M. SALEEM CHAUDHRY (CHAIRMAN).------By this appeal the appellants impugn the order, of the D. P. I., Punjab, dated 3rd December 1974, (Annex. IX), rejecting the representation of the appellants dated 24-2-1971 against the fixation of their seniority vis-a-vis respondents 4 to 6.
2. In brief the case of the appellants is that in case of persons entitled to the war service benefits under the Punjab Government Services (War Amend--ment) Rules, 1943, the seniority was to be determined from the date of their presumptive date of appointment in terms of rule 6 of the aforesaid rules as against the incumbents having no war service benefits whose seniority was to be governed by the normal rules of service, namely, Rule 10 of the Punjab Education Department (Office of D. P. I. Clerical Services) Rules, 1941 which fixes the date of confirmation in the relevant grade as the basis for fixation of seniority. The precise grievance of the appellants as reflected in para. 13 of the grounds of appeal was to the following effect :-- "That according to correct position of rules s explained above the appellant No. 1 (Mr. Siraj-ud-Din Ahmad) whose presumptive date of seniority as Junior Clerk was 1-10-1942 was to be assigned seniority over Mr. Muhammad Ishaq Aslam (since retired) whose date of con--firmation and seniority as Junior Clerk was 27-7-1943. Appellants No. 2-3 (Mr. Qudrat Ullah Khan and Munawar Ahmad whose presumptive dates of seniority as Junior Clerks wove 23-8-43 and 2-10-43 respectively were to be placed above Mr. Muhammad Shafiq whose date of confirmation/seniority was 1-4-1944. Appellant No. 4 (Mr. Abdul Hamid Butt) whose presumptive date of seniority as Junior Clerk was 13-4-1944 was to be assigned seniority over Mr. Habibur Rehman Dar whose date of confirmation/seniority as junior Clerk was 5-9-1544. This was and should have been the correct fixation of seniority instead of that wrongly assigned to the appellant; by the Education Department in its order dated 4-6-1969 (Annexure A-III)."
3. The learned counsel for the appellants in support of his case has relied upon the text of rule 6 of the War Service Rules, 1943, same reads as below :- "Every candidate with war service who is appointed to a Punjab Govern--ment Service, shall be assigned a place in the cadre of such services, which shall be fixed with due regard to his age and the period allowed to be deducted under rule 5 and shall, as nearly as may correspond with the place which he would have had if the war had not intervened and he had qualified in the normal way. The seniority infer se of all candidates so appointed to a cadre shall be determined by their ages irrespective of the class of war service rendered by such of them."
He also brought to our notice that even after the repeal of the Punjab Govern--ment Services (War Amendment) Rules, 1941 by West Pakistan Repeal Ordinance No. XLI of 1963, the position remained unchanged. He relied upon section 3 of the aforesaid Ordinance which was to the following effect. .- "Any person, with war service to his credit, on appointment to a vacancy shall, as nearly, as possible, be assigned a place in ate respective service-
(a) in case such person was appointed to a reserved vacancy referred to in the Rules, in accordance with rule 6 of the Rules.
(b) In case such person was appointed to a non-reserved vacancy, in accordance with rules for the time being in force regulating the fixation of inter se seniority of all persons appointed to the service or group of posts, during a year whether by recruitment, tar by promotion, or by transfer to on confirmation in the service or group of post."
Relying upon the above the learned counsel submitted that the appellants having been appointed against a reserved vacancy referred to in the 1943 rules, was entitled to gain seniority from the presumptive date of his appoint--ment. He also relied upon the Government instructions issued on 16 June 1968 (Annexure XI) in particular the following portion of the instruction :-- ". . The method of giving this benefit has been fully explained by the Supreme Court in its judgment Manzur Ahmad v. The Province of West Pakistan and others PLD 1961 SC 166. In this particular case, there was no substantive vacancy prior to 5-1-1948 but by giving Mr. Manzur Ahmad, the benefit of War Service his ascertained date of appointment worked 27-7-45. There was no substantive vacancy avail--able on that date yet he was given the benefit of seniority by the Supreme Court from 27-7-45. This criterion is applied by the Pro--vincial Government in all cases of War Service Candidates and the same has been applied in the case of respondents."
He also relied upon the decision of the Supreme Court reported as PLD 1961 SC 166 and Mohd.
Ajaib Malik v. Government Punjab (1973 PLC (C. S. T.) 95), decided on 14-9-1972, by the Punjab Civil Services (Appellate) Tribunal. According to the learned counsel both the decisions above lent support to his contentions. He also cited the decision of the Punjab Civil Services (Appel--late)
Tribunal in appeal No. 328/144 of 1970, decided on 2-11-1970 in which Mr. Bashir Ahmad was appointed in the office of the D. P. I. On 2nd March 1944 and confirmed as such on 1-4-1948 and declared junior to Abdul Hamid Butt whose presumptive date of appointment as Junior Clerk after allowing war service benefits was fixed on 13-4-1944 and was confirmed as Senior Clerk on 15-8- 1947 was declared senior to Bashir Ahmad. The learned counsel thus elicited support from the aforesaid decisions inasmuch as the date of appointment as Junior Clerk of Bashir Ahmad was earlier than the pre--sumptive date of appointment of Abdul Hamid Butt but still his seniority was maintained. Similarly he relied upon the decision of the said Tribunal in appeal Rana Shaukat All Divisional Accountant, Lahore v. S. E. Irrigation, LBDC, Sahiwal etc. No. 176/124 of 1973, decided on 29- 1-1974 and the decision in appeal B. K. Mirza v. Secretary to Government West Pakistan, Industries & Mineral Development Department No. 101/68 of 1971, decided on 16-9-71 in which the respondentth though confirmed earlier but the assumed date of appointment of B. K. Mirza having been treated earlier, he was declared to be senior. With these submissions the learned counsel pressed for the acceptance of this appeal.
