1989 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).--This case arose from the facts which are briefly narrated as follows: The appellant as well as two respondents namely Dr. Nooruddin Oureshi and Dr. Faiz Muhammad Memon were selected by the Public Service Commission in the same selection held on 14-10-1984. In order of merit the appellant was assigned place at S.No. 238 whereas the names of above two respondents appeared at S.No. 244 and S. 275 respectively. Consequent upon the said selection they were inducted in Class II posts which were subsequently raised to Class I Junior (Grade-17). The appellant continued to work in that capacity until 12-5-1972 when he was retired under M.L.R.

114. On 29th June, 1978 when he was reinstated in service under M.L.O. 23 he was serving in Saudi Arabia. On his request the period of his service outside the country was allowed to be treated as deputation. Meanwhile in 1976, 40% of Grade-17 posts of doctors which worked out to 285 posts were upgraded to Grade-18 retrospectively w.e.f. 1-10-1974. The appellant's case is that the post held by him at the time of his retirement was included in the upgraded posts. By the time of his reinstatement in service only 220 upgraded posts were occupied by adjustment of Medical Officers against them. Despite that the appellant was reinstated in Grade-17 post, though on his return from deputation he was posted in Grade-18 post in his own pay and grade. However, in the civil list of 1978, his name was mentioned amongst the Medical Officers of Grade-18. Subsequently in the seniority list of Medical Officers of Grade-18 issued on 22nd April, 1981 his name appeared at S. No. 38 and the names of aforesaid respondents were mentioned at S.Nos. 40 and

42. While circulating the said seniority list though objections were invited against the same, yet not a single Medical Officer shown junior to the appellant in the list came forward to file any objection. Thus the said seniority list, for all purposes became final. On the basis of that very seniority list, the said two respondents were promoted to Grade-18, ignoring the appellant. The appellant made representation to the Secretary, Health Department but he received no response from him. He then addressed his representations to the Chief Minister through proper channel but the same were not forwarded to him by the Secretary, Health Department. However, when he pressed for decision on his representation, the Secretary, Health Department rejected his claim of seniority vis-a-vis the said respondents by his order dated 28-8-1986. Nonetheless the appellant went in appeal against the said order to the Chief Secretary but without any result. The appellant left with no other alternative, filed the present appeal before this Tribunal on 17-1-1981. The arguments of the parties' learned counsel were heard elaborately. We also went through the documents relied upon by the parties carefully. The appellant's prayer is to the following effect: "It is, therefore, prayed by the appellant that this Honourable Tribunal may be pleased to call for the record of service of the appellant and relevant documents and after perusal thereof set aside the order dated 28th August, 1986 passed by the respondent No. 1 and treat the order dated 3rd September, 1984 as redundant and not existing in the eyes of law and direct that the appellant is entitled to place of seniority among Grade-18 Medical Officers as determined by seniority list on page 3 serial No. 38 and column No. 7 with all consequential benefits and the appellant should be considered for further promotion in the next higher grade on the basis of the appellant's seniority shown in the seniority list of Grade-18, dated 22nd April, 1981 with benefit of Rule 13 (iv)." It would appear from above prayer of the appellant that he has sought the order dated 28th August, 1986 passed by the Health Secretary to be set aside. The first question that struck our mind was whether the impugned order was original or appellate within the meaning of section 4 of the Sind Service Tribunals Act, 1973. We have carefully perused the said order. It was obviously passed on some representation of the appellant. Again the question would arise as to what was the appellant's grievance for redress of which he had made representation. The memo. of his appeal shows that he felt aggrieved by two orders passed at different stages; first order is dated 9th March, 1983 whereby he was shown as Medical Officer (Grade-17) but he was posted as Radiologist in Grade-18 post in his even pay and grade; and second order is dated 7th October, 1985 whereby aforesaid two respondents, his juniors were promoted to BPS-19 on regular basis. Although proper guidance is not available on the record to show which of the above two orders was assailed by the appellant in his particular representation on which the Secretary, Health had passed the impunged order, yet we are clear in our mind that either of the said orders against which the representation was made had to be regarded as the original order. Consequently the impugned order had seemingly the status of the appellate order. If so, the' question of filing appeal against the appellate order did not arise and as such the time spent on filing appeal against the said order to the Chief Secretary was not justified. If the impugned order dated 28th August, 1986 was treated as appellate order, the appellant should have come to this forum in appeal latest by 26th September, 1986 but he actually filed the present appeal on 17-1-1987, after the unexplained delay of nearly four months. The next point for our consideration is whether the Secretary, Health Department who is the auther of impugned order could hear appeal against either of aforementioned orders. In para. 12 of his memo. of appeal, the appellant himself has frankly conceded that the Secretary was not competent to pass the impugned order. Even otherwise we are convinced that the Secretary could not sit in judgment as appellate authority over the said orders. The order dated 9th March, 1983 was obviously a posting order. Even if we assume that the Secretary who had issued that order possessed the necessary power to make transfer and posting of