2007 PLP (C (PLC(CS))

JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).--This appeal under section 4 of Sindh Service Tribunals Act, 1973, has been moved on behalf of appellant praying for his absorption in B-18 w.e.f. 12-11-2003 under Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.

2. Facts in nutshell giving rise to the present appeal are that appellant was serving as Manager (Corporate Affairs) in B-18 in Sindh Sugar Corporation. He along with many others was declared surplus as per Notification dated 3-10-2002 and was placed in the surplus pool of S&GAD. Subsequently, vide order, dated 12-11-2003 issued by the Services and General Administration, Department, appellant was absorbed as Administrative Officer in B-17 in the Directorate of Accounts and Inspection, Finance Department Sindh, under Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. Being dissatisfied within his absorption in B-17 instead of B-18, appellant preferred departmental appeal to the Chief Minister, Sindh and on getting no response within stipulated period of 90 days, appellant has filed the instant appeal.

3. Heard learned counsel for the parties and perused the material placed on the record.

4. Learned counsel for the appellant contended that before being declared surplus, appellant was holding post of the Manager (B-18) in the Sindh Sugar Corporation, therefore, under Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, appellant was entitled to be absorbed/appointed to a post of equivalent or comparable basic scale and if such post is not available, then to a post of lower basic scale. He stated further that one post of Administrative Officer/Deputy Director (Adm.) in B-18 was lying vacant in the Culture and Tourism Department for Sindh Colleges of Arts and Design at Hindu Gymkhana, Karachi and as per letter dated 27-12-2002 of Culture, Tourism, Sports and Youth Affairs Department, Karachi addressed to Services, General Administration and Coordination Department, Karachi, amongst six officers only the appellant was found fit and eligible for the post of Administrative Officer/Deputy Director (Adorn.) in B-18, but instead of absorbing against the said vacant post, appellant was absorbed as Administrative Officer in B-17 in the Directorate of Accounts and Inspection, Finance Department. He also stated that appellant's one of colleagues namely Pir Saifullah, although junior. to appellant, was absorbed as Deputy Director (B-18) in the Directorate of Manpower and Training Sindh, but appellant was discriminated and despite being senior he was absorbed against the post of lower scale. He, therefore, prayed that impugned order, dated 12-11-2003 of appellant's absorption as Administrative Officer (B-17) may be set aside and he may be absorbed against the post of B-18 under Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.

5. In rebuttal, learned Assistant Advocate-General has argued that as a matter of fact post of B-18 was not lying vacant and in terms of clause (ii) of Rule 9-A, if a post of equivalent or comparable basic scale is not available, then the incumbent can be appointed/absorbed to a post of lower scale, therefore, no injustice has been meted out to the appellant. She stated further that for absorption of surplus staff, it is not a requirement that they must be absorbed according to their seniority.

6. We have considered the above submissions and perused the case papers. Learned counsel for appellant has placed much stress upon Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, which for the sake of convenience is reproduced herein below:-- "9-A. Notwithstanding anything contained in these rules, a person who has been rendered surplus, on account of abolition of a post he was holding in any office or department of the Government or any autonomous body or, on account of permanently taking over the administration of such autonomous body wholly or partially by the Government, may be appointed to any post in any department or office of the government, provided that-- (i) Such person possesses such qualifications as are laid down under rule (2), for appointment to such post. (ii) Such person shall be appointed to a post of equivalent or comparable Basic Scale and if such post is not available, then to a post of lower Basic Scale. (iii) Seniority of such person in the new cadre shall be reckoned from the date of appointment in the cadre; and (iv) Previous service, if not pensionable, shall not count for pension and gratuity unless Government directs otherwise." Clause (ii) of rule 9-A (ibid) specifically lays down that a "person shall be appointed to a post of equivalent or comparable Basic Scale" and if such post is not available then "to a post of lower Basic Scale" is to be resorted to. The appellant was absorbed against the post of Administrative Officer in Basic Scale-17, for the reason that there was no post of Basic Scale-18 lying vacant. Thus, in our considered view appellant was rightly absorbed in Basic Scale-17 in accordance with clause (ii) of Rule 9-A (ibid). Contention of appellant's counsel that one post of Administrative Officer/Deputy Director (Adorn.) which was in Basic Scale-18 was lying vacant in the Culture and Tourism Department and that appellant was also found fit and eligible for the said post, as per letter dated 27-12-2002, has no force. Perusal of letter, dated 27-12-2002 reveals that such post at the relevant time was not vacant but S.N.E. proposal, obviously for creation of new post of Administrative Officer in Basic Scale-18, was submitted which was not finalized. Next contention that appellant's colleague namely Pir Saifullah who was junior to appellant was absorbed as Deputy Director in Basic Scale-18 in the Directorate of Manpower and Training Sindh, but appellant was ignored and discriminated, has also no force for the simple reason that there is no rule that the staff from surplus pool shall be absorbed in other departments according to seniority.

7. For the aforesaid reasons, we find no merit in the appeal, which is accordingly dismissed, leaving the parties to bear their own cots.

8. Announced in open Court. H.B.T./3/SST Appeal dismissed.