1. S. AMAHMOOD (CHAIRMAN).--The appellant gave _ up 27 respondents, who were struck off from the list of respondents, de order dated 11-9-1970.
2. In view of the assurances given by the Divisional superintendent, P. W. R., Rawalpindi, in his letter dated the 191h. March 1971, addressed to the Tribunal the counsel for the appellant has today withdrawn his case against respondents; Nos. 8, 10, 11-14, 16, 20-28, 31-33, 35-38, 41, 44-47, 50, 53-55, 58, 60, 62-69 and 71. It is noted by respondent No.1 against comments of paras.4-13 of the appeal that according to the instructions from Vice-Chairman (P), Lahore No. 847-EO-11(9), dated the 22nd January 1971, the seniority of office and line Clerks grade I and above in respect of non-selection posts is to be prepared on regular officiating service in the eligible grade/post. Secondly, seniority lists will be prepared in accord--ance. with the instructions circulated by Vice-Chairman (P), Lahore , vide letter No. 757-E/29-VII(E-VI)/ Policy, dated 13-7-1968 and No. 847 dated the 29th August 1970. It is also stated that the position of the appellant is being adjusted as Clerk grade II according to the date of entry into this grade in the Branch concerned according to rule 4, Section IV, page 29 of the Advance Chapter No. I of the Personnel Branch. Moreover, the seniority of Clerks grade II and above is to be maintained branch-wise. This leaves respondents Nos. 15 and 39.Mr. Muhammad Nasim, respondent No. 15 was recruited as direct Grade II Clerk in the Mechanical Branch on 1-10-1964. He has been shown at Serial No. 16 of the impugned seniority list at Appendix `D' on the ground that he has been given the Benefit of seniority w. e. f. 1-0-1954. It has been explained that there was a vacancy reserved for direct recruits on this date, but the respondent was appointed against this in 1964. Similarly, Mr. Muhammad Aslam, respondent No. 39 was appointed directly as a Grade II Clerk on 1-10-1964. He has been shown at Serial No. 42 of the impugned seniority list on the ground that he should be assumed to have- been recruited against a vacancy meant for direct recruits on 19-11-1955. Both these respondents have thus been given the benefit of seniority of about 10/11 years earlier than their dates of actual appointment of them have been confirmed w. e. f. 1-10-1964.
3. On the other hand, the appellant joined service as Clerk grade I in N. W. R. on21-5-1947 in the Personnel Branch. He was confirmed as such on 15-8-1947 in the same Branch. He was promoted as Grade II Clerk on 1-8-1951. He has been confirmed from 31-1-1965 in the Transportation Branch.
4. It has been argued on behalf of the appellant that according to Khushi Muhammad and 3 others v.
5. The General Manager, P. W. R. Headquarters, Lahore (PLD1970 SC 203.), their Lordships of the Supreme Court held :- "By placing the direct recruits in the grade as senior to the departmental promotees, although the latter had entered the grad earlier than the former, the impugned seniority list seems, by way of a function, that to direct recruits were the holder of the posts reserved for them in the grade on fifty- fifty basis although they were not actually appointed to those posts ad whenever appointed they should be deemed to have been reappointed from the date from which the vacancy of their quota, was to be filled. In other words, vacancies arising in their iota are deemed as permanent vacancies reserved for them, though in the meanwhile, departmental promotees have been appointed against those vacancies. The latter have, there, to be relegated to the position of juniority as against the direct recruits whenever appointed to the vacancies reserved for persons from their quota. We have not been show any rule to uphold this method of determining seniority, and none is discoverable on general principles. In fact, it is wholly against all notions of natural justice that persons who join service in a grade first should be relegated to a junior position as against those who join later, merely because they fill vacancies which were deemed to be reserved for them. In our view the ratio of 50:50 between the direct recruits and the departmental promotees merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority on their confirmation inter se. All the incumbents have to be treated at par in the matter of their seniority in the grade after they enter it. There is no rule that confirmation in the grade is also to be made byrotation, that is to say, one direct recruit and one depart--ment promotes, have to be alternatively confirmed. Again, no rule has been shown to us that an incumbent holding a post the grade in a temporary or officiating capacity should rank aver in point of seniority to one who is appointed later it be same capacity against a reserved post in the same grade"
6. The above-quoted proposition laid down by their Lordships of the supreme Court is fully applicable in this case. The appellant was promoted as Grade It Clerk on 1-8-1951. Mr. MuhammadNasim, respondent No. 15 and Mr. Muhammad aslam, respondent No. 39 were appointed on 1-10-1964 against direct recruits vacancies. The Department has explained that these vacancies were reserved for direct recruits and were available a for the respondents from-1-4-1954 and 19-11-1955, respectfully, brat it was the duty of the Department to fill up these vacancies, since the posts were available and not to wait over a decade. A person has no right in the service unless he is appointed. The direct recruits cannot be given the benefit off vacant vacancies with retrospective effect earlier than the date of their appointment. The appellant cannot be relegated to the position of juniority as against the direct recruits whenever appoint of the vacancies reserved for persons from their quota. In view of this, we hold that the appellant is senior to both the respondents Nos. 15 and 39. The appeal succeeds to this extent with no order as to costs.