Grade-17 Officer in Grade-18 post in his own pay and grade yet the representation or appeal filed by the appellant against that order could not be disposed of by the same authority namely the Secretary, Health Department. If the appellant wanted to challenge that order, he should have addressed his appeal to the Chief Secretary. This has obviously not been done. In fact the said order does not seem to have been challenged by the appellant at all Had he done so, he would have filed representation/appeal against the said order within 30 days i.e. latest by 7th April, 1983. We have verified from all the representations/appeals that the appellant has brought on record in support of his appeal. His representation at Annexure `H' addressed to the Secretary, Health Department is dated 1-12-1985. Another representation made by the appellant is addressed to the Chief Minister and is placed at Annexure `L'. It bears no date. His third representation, also addressed to the Chief Minister is dated 8-7-1986. His appeal to the Chief Secretary is dated 20-9-1986. Thus, appellant has laid no proof before us showing that he had challenged the order of his posting as Radiologist, dated 9th March, 1983. The other order by which he was manifestly aggrieved was the order of promotion to Grade-19 of the two respondents. It is dated 7th October, 1985. At S.No. 10 of the Table following subrule (1) of rule 4 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Chief Minister is shown as the appointing authority of the posts in BS-19 and above. Obviously the above order was passed with approval of the Chief Minister. The appellant was therefore required to file review petition against the said order to the same authority namely the Chief Minister. But instead he had filed representation dated 1-12-1985 to the Secretary, Health Department. There is no indication in the representation that it was intended for the Chief Minister. Moreover, it was not filed within 30 days of the order of the respondent's promotion. Even if the said representation was treated as review petition intended for the Chief Minister the appellant, in absence of the decision of the Chief Minister on such petition had to file the present appeal before this Tribunal within 30 days following the expiry of 90 days period from the date of filing of the said review petition. Accordingly the appeal was to be filed by 1st April, 1986. Since the appeal was actually filed on 17-1-1987 it was badly time-barred. Under no circumstances the so-called impunged order would be regarded as the order of the Chief Minister on the above review petition. In view of the discussion in the foregoing paragraphs the appeal was liable to be dismissed on the grounds of limitation and non-maintainability. Coming to the merits of the case, it would be noted that the appellant was reinstated in service under M.L.O.

23. The Federal Government had issued detailed instructions vide its memo. U.O. 3-3-1978-R11, dated 5th July, 1978 to deal with the issues arising from the reinstatements under the said M.L.O. Admittedly the said instructions were also adopted by the Provincial Government of Sind. Para. (d) of the above memo. which deals with seniority of the reinstated officers reads as under:-- "(d) SENIORITY IN GRADE: The reinstated persons may be allowed normal seniority in the grade in which they were serving at the time of retirement. In other words, they would be placed in the same position in that grade, which they would have enjoyed had there been no retirement." Considering the appellant's case in the light of above principle, he had to be restored to the same position of seniority in Grade-17 in which he was serving at the time of his retirement as if he had not been retired. In other words while determining the appellant's seniority in Grade-17, it was to be ensured that he would be placed above those officers in the said grade who were junior to him at the time of his retirement. No doubt in 1976 when the appellant was out of service as many as 288 Grade-17 posts of doctors were upgraded to Grade-18. On the basis of this development the learned counsel for the appellant submitted that since the post held by the appellant at the time of his retirement was included in the upgraded posts, he on his reinstatement was entitled to Grade-18 post. His argument was that upgradation of the post did not involve promotion and as such the incumbent holding the lower post would continue in the said post even after its upgradation without going through the prescribed process of promotion. In support of his argument, he placed reliance on "Explanation" following rule 8 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974. The "Explanation" reads as under: "Explanation.--Where a class of posts not being a fixed number, or percentage of posts in such class are upgraded as a result of revision of pay scales, the incumbents holding the posts immediately before the upgrading shall continue in the upgraded posts and their continuance shall not be deemed as promotion for the purpose of this part." The above "Explanation" was nowhere in sight when the upgradation of Medical Officers' Grade-l7 posts took place in 1976. It was introduced in the rules by the amendment made on 5th July, 1981 long after the said posts were upgraded. Therefore the said explanation would not be helpful in solving the issue confronting us. We had to decide independently whether the upgradation of the posts made in 1970 did or did not involve promotion. The answer to this question would depend upon the procedure followed for filling the upgraded posts. It goes without saying that the said two respondents were junior to the appellant in Grade-17 at the time of the latter's retirement. We have to see how they moved to be upgraded to posts of Grade-18. The respondent Dr. Faiz Muhammad Memon has stated in para. 8 of his written statement: " ......but the respondent was promoted on regular basis w.e.f. 1-10-1974 against the. regular and permanent post of Grade-18 of Civil Surgeon, Mirpurkhas after clearance by the Departmental Promotion Committee vide Government Notification No. SOI(H) 3/110-76, dated 13-1-1977 and communicated to the respondent vide Government of Sind and Social Welfare Department No. SCI (N)-3-110/76, dated 15-6-1977." In support of his above version he has placed reliance on the Health Department's notification, dated 13th January, 1977 which is reproduced as under:-- "No. SCI(R)-S/110-76.