MUHAMMAD KHAN Versus DIRECTOR, HEALTH SERVICES, HYDERABAD
1. MUNAWAR ALI KHAN (CHAIRMAN).‑‑ This appeal is directed against the order of the Director, Health Services, Sind, dated 22nd January, 195 whereby respondent Khan Muhammad, working as Assistant in he office of the Provincial T.B. Control Officer Hyderabad has been assigned seniority from the date of his appointment as Senior Clerk(viz. 2‑5‑1953) and has been placed below Mr. Muzzaffar Hussain Sidiqui, working as Assistant Accounts Officer Health Directorate Sind, Hyderabad and above Mr. A.B Shabir Ahmad Siddiqui, working as Superintendent Ojha Institute of Chest Diseases, Karachi. The order has affected the seniority of the appellant amongst other officials.
2. The appellant's case is that he started his Government Service on 5‑9‑1953 as Clerk in the Health Department, Government of Sind. He was later promoted as Senior Clerk on 3‑12‑1957, as Assistant on 11‑8‑1966 an as Superintendent (BS‑16) on 27‑9‑1980. On the other hand the respondent Khan Muhammad was directly appointed as Senior Clerk with befit of 20% additional pay in the special project started under WHO for the purpose of control of T.B. The project which was started in 1950 was identified as B.C.G. Programme. The personnel of the said project were treated as separate cadre, from the general cadre of the personnel working in the health directorate and consequently separate seniority lists were maintained for the said two cadres and to officials borne on each cadre looked for promotion in their own cadre. Despite this position the respondent Khan Muhammad attempted to get seniority in general cadre but his representation in this connection was dismissed by order dated 12‑2‑1962. This decision was reiterated by subsequent order dated 29‑7‑1964. The said respondent ode fresh representation in 1983 seeking seniority above appellant another members of the general cadre of ministerial staff whereupon h has been allowed the desired seniority by the impugned order mentioned above. Accordingly the appellant after availing the departmental appeal has come in this appeal before the Service Tribunal.
3. After hearing the arguments of the learned counsel for the parties and also of the respondent Khan Muhammad the order was reserved vide order dated 9‑3‑1987 on order sheet. For further clarifications notice was issued and served on all concerned including Khan Muhammad who though attended in response to the notice yet remained absent on 15‑4‑1987 when the arguments in the case were concluded and on the same day the appeal was allowed with no order as to costs for reasons to be recorded separately. Following are reasons in support of the said short order.
4. On perusal of the written statement filed on behalf of the two official respondents namely Director, Health Services, Hyderabad and Secretary to Government of Sind, Health Department, it is revealed that appellant's case as stated in his memo of appeal has been admitted in toto. It is not denied on behalf of the official respondents that ever since the special Project, which came to be known as B. C.G. Programme was started, the personnel working in that Project had separate cadre identifiable from the general cadre of the officials working in Health Directorate. It is admitted that the appellant joined as clerk in the general cadre whereas the respondent Khan Muhammad contrary to the rules governing the general cadre was directly appointed as Senior Clerk with benefit of additional pay of 20$ in the B. C. G. programme. It is also admitted that seniority of the officials borne on each cadre was maintained separately and promotions to higher posts falling vacant in any cadre were made from amongst the A officials of the lower grade of the same cadre. The order passed on 12‑2‑1962 rejecting the representation of respondent Khan Muhammad seeking seniority in the general cadre of ministerial staff also goes to support the appellant's case.
5. Apart from above, it is an admitted position that at no stage the said two cadres have been amalgamated at any administrative level. In view of such a clear cut position as stated above, the question arose how then the impugned order was passed by which the respondent was allowed seniority in relation to officials belonging to general cadre. The explanation given in this regard in para 8 of the written statement is that the decision contained in that impugned order was made under the direction received from the S&GAD, Government of Sind vide its Letter U.0. No. S.O.VIII Reg(S&GAD) 1‑64/75 dated 27th June, 1984. The second para: of this letter which is relevant, is reproduced as under:‑
6. "Appointment of Mr. Awan appears to be in confirmity with the provision of rule 80 of Sind Civil Services Classification and Recruitment Rules then in force. Further, there is no rule under which the seniority of temporary and permanent staff is to be shown separately. His name may, therefore, be included in the appropriate seniority list of the Directorate of Health Services, Sind."
7. We are sorry to note that the above advice is far too perfunctory. It is net capable of providing proper guidance on the issue. Conscious of the fact that respondent Khan Muhammad belonged to special cadre of the B.C.G. Programme which was obviously continuing on temporary basis, it is said in the advice that there is no rule under which the seniority of temporary and permanent staff is to be shown separately. While giving such advice, other factors, which were vital for consideration were totally overlooked. First of all no due notice was taken of the fact that the special cadre to which respondent Khan Muhammad belonged was being maintained separately from the general cadre since time immemorial. If at all he was intended to be obliged by allowing him seniority in general cadre, necessary first step should have been taken by amalgamating the two cadres and drawing up consolidated seniority list in accordance with C the criteria laid down in the relevant rules and thereafter the aforesaid respondent should have been assigned appropriate place of position in the said seniority list.
8. It is also amusing to note from the advice referred to above as if separate seniority lists are never maintained for permanent and D temporary civil servants. In this connection reference may be made to rule 9(1) of the Sind Civil Servants (Probation, Confirmation ana Seniority) Rules, 1975. It reads as under:
9. "9. (1) 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. "
10. It is clear from above rule that for each group of Civil Servants, doing similar duties, performing similar functions and for whose' appointment same qualifications and experience have been laid down separate seniority list is prepared and maintained. It is common, knowledge that for temporary cadre of Civil Servants in any,, Government Department at least qualifications and experience laid down for their recruitment have invariably been different rather softer than those for permanent employees. Even duties and functions assigned) to them may be different from those of permanent Civil Servants. In i any case, the circumstances and conditions under which two sets of employees namely temporary and permanent are working in any Department may always not be the same. They may vary from Department to Department or from office to office. What was required, was that the case of amalgamation of the two cadres involved in this case should have been thoroughly examined in the light of their long F history and keeping in view the criteria laid down in the rules for' preparation of Seniority list and then if found necessary policy decision should have been taken for such amalgamation or in the alternative they should have been allowed to continue in the existing shape.
11. Apart from above rules it has been general practice almost in all Government Departments that separate seniority lists are prepared and maintained for temporary and permanent cadres. We must say G that the two cadres under consideration have therefore been in vogue in corfirmity with such practice. However, as pointed out above if their amalgamation was desired and such amalgamation was permitted under the above‑mentioned seniority rules, then nothing would prevent the authorities from doing so. All that we emphasise is that the desired goal could be achieved strictly in legal manner. After taking into consideration the merits of the case even the learned A.A.‑G. was persuaded to write a long letter to the concerned authorities recommendating withdrawal of the impugned order. Even on the last date of hearing of this case, the learned Government Counsel frankly conceded that two departmental representatives who had come to asset him were unable to explain how the respondent Khan Muhammad who was only Assistant in special cadre of B.C.G. Programme had been planted between Muzaffar Hussain Siddiqui and Shabir Ahmed Siddiqui H who were not only holding higher posts enquivalent to Superintendent but also belonged to two different cadres.
12. In view of the above discussion the appeal was allowed and the impugned order was set aside.
13. A. E. /107/Sr.S
14. Appeal allowed.