1. S. A. MAHMOOD (CHAIRMAN).-This appeal by Abdul Hamid, as Assistant Clerk in the Public Health Engineering Department of Government of Punjab arises out of the following facts :- Abdul Hamid appellant was appointed as an Assistant Clerk in the B & R Department of Government of the Punjab on 17th December 1953. In 1961 the Government decided to bifurcate the B & R Department into Departments of B & R and Public Health Engineering Departments, but instead of allocating the officers to the two Departments, Government decided to give option to all those serving in the B & R Department to opt for one or the other, giving them the guarantee that their previous service in the existing Departments would be counted towards seniority and other rights in the new Departments. The appellant opted for the Public Health Engineering Department and his option was accepted. Though the Chief Engineer ordered in August, 1963 that all optees for Public Health Engineering 'Department in various categories may be transferred immediately to the Department of Public Health Engineering, the transfer of the appellant was somehow delayed. This order was modified in January 1965 when the Chief Engineer directed that the clerks may be transferred in batches so that the work of B & R Department does not suffer. Abdul Hamid appellant was promoted as Senior Clerk on 14-1-65 in the B & R and was transferred to and joined the Public Health Engineering Departments on 21-7-65.
2. Muhammad Yunus respondent No. 2was appointed as Assistant Clerk in the Social Welfare Works Organisation, a branch of the B & R on 10th November 1960. This Organization was closed on 1st August 1961, and its entire staff including Muhammad Yunus was transferred to the Public Health Engineer--ing Department. Muhammad Yunus was promoted as Senior Clerk temporarily by order dated the 26th August 1964 and he took over as Senior Clerk on 5th September 1964. It was as a result of closure of Sub-Division No. III of Public Health Engineering Department, Multan that in retrenching some staff of the Public Health Engineering Department, Muhammad Yunus was reverted as Assistant Clerk on 3-9-66. On his reversion Muhammad Yunus appealed to the Superintending Engineer, Multan on the 24th of September 1966 claiming that as he was senior to Abdul Hamid, then S. D. C. Burewala Sub-Division, who has been promoted later than him he should have been reverted and Muhammad Yunus prayed for his re-instatement. This appeal was rejected by the Superintending Engineer on 7th November 1966. (Muhammd Yunus then filed another appeal on 24th October 1967. The Superintending Engineer rejected it treating it as a representation on the 15th of December 1967. Then Muhammad Yunus appealed to the Chief Engineer who without giving any reason declared Muhammad Yunus senior to Abdul Hamid, officiating S. D. C. and ordered that promotion orders of Muhammad Yunus should issue accordingly. In consequence of this order, Muhammad Yunus was promoted with retrospective effect on he ground of his having become senior to Abdul Hamid by order dated Ist. October 1968 and Abdul Hamid was reverted as Assistant Clerk. Abdul Hamid appellant impugnes the order of the Chief Engineer declaring him junior to Muhammad Yunus.
3. On the facts stated above it is clear beyond doubt that Abdul Hamid joined the service as Assistant Clerk seven years before Muhammad Yunus, and was in consequence senior to him as Assistant Clerk, though they belonged to two different organizations of the B & R. When the offices of the B & R had to be integrated, the Government decided to integrate them giving them full benefit of the previous service and all benefits arising therefrom. In consequence as members of the Public Health Engineering Department, Abdul Hamid was and is admittedly senior to Muhammad Yunus respondent No. 2 as Assistant Clerk. As such he had a preferential A right to promotion other things being equal, the rule of promotion being selection on merit with due regard to seniority stated in Rule 5(v)(i) of West Pakistan Public Health Engineering Department Ministerial Service (Circle)
4. Rules, 1966.
5. The question at issue in this case fairly and squarely is which of the two is senior in service, since promotion of one and reversion of the other has been ordered purely on the basis of seniority and n6t on a consideration of their respective merits.
6. Now if Abdul Hamid appellant was senior as Assistant Clerk, he would remain senior unless he is or was superseded by Muhammad Yunus in accordance with Rule 9(b). It is clear by reference to Explanation I to this Rule that he was never so superseded. When Muhammad Yunus was promoted as S. D. C. or senior Clerk, his appointment was in a temporary capacity, and Abdul Hamid had not yet joined the Department. His case was not considered along with the case of Muhammad Yunus, which could have resulted in the super session of Abdul Hamid. Since the position under the rule is crystal clear that Muhammad Yunus had not superseded the appellant in terms of Rule 9, the learned counsel for Muhammad Yunus had to fall back on the argument that since Abdul Hamid had not joined the Department, the earlier promotion of Muhammad Yunus gave him a right of seniority. That position is untenable, because unless a senior A man is superseded, a junior man cannot be given seniority in a higher grade. Muhammad Yunus had not even been appointed substantively, but only temporarily in the public interest to meet the exigencies of Departmental work, and this promotion could have given him no right of seniority to Muhammad Yunus without superseding him.
7. The reversion of Muhammad Yunus took place because Sub-Division No. III, Multan was closed and not because of Abdul Hamid transfer to the Department. As such the question of an appeal against Abdul Hamid should not have arisen except on the ground that Muhammad Yunus was senior to the appellant as Assistant Clerk. The Superintending Engineer was right in holding that he could not be so treated senior. The position taken by the Chief Engineer is untenable. In the first instance he have no reason for declaring Muhammad Yunus senior to the appellant and treated the service of Muhammad Yunus as continuous when he had reverted about two years earlier. His order is sought to be defended on the ground that Muhammad Yunus began to officiate earlier as S. D. C. than the appellant, but it should be remembered that it was a temporary appointment made without superseding the appellant and when the Chief Engineer passed his order, Muhammad Yunus had ceased to be S. D. C. since two years. There was, therefore, no competition between them as S. D. C.
8. The Order of promotion could only be reversed on tote basis of basic seniority and merits of Muhammad Yunus and Abdul Hamid as Assistant Clerks, in which capacity Abdul Hamid is admittedly senior of the two. Consequently, the order of the Chief Engineer cannot be supported on any ground.
9. We see no force in the contention raised on behalf of respondent No. 2 that as orders of promotion were made by the 9dperintending Engineer in each case, it makes a difference to the ease. The position in law and under the rules remains as stated above.
10. For the reasons stated above, we declar6 Abdul Humid to be senior to Muhammad Yunus in service as Assistant Clerk, and his reversion should not have taken place on the ground that Muhammad Yunus was senior to him as S. D. C., which he hasnot.
11. We, therefore, accept this appeal with costs, and direct that, effect be given to own order. We set aside the order of Chief Engineer, dated 23-9-1961.