--In pursuance of Part 1 of this Department Notification of even No. dated the 4th May, 1976, Doctors promoted on regular basis with effect from 1st October, 1974 are hereby adjusted against the post mentioned against each in Col. 3 of the statement at Appendix `A' to this Notification, for the purpose of drawal of salaries. In pursuance of this Department Notification of even No. dated the 13th May, 1976 read with this Department Order of even No. dated 10th/18th June, 1976, the Male and Female Doctors and Dental Surgeons, Dental Demonstrators who were promoted against the upgraded Grade-18 posts with effect from 1st October, 1974, are hereby adjusted against the post mentioned against each in Column 3 of the statements at Appendices `B', `C' and `D' to this Notification for the purpose of drawal of salaries." The appendix `A' mentioned in the above notification contains the name of the respondent Dr. Faiz Muhammad. It is thus clear that usual procedure of promotion was followed before he was promoted to Grade-18 on regular basis. He was first cleared by Departmental Promotion Committee and then on its recommendations he was adjusted against one of the upgraded posts. Similarly respondent Dr. Nooruddin Oureshi has stated the same thing in para. 5 of his written statement: ..but the respondent was promoted on regular basis w.e.f. 1-10-1974 against the regular and permanent post of Grade-18 of District Health Officer, Nawabshah after the clearance by the Departmental Promotion Committee vide Government Notification No. SCI(N)-2/118-76, dated 13-1-1977." In support of his above plea he too has relied upon the same notification which was invoked by respondent Dr. Faiz Muhammad in his support and is reproduced above. Thus respondent Dr. Nooruddin Oureshi was also first promoted on regular basis to Grade-18 post and was then adjusted against one of the upgraded posts. Obviously neither of the respondents occupied the upgraded post automatically. The said respondents are supported in their version also by the written statement filed on behalf of the official respondents. In para. (i) of the "grounds" mentioned in the memo. of appeal, the appellant has taken the following plea: "The posts of respondents Nos. 3 and 4 were also upgraded in 40% Scheme and were not promoted under the prescribed rules for promotion on reserved Departmental Promotion Quota, hence they can not be senior to the appellant in Grade-18." Controverting the appellant's above plea, the reply given in the written statement filed on behalf of the official respondents is: "That in reply to the contents of para. (i), it is submitted that the contents of the para. are not correct though the respondents Nos. 3 and 4 were promoted from Grade-17 to Grade-18 against regular Grade-18 posts." From above appraisal of the factual position it becomes crystal clear that the upgraded posts were filled by way of promotion in accordance with the prescribed procedure. Neither the said two respondents nor any other doctor occupied the upgraded posts without going through the normal process of promotion. Since appointment to upgraded post was made by way of promotion, the appellant could not expect to get such post automatically on the basis of his seniority. The amendment by which "Explanation" referred to above was added in the rules rather furnishes proof that prior to promulgation of the said amendment, the practice different from the one clarified in the "Explanation" was in vogue and upgraded posts were regarded as promotional posts. Had it not been so, there was no need to make the aforesaid amendment clarifying the position by the "Explanation" Apart from above it has been categorically denied by the official as well as private respondents in their respective written statements, that the post of R.M.O., Nawabshah held by the appellant at the time of his retirement was also upgraded. Since the upgradation of the posts took place at the time when the appellant was out of service and the upgraded posts were placed at par with promotional posts he could not as a matter of right claim to be straightaway reinstated in the upgraded post. If all the Grade-17 posts of Medical Officers had been upgraded then the position would have been different. In that event the appellant on his reinstatement could be absorbed in one of the upgraded posts. As many as 003 posts still existed to Grade-17 when the appellant was reinstated. Accordingly he was entitled to be restored to the same grade from which he had retired. Contrary to this the appellant's demand for reinstatement in higher post of Grade-18 was not in keeping with the legal requirements. Mere fact that his name appears in the civil list as well as in the Provincial Seniority list amongst Grade-18 officers would not entitle him to the post of the said grade. It has already been explained that the appellant's name had appeared in the said list through error which was being rectified. Even otherwise the appellant cannot base his claim of seniority on the provisional seniority list. According to him no objection was filed by any of his juniors against the place of his seniority and as such his seniority position became final. This has been contradicted by the official respondents in para. 9 of their written statement which clearly shows that some doctors had made objections against the name of Dr. A.M. Khairvee (whose correct name Dr. A.B. Khairvee is however not in the said provisional seniority list). In any case until the provisional seniority list was finalized, the competent authority was free to make necessary notifications. Therefore, principle of locus poenitentiae (power of receding till a decisive step is taken) as enunciated in the case reported as Pakistan v. Muhammad Himayatullah P L D 1969 S C 407 was still available to relevant authorities as decisive step in the shape of final seniority list had not yet been taken. For above reasons appeal is dismissed with no order as to costs. AA./203/Sr. S Appeal dismissed.