1. S. A. MAHMOOD (CHAIRMAN).-By this appeal, under section 8 of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, Mr. Asghar Ali Rana, Ex. Engineer, Multan, prays that the Secretary to Government of the Punjab in the Irrigation and Power Department, respondent No. 1, may be directed to place the appellant senior to Messrs Shah Muhammad, Muhammad Safdar Khan and Kh. Zahurul Hassan, respondents 2 to 4 and to revise his date of promotion to class I (junior) as from 14-10-1955.
2. The appellant is represented by Messrs D.. M. Awan and Mushtaq Ahmad Masud, Advocates.
3. Respondents 3 and 4 are present in person, while respondent No 2 is absent in spite of service. Mr. Khalil Qureshi, Section Officer, is present along with record on behalf of the Secretary to Government of Punjab in the Irrigation and Power Department Mr. Muhammad Iqbal Advocate appeared before us on 9-6-71 on behalf of respondents 3 and 4.
4. The main complaint of the appellant is that though he was senior as Officiating Ex. Engineer and in other ranks to respondents 2 to 4, he has been illegally relegated in seniority. In the half-yearly Gradation and Distribution List, corrected up to 13th October 1955 (Annexure `A'), Asghar Ali Rana, appellant, was shown at number 13, while Mr. Mohammad Safdar was shown at number 15 and Kh.
5. Zahurul Hassan at number 16. Mr. Shah Muhammad was not included in this list, as he belonged to Bahawalpur State Service of Engineers. In the next seniority list of Officiating Executive Engineers, circulated along with letter dated 26th March 1966, the. appellant was shown at number 64, Mr. Muhammad Safdar Khan at 84, Kh. Zahurul Hassan at 85 and Mr. Shah Muhammad at 94. This seniority list is Annexure 'B'. In the next seniority list issued in 1968 (Annexure 'D'), the appellant was shown at number 67, Mr. Muhammad Safdar Khan at number 87, Kh. Zahurul Hassan at number 88 and Mr. Shah Muhammad at number 96. In the integrated seniority list of Officiating Executive Engineers, circulated along with letter dated 3rd September 1968 (Annexure 'E'), the appellant was shown at number 24, Mr. Muhammad Safdar Khan at number 34, Kh. Zahurul Hassan at number 33, but Mr. Shah Muhammad was not shown in this list. He did not appear in this list, because it is- the list of senior most Officiating Ex. Engineers drawn up with a view to fill up 84 vacancies of Ex.
6. Engineers. On 25th November, 1968, the Provincial Government notified the names of those promoted as Assistant, Ex. Engineers and in this list -Mr. Muhammad Safdar Khan and Kh. Zahurul Hassan, respondents, figured but not the appellant. It was on 18th April, 1970, that he was notified as promoted Assistant Ex. Engineer w. e. f. 2nd July 1957. As against this Mr. Muhammad Safdar Khan and Kh. Zahurul Hassan were promoted to class I (junior) from later dates, a notification was issued on 29th March 1970, whereby Mr. Muhammad Safdar Khan and Kh. Zahurul Hassan were promoted as Assistant Executive Engineer w. e. f. 14th October 1955, the date from which their immediate juniors Messrs Wali Muhammad and J. K. Jafery were so promoted. The effect of this notification was to make their dates of promotion to class I (junior) earlier than the date of promotion of the appellant. By the same notification, Messrs Muhammad Safdar Khan and Kh. Zahur-ul Hassan were notified pro forma dates of promotion as Officiating Executive Engineer from 27th June 1953, which was the date on which their juniors Messrs Wali Muhammad and J. K. Jafery, Temporary Engineers, were so promoted. It was further ordered by this notification that they be placed immediately above Mr. Wali Mohammad in the list of Officiating Ex. Engineers. By still another notification dated 24th September 1970 (Annexure 'H'), the Government, in consultation with the Public Service Commission, promoted Shah Muhammad, Officiating Ex. Engineer to class I w. e. f. 14th October, 1955, the date on which his juniors Messrs Muhammad Safdar Khan and Kh. Zahurul Hassan were so promoted and placed immediately above them in the seniority list. The appellant feels aggrieved by these notifications as thereby his seniority was affected on the basis of dates of continuous officiation.
7. It will be apparent from above that pro forma dates of promotion were assigned to Messrs Muhammad Safdar Khan, Kh. Zahurul Hassan and Shah Muhammad, which were fro;; the dates of promotion of their juniors to class I (junior) and as Officiating Ex. Engineer. These notifications, therefore, give the impression that they were issued in order to restore their seniority in order that they are not superseded by their juniors in the lower grade.
8. A perusal of para.9(4) and (5) of the written statement filed by respondent No. 1, shows that Messrs Muhammad Safdar Khan and Kh. Zahurul Hassan were given pro forma promotion as Officiating- Executive Engineer from the dates their juniors were promoted from 27-6-1953 and also in class I (junior) w. e. f. 14-10-1955, but the appellant was not given pro forma promotion, because he had neither passed the departmental examination at that time, nor was given necessary exemption from passing the departmental examination. The appellant, therefore, makes a serious grievance of this fact and complains that he has been relegated in seniority unjustly and illegally. It appears from the written statement of respondent No. 1 that while Messrs Muhammad Safdar Khan and Kh.
9. Zahurul Hassan were given pro forma promotions, the appellant was not given the pro forma promotion for not having passed the departmental examination. It is, however, clear to us that the appellant bad passed the departmental professional examina--tion on 20th September 1954 and had passed the revenue examination on 5th December 1953, whereas Mr. Muhammad Safdar Khan and Kh. Zahurul Hassan had passed the professional departmental examination on 6-7-195'5 and Sh. Muhammad had passed this examination in 1959. It was justifiably argued before us that there was no real distinction between their cases so far as the clearance of the professional departmental examination and the revenue examination were concerned. The distinction pointed out on behalf of the respondents is that Messrs Muhammad Safdar Khan and Kh. Zahurul Hassan were sent on deputation -after appointment as Temporary Engineers to the Punjab Engineering College, Moghalpura to serve as lecturers up to July 1952. Government had allowed them two years up to July 1954 to clear the, departmental examination with a view to avoid hardship to them. The relaxation had remained operative till July 1954. Because of this relaxation and because similar relaxation had not in the case of the appellant, their respective cases are claimed to be distinguishable. We do not see any real distinction between the cases of the appellant and respondents 3 and 4 the basis of clearance of departmental examinations when pro forma dates of promotion were bang assigned to respondents 3 and 4 in 1970. The case of the appellant should have been similarly treated. We are informed that the appellant made a representation that as he had cleared the departmental examination, be should also be awarded pro forma date of promotion similar to respondents 3 and 4. We find that the office note on his application was in his favour, but a decision was not arrived at, because he had Appealed to this Tribunal. That decision Government alone can take and there seems to be no apparent reason why similar pro forma date of promotion be not granted to him as in the case of respondents 3 and 4.
10. The service particulars of the parties may now be stated: The appellant was appointed as Temporary Engineer in the Irrigation Branch of P.W.D. of the Punjab Province, on 18-1-1947. He was promoted as Officiating Executive Engineer on 13-10-1955, and took over as Executive Engineer on 1-11-55, which is his date of continuous appointment as Executive Engineer. We arc informed that his promotion was made against a pre---Integration vacancy of the Punjab Province. On 28th March 1968, he was appointