial recruitment whereas the respondents were inducted in the said cadre by way of promotion. This argument was absurd on face of it. A direct recruit is in no way superior to promotee so that she should be accorded any preference in seniority. On the contrary as provided in rule 11(c) of the seniority rules, if direct recruit and promotee are appointed in a batch or on the same date, the promotee shall rank senior to the direct recruit. The next argument of appellant's learned counsel was that in BPS‑16, the appellant's post of Nursing Superintendent was superior to other posts in the said BPS‑

16. This argument too was devoid of any force. All posts included in any particular cadre are considered equal for the purpose of determination of inter se seniority of the holders thereof and no post has an edge over any other post of the same cadre regardless of the dudes and functions allocated to each post. Having failed to impress us by above arguments, the appellant's learned counsel came out with still one more argument. While elaborating that argument, he referred us to sub‑rule (1) of rule 9 of the seniority rules, contending that separate seniority list of Nursing Superintendents in BPS‑16 was required to be prepared and in that eventuality seniority position of his client in BPS‑16 would have improved and she would have been placed at S. No.1. This argument was irrelevant because we are not called upon to decide in this appeal if the seniority list of BPS‑16 was compiled in accordance with the rules. All that we have to determine is if the seniority assigned to the appellant in the impugned seniority list was correct. According to the Health Department's latest Notification, dated 22nd May, 1985, prescribing the eligibility for the post of Chief Nursing Superintendent (BPS‑18), Nursing Superintendent/Tutor Sister possessing diploma in teaching and diploma in Ward Administration were eligible for promotion to the said post. The said two private respondents like the appellant possessed the requisite eligibility. This was confirmed by the fact that all the three of them were promoted as Chief Nursing Superintendent (BPS‑18). The only point that remained to be ascertained was their seniority position in BPS‑

16. Assuming for the sake of argument that if separate seniority list of Nursing Superintendents had been prepared and the appellant would have teen placed at S. No. 1 in that list, such exercise by itself would not have given her any edge over the two private respondents in seniority in BPS‑

16. In absence of common/joint seniority list of BPS‑16 Officers, the parties' seniority in the BPS‑16 for the disposal of this appeal would still be computed from the date of their entry (regular appointment) in said BPS. As already stated their dates of entry in BPS‑16 are mentioned in column 7 of the impugned seniority list. The private respondents have entered the said BPS on 15‑6‑1958 and 8‑3‑1969 whereas the appellant's entry in that BPS was on 6‑5‑1979. Accordingly the two private respondents were senior to the appellant in BPS‑

16. Consequently they would rank senior to the appellant even in BPS‑

18. Lastly the appellant's learned counsel invited our reference to the so?-called seniority list of Nursing Superintendents/Tutor Sisters etc. (BPS‑17) as it stood on 1‑7‑1985 wherein the appellant's name was placed at S. No.1 and the names of private respondents appeared at S. No. 6 (Mrs. Noor Sofia), S. No. 12 (Mr. Ilmia Moghal) and S. No. 14 (Mrs. Kishwar Raja). First of all the respondents, both of official as well as private, have categorically disputed the existence of any such seniority list. Even otherwise, there being no covering letter, it is not known when that seniority list was made public. It comprises of two loose papers neither bearing any stamp nor any other authentication. Moreover, it has been controverted by the Health Department's own Notification, dated 5th January, 1984 which was produced by the appellant's counsel in course of his argument in Court. According to that Notification the appellant was allowed BPS‑17 with effect from 17‑10‑1981. But in the so‑called seniority fist of BPS‑17 Officers, the appellant's name being at S. No. 1 had obviously entered the said BPS‑17 on 6‑5‑1979. Thus, the date of the appellant's entry in BPS‑17 in the said unauthorised seniority list was not only in conflict with above Notification but was also inconsistent with entries made in the impugned seniority list. Furthermore, it is appellant's own admission that her post in BPS‑16 was upgraded simultaneously with upgradation of the private respondents' posts of BPS‑16 on the same date i.e. 17‑10‑1981 to BPS‑

17. It is also her admission that her services as Nursing Superintendent (BPS‑16) were regularised, on 6‑5‑1979 as per Health Department's Notification dated 6‑5‑1979. Thus, the said date was the date of appellant's entry in BPS‑16 and not BPS‑17 and as such the so‑called seniority list of BPS‑17 Officers stood completely belied. The upshot of the above discussion is that excepting the private respondent Mrs. Kishwar Mushtaq who though cleared by the D.P.C. for promotion to BPS‑18 simultaneously with the appellant and other two private respondents yet was installed in BPS‑18 post on later date i.e. 14‑1‑1989. Obviously due to non‑availability of such post, and therefore, would rank junior to the appellant and other two respondents in the cadre of BPS‑18, the other two respondents namely Mrs. Noor Sofia and Mrs. Ilmia Mughal being senior to the appellant in BPS‑16 would also rank senior to her in the cadre of BPS?

18. The appeal is disposed accordingly with no order as to costs. H.B.T./591/Sr. S????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.