SHAH ABDUR RASHID (CHAIRMAN).-These two appeals namely Appeal No. 315 (L)/1974 by Muhammad Yaqub Khan and Appeal No. 91(L)/77 by Aftab Ahmad Malik, involve common and identical questions of law and facts and are therefore, being taken up for disposal together.
2. Muhammad Yaqub Khan, the appellant in Appeal No. 315 (L)/1974 belonged to Pakistan Audit and Accounts Department and was serving as S.A.S. Accountant in the office of Accountant-General, Punjab, Aftab Ahmad Malik, the appellant in Appeal No. 91 (L)/1977 also be--longed to the same Department, and was working in the office of Deputy Comptroller, P T &. T, Lahore.
3. By order dated 19th August, 1964 of the Comptroller and Auditor---General made by him in exercise of para. 148 of the Comptroller and Auditor-General's Manual of Standing Orders, the appellant Muhammad Yaqub Khan, was taken on deputation to the office of the Comptroller and Auditor-General along with one Khurshid Ahmad Bhatti and it was stated in the order that he will normally be kept do the said office for a period of four years, and that his seniority in the office would be governed m accordance with the rules on the subject. This appellant actually took over in the Auditor-General's office on 27th August, 1964.
4. In respect of Aftab Ahmad Malik, a similar order was passed on 15th July, 19&7, and he took over in the office of the Comptroller and Auditor-General on 23 August, 1967. In his case also, the initial period of deputation was mentioned as four years, and the seniority was to be governed in accordance with the rates and orders on the subject.
5. By order dated 6th December, 1969, both Muhammad Yaqub Khan and Aftab Ahmad Malik, appellants, were assigned to the office of the Auditor-General from the dates on which theyrd originally joined the said office on deputation ; namely 27th August 1964 in the case of Muhammad Yaqub Khan and 23rd August, 1967 in the case of Aftab Ahmad Malik.
6. The above dates of assignment to the office of the Comptroller and Auditor-General were duly notified, but it appears that there was soma representation as another S.A.S. Accountant of the same office regarding his seniority viz-a-viz these two officers, as a result of which when seniority list was prepared; both the appellants were shown to have beers assigned to the once of the Comptroller and Auditor-General from 6th November, 1969 (the date should be 6th December, 1969 on which the order of assign--ment was passed), which was considered to be the date on which the order of assignment was made and notified.
7. Since the seniority list materially affected the seniority of the appellants, they after exhausting the departmental channel, have come in appeal before us under section 4 of the Service Tribunal: Act, 1973, pray--ing that in the case of Muhammad Yaqub Khan the seniority should have been fixed from 27th August 1964 and in the case of Aftab Ahmad Malik from 23rd August, 1967, the dates which were originally shown as the dates of assignment by the Comptroller and Auditor-General, by his order dated 6th December, 1969, which had been duly notified.
8. The learned counsel for the appellant as well as the learned counsel for the respondents Nos. 1 and 2, relied on MSQ-148 and S. No. 3 of Chapter IX of the Establishment Manual, Volume I, but each has put lair: own interpretation on these two documents. The learned counsel for the appellant has contended that under MSG-148, the Comptroller and Auditor General had fail authority to determine the date of assignment which he had done by order of 6th December, 1969, and, therefore, the seniority list published by the Department ignoring the date of assignment shown in the said order, is of no validity or legal effect. The learned counsel for State; can the other hand contended that the order of 6th December 1969 was ab initio void, because both the appellants were first taken on deputation from 27th August, 1964 in the case of Muhammad Yaqub Khan and from 23rd August, 1967 in the case of Aftab Ahmad Malik, and this transfer by way of deputation was of a temporary nature giving no vested right to either appellant to claim assignment from the aforesaid two dates. He contended that the Comptroller and Auditor-General having the order as assignment on 6th December 1969, both the appellants should have been shown as assigned from 6th December, 1969.
9. For understanding the implications of the relevant documents, it would be convenient to reproduce MSG-148, which reads as under :-- "A permanent member of the Subordinate Accounts Service or a Subordinate Accounts Service examination passed clerk may be called upon to accept transfer to the office of the Controller and Auditor-General of Pakistan or the Central Government Finance Ministry, on terms to be prescribed by the Controller and Auditor-General or by the Central Government Finance Ministry, in each individual case and this liability should be clearly staled in the Office Manual or other published record of the conditions of first appointment."
This clearly shows that the Comptroller and Auditor-General has to matte the assignment on terms and conditions to be prescribed by him. When the order of 5th December 1969 was passed; the terms and conditions prescribed by the Comptroller and Auditor-General were the Muhammad Yaqub Khan would be assigned from 27th August, 1964 and Aftab Ahmad Malik from 23rd August 1967. The order made by the Controller and Auditor-General in this respect was, therefore, quite valid and within his pourer, which even on the basis of MSG-148 gave him every right to determine by him, the appellants got a vested right for being placed in the seniority list on the said dates, and therefore, the further change made in the seniority list was without jurisdiction, illegal and voice, and could not give the contesting respondents any right over the appellants.
10. In S. No. 3 of Chapter IX of the Establishment Manual, Volume I mode for fixing the seniority on transfer from one ova to another, is laid down to para. 6(i) (a), which reads us under :- 6 (i).-The instructions in the foregoing paragraphs regulate the position of deputationist in his parent office. As regard has seniority in the office to which he is transferred, it should determined in the following manner.
(a) When it is open to the person concerned to accept or refuses an offer of appointment in another officer, he should count his seniority in the new office from the date of his transfer to that office---."
11. On the reading of these provisions, it is evident that the date for counting the seniority on transfer would be that date on which the trans--fer takes place. The transfer admittedly took place in the case of Muhammad Yaqub on 27th August 1964 and in the case of Aftab Ahmad Malik on 22nd August 1967, and consequently they are entitled to be placed in the seniority list on the basis of tire said two dates. Here again, the learned counsel for State vehemently urged drat the first order of transfer on deputation was not an order contemplated by paragraph 6 (i) (a) (ibid), and that it was tire date of order of assignment which is to be considered. We do not find any substance in this contention, because the Comptroller and Auditor-metal had fixed the dates of assignment in accordance with tire two appellants' date of joining his office. No doubt firstly both the appellants joined on deputation for a period of four years but in the case of Muhammad Yaqub Khan, he continued tea servo on deputation even beyond that period. Tine period of deputation, on the assignment of the appellants, merged in the order of assignment and this status seized to be relevant for the purposes of fixing the seniority when the Comptroller and Auditor-General decided that the date o. Assignment would be the date on which the appellant took over in his office on deputation. In fact, the decision of the Comptroller and Auditor General was equitable and in accordance with the rules of natural justice inasmuch us if the assignment had been made from 6th December 1969 then the persons junior to the appellants who joined much later on direct assignment from other offices, would become senior to them, which could not have been possibly contemplated.
12. In view of the above facts, ere accept bout the appeals and direct that for the purposes of seniority, the date of assignment is the case of Muhammad Yaqub Khan shall be 27th August 1964 and In the case of Aftab Ahmad Malik 23rd August, 1967. We further direct that the im--pugned seniority list should be amended accordingly.
13. The order in both appeals in the ex parte against respondents 4 to 7.
14. Parties be informed accordingly.