4. The learned Government Pleader, on the other hand, submitted that admittedly even after allowing benefits of war service the presumptive dates of respective appellants fell after the date of appointment of the respondents concerned against whom the seniority was claimed by the appellant. He submitted that the contentions raised by the learned counsel for the appellant that the basis for fixation of seniority for the persons entitled to the benefits of war service and the persons not so entitled was different, was wholly mis--conceived. In this behalf he relied upon the Government instructions as contained in U. O. No. SORIII-13/4-27 dated 12-10-1973 and S O (NG) 10-- -113/70(P), dated 11th March 1574, in particular the following passage con--tained in Annexure A/5 (page 25 of the file) :- ". . . There is nothing in rule 6 or in any other rule .To suggest that after the war service candidates have once been given the initial advantage of a notional date of joining civil employment and have been allowed consequential concession in relation to age, qualifications etc., they are not to b.- governed by the normal rules of service applic--able to other (non-war service) members of the cadre they first join. To put the matter in clear terms, the position is that all the various benefits contemplated have to be given at the initial stage of their first joining the civil employment. Once this has been done they are to be at par with the ordinary members of the service."
According to the learned Government Pleader rule 6 had nothing to do with the fixation of seniority of the recipients of the war service benefits vis-a-vis non-war service benefits employees.
According to him since admittedly the respondents were confirmed earlier therefore the order of the D. P. I. Challenged by the appellants was unexceptionable. The learned Government Pleader also supported the contentions raised by the contesting respondents.
5. After hearing both the parties and considering the merits of the respective contentions advanced before us, we are of the view that the con--tentions of the appellants have no merits. In our view there is nothing in rule 6 of the 1943 Rules to support the plea of the appellants. It rather says that the recipients of the war service benefits shall be entitled to a place in, service as nearly as may correspond with the place which he would have had if the war had not intervened and he had qualified in the normal way. Similarly section 3(a) of the West Pakistan Ordinance XLI of 1963 which repealed 1943 Rules with effect from 1-1-1946, makes provision to the same effect and it had the effect of preserving the rights created by rule 6 of 1943 Rules only in the cases of civil servants appointed to the vacancies reserved for the war service candidates under the aforesaid Rules. In our view section 3 in no way had the effect of advancing the cause of the appellants any further: Similarly the decision of the Supreme Court of Pakistan in Manzoor Ahmad's case proceeded on the basis that even after accepting the contentions of the respondents (in that case) as to the disability of Manzoor Ahmad to be appointed to the service prior to 16th October 1943, still his date of appoint--ment was earlier than the respondents and, therefore, for that reason the objection was untenable. Thus the aforesaid case on facts was distinguish able. As regards the case Bashir Ahmad Bhatti v. Abdul Hamid Butt, the Appellate Tribunal observed that on the basis of date of confirmation in various grades which in the case of Abdul Hamid Butt were earlier than those of the appellant (Bashir Ahmad Bhatti), Mr. Abdul Hamid Butt was senior to the appellant. As such this case-is evidently distinguishable on facts. We may point out that Abdul Hamid Butt was confirmed as Senior Clerk on 15-8-1947 whereas appellant was confirmed in that case as Junior Clerk on on 1- 4-1948. Thus we fail to see as to how the aforesaid case could be pressed into service to defeat the contentions of the respondents. Likewise, the case of Rana Sakhawat Ali Alvi, had no bearing on the question involved in this case which too was decided on the basis of earlier confirmation. Similarly in the case of B. K. Mirza the Appellate Tribunal upheld his seniority on the ground that the department had illegally and without considering his case allowed confirmation to the respondents in that case. According to the view of the Tribunal the vacancy being available for war service candidates, therefore he has been wrongly denied the confirmation. The Tribunal in that case held that the confirmation in favour of the respondent could not be upheld against the appellants' interest in view of clear provisions of rule 3 of 1943 Rules. Thus the above-cited case is also distinguishable on facts. In brief none of the cases cited by the appellants, displaced the rule of seniority based upon confirmation.
6. In view of the departmental construction and in the absence of any good case made out by the appellant, we cannot subscribe to the contentions raised by the appellant that the basis of seniority in the case or the appellants and respondents had to be different. The contentions raised by the appellants are otherwise against the principles of fairness and justice and we cannot give effect to the same. In our reading the rule 6 of the War Service Rules, 1943 envisages the conferment of benefits to the extent that the civil servants with war service should get a place as nearly as possible which they could have occupied if the war had not intervened. Since after allowing benefits of was service their dates of appointments fell later than respondents and the respondents on that basis earned their confirmation earlier, the department has rightly applied rule 10 of 1941 Rules and the seniority so fixed is unexceptionable.
7. Consequently the appeal fails and is dismissed with costs.
8. We also find ourselves unable to entertain the application filed by Mr. Bashir Ahmad as we are not competent to re-open the case already con--cluded by the judgment of the Punjab Civil Services (Appellate) Tribunal, is Appeal No. 328/244 of 1979.