1. S. A. MAHMOOD (CHAIRMAN).--By this appeal under Sec--tion 4(1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, Mr. Muhammad Aslam, appellant, who is an Assistant in the office of Chief Engineer, Irrigation, Lahore, claims seniority over Messrs Muhammad Rafique, Yahya Ali Khan, Abdar Rashid and Mehraj Dingy respondents 3 to 6 who are also Assistants in the same office. He prays that his seniority may be corrected and his name placed in the seniority list above those of the respondents.
2. The Secretary to Government of the Punjab and Chief Engineer, Irrigation are represented before us by Mr. A. G. Humayyun, Government Pleader. Mr. Muhammad Rafiaue, respondent No. 3 is represented by Mr. Muhammad Tufail Basra, Advocate. The remaining three respondents are present in person, The learned counsel for Mr. Muhammad Rafique, respondent bas raised three preliminary objections. The first is that as the impugned seniority list issued on 4-3-1970 was withdrawn by the Superintending Engineer (Headquarters), who is the competent authority this appeal has become in fructuous. As to this contention, it has been pointed out by the learned counsel for the appellant that the impugned list has been substituted by another list, which was circulated on 20th August 1970 and that the seniority of the parties remains as before with the respondents senior to the appellant. Thus no substantial difference has resulted by the withdrawal of the impugned seniority list and the question at issue remains substantially the same. It is secondly contended that the competent authority has not been impleaded as a party, the competent authority being Superintending Engineer (Headquarters). We, however, find that as the Government of the Punjab and the Chief Engineer, Irrigation are respondents 1 and 2 in the appeal, the competent authority will be bound by an order made against them and, therefore, impleading of the Superintending Engineer is a mere formality. It is thirdly argued that the appeal is time barred by three days since it was instituted on the 6th of June 1970, when the impugned order was circulated on the 4th March 1970. We are inclined to ignore the objection on the ground of limitation as a new cause of action arose to the appellant on the issue of the new seniority list on 20th August 1970. We are not inclined, there--fore, to treat the appeal as time barred. We would like to dispose of this case as the parties are before us, and would like to dispose of the issue of seniority.
3. In the impugned seniority list, the appellant was at number 56, while respondents 3, 4 and 5 were at serial Nos. 49, 50 and 51. Mr. Mehraj Din, respondent No. 6 did not appear in that seniority list. In the revised seniority list circulated on 20th August 1970, the appellant was at serial N6. 25, with respondents 3, 4 and 5 at numbers 22, 23 and 24. Mr. Mehraj Din, respondent No. 6 is not shown in this seniority list; which was mainly for the reason that he has been allocated to this region by order of March 1971.
4. The appellant was offered appointment as Typist tit the pay scale similar that of the Junior Clerk on 17th March 1952. He has not yet been confirmed as Junior Clerk for the reason that he did not qualify in the written portion of the departmental exami--nation. He was appointed as Officiating Senior Clerk and Officiating Assistant from 2-2-1960, He has not been confirmed in any of those grades.
5. Mr. Muhammad Rafique, respondent No. 3 was appointed as Junior Clerk from 28th November 1952 and has been confirmed w. e. f. 1-10-1955. He was promoted as Officiating Senior Clerk on 29th April 1958 and as Officiating Assistant on 8-1-1960. He is not yet confirmed in these ranks.
6. Yahya Ali Khan, respondent No. 9 was appointed as Junior Clerk on 11-8-1953 and was made quasi- permanent w. e. f. 29th April 1958. He was promoted as Officiating Senior Clerk on 29th April 1958 and as Officiating Assistant on 7-1-1960. He is not yet confirmed in any grade.
7. Abdur Rashid, respondent No. 5 was appointed as a Typist on 22nd August 1952. He was confirmed as Junior Clerk from 29th September 1955. He was promoted as Officiating Senior Clerk on 29th April 1958 and as Officiating Assistant from 8-1-1960.
8. Mr. Mehraj Din, respondent No. 6, was appointed as Junior. Clerk on 17th November 1952 and was confirmed w. e. f. 30th September 1955. He was promoted as Officiating Senior Clerk on 29th April 1958, and as Officiating Assistant he took over on 26th March 1960. He is not yet confirmed in the two higher grades.
9. The rules initially applicable to the parties were the Punjab P. W. D. Irrigation Branch (Secretariat)
10. Clerical Service Rules, 1943. Rule 9 of these Rules laid down the date of con--firmation as the rule of seniority. The West Pakistan Irrigation Department Ministerial Service (Regional Offices) Rules, 1962 came into force on 6th November 1962, and its rule 9(b) provides the date of continuous appointment in the case of promotees as the rule of seniority. While confirmation in the rank of Junior Clerk will determine their seniority as Junior 4 Clerk, the date of continuous officiation will determine the seniority of the parties in the rank of Officiating Assistants, which they all are, as they are not confirmed in that grade.
11. The appellant claims seniority in the grades of Senior Clerk and Officiating Assistant on the ground of his earlier appointment as Junior Clerk. It is true that he was appointed earlier than the respondents 3 to 6, but under the Punjab Rules, as applicable, he is not entitled to rank senior to them on the ground that he has not yet been confirmed, while respondents 3, 5 and 6 have been confirmed. The learned counsel for the appellant, however, claims that as he was appointed to a permanent vacancy, he should be deemed to have been confirmed from March 1954 in terms of rule 8 of the Punjab Rules. This rule occurs under the heading "Conditions of Service" and it provides as under:-
8. Probation of members of the service.--.(1) Members of the Service who are appointed against permanent vacancies shall remain on probation for a period of two years in the case of members recruited by direct appointment, or of one year in the case of members appointed otherwise.
(2) Officiating service if it is continuous and if the officiating member is to be appointed to a substantive vacancy in the service may be reckoned as period spent no probation, but no member who is officiating in any appointment shall, on the completion of the requisite one or two years in such appoint--ment, to entitled to be confirmed until tie is appointed against a permanent vacancy.
(3) If the work or conduct of any member of the service during his period of probation is in the opinion of the Chief Engineer not satisfactory, the Chief Engineer, may at any time during period of probation, dispense with his service, or revert him to his former post, if he has been recruited otherwise than by direct appointment.
(4) On the completion of period of probation of any member of the Service, the Chief Engineer may either confirm such member in his appointment; or if his work or conduct has not been satisfactory dispense with his services or revert him to his former post, or extend the period of his probation and there--after pass such orders as could have been passed on the expiry of the first period of probation provided that the total period of probation shall not exceed three years."
12. This rule is intended to ensure that persons appointed against permanent vacancies shall remain on probation for a period of two years in the case of persons recruited by direct appointment or of one year in the case of those appointed otherwise. It also enables officiating service if it is continuous to be reckoned towards the period spent on probation. When sub-rule (4) provides for completion of period of probation, empowering the Chief Engineer to confirm such member or to dispense with his service or revert him or to extend the period of probation, which shall not exceed three years, it necessarily implies that member of the service must have been placed on probation.
13. There is no indication on record and no evidence has been produced that the appellant was placed on probation when appointed as a Typist on 17th March 1952. In fact, we find that when he was appointed, there was a bar in his appointment to the Secretariat under the Junior Clerks Recruitment Qualifying Examination Rules, 1952. Rule 7 of these Rules provides that no one shall be appointed as Junior Clerk in any Government office unless he possesses a certificate that he has obtained at least 33 per cent of the maximum marks in each subject and has been declared successful. An examination was held in August 1954, in which the appellant and the respondents sat. We are informed that the appellant did not qualify while the respondents did. Not having qualified in the examination, and not having obtained the required certificate under these rules, he was not eligible for appointment as Junior Clerk and he could not be treated on probation when appointed as a Typist. We are assuming that his appointment as Typist can be treated as appointment as Junior Clerk. Even so in view of the disqualification which stood in his way he could not be deemed to have been placed on probation. We are not surprised, therefore, that he has not been confirmed while some of the respondents have been so confirmed. There exists on the record a clear explanation for his not being confirmed as Junior Clerk and the appellant cannot in these circumstances derive the advantage of rule 8, which is not attracted in his case, because it is necessary before rule 8 is attracted that he should have become a member of the service.
14. Therefore, we are unable to declare the appellant senior to the respondents on the basis of rule 9 of the Punjab Rules, 1943.
15. Our attention has been drawn to a Notification of the Punjab Public Service Commission, issued in the Punjab Gazette of 3rd September 1953, in which the following appeared:- "Announced that the words All vacancies of Junior Clerks whether permanent or temporary, occurring after the 26th January 1952 in Punjab Government Offices including offices of the temporary departments, are reserved for candidates who qualify in the examination occurring in Rule 7 of the Rules for Junior Clerks Examination issued to candidates by the Commission, have been deleted."
16. Relying on this exemption it is argued that the necessity of passing the departmental examination having disappeared from September 1954, the appellant should be treated on probation from that date at least. Even if we were to accept the argument, the date of confirmation of the appellant would work out as September 1956, which date is later than the date of confirmation of Messrs Muhammad Rafique, Abdur Rashid and Mehraj Din, respondents. The appellant remains senior to Yahya Ali Khan, who is also not yet confirmed by reason of earlier appointment as Junior Clerk.
17. In the rank of Officiating Senior Clerk, all the respondents began to officiate earlier than the appellant. They, therefore, rank senior to him unless the appellants seniority is saved by Explanation I to rule 9 of the 1962-Rules. We have been shown the relevant file in which the promotions to the rank of Senior Clerk were made in 1958 and at that time two lists of Junior Clerks were prepared.
18. One list contained the names of those who had qualified in the examination and the other list contained the names of those, who had not qualified the examination. The name of the appellant occurred in the later list. In the result on 29th April 1958, Messrs Muhammad Rafique, Yahya Ali Khan Abdur Rashid and Mehraj Din were promoted as Senior Clerks with immediate effect, while the appellant was ignored for promotion. Thus it appears that the appellant was ignored from being promoted on the ground that he had not qualified in the departmental examination.
19. Both as Assistant and Senior Clerk, the appellant as well as the respondents are officiating and are not yet confirmed. In the rank of Senior Clerk, the respondents began to officiate earlier. In the rank of Assistant, Muhammad Rafique, Yahya Ali Khan and Abdur Rashid, respondents began to officiate earlier than the appellant. If these dates be taken into consideration, the appellant cannot be declared senior to them, but he claims seniority on the basis of his position of seniority as Junior Clerk since he joined earlier than the respondents.
20. The rule of seniority being the data of confirmation, the appellant has not yet been confirmed, therefore, he cannot be given the advantage of seniority as Junior Clerk, until he is confirmed In connection with the confirmation of the appellant, which tins not taken place so far, our attention has been drawn to Notification dated 3rd December 1964, by which rule 9was added in Junior Clerk Recruitment Qualifying Examination Rules (Punjab): "9. Notwithstanding anything contained in rule 2, any appointment, made on a temporary basis to a post referred to in that rule during a period when the Select List prepared by the Commission was exhausted or during any year when no qualifying examination was held by the Commission, shall be deemed to have been validly made, if the appointment was made by an authority otherwise competent to make the appointment and the person appointed was otherwise eligible for appointment; and Government or any other authority, to which the Government may delegate powers in this behalf, may, on the basis of the performance of the Government service and record of any person so appointed, confirm in his appointment; provided that a permanent vacancy exists."
21. It will be noted that the above rule was introduced for grant of exemption and in order to enable confirmations to take place in certain circumstances. We have been informed that since 1964 no case has been considered by the respondents 1 and 2 for confirmation and, therefore, it seems that action has not been taken in the context of rule 9. We direct that the case of confirmation of the appellant as Junior Clerk may be taken up and decided in the light of rule 9 by examining whether his case is covered by the rule or not. In case it is decided that his case is covered by rule 9, his date of confirmation may be decided upon, so that the question of his seniority vis-a-vis, the other officials is decided once for all. We may indicate that in case his date of confirmation assigned to hire as Junior Clerk is Clerk than the date of confirmation of the respondent, lie will rank senior to them and otherwise he will sank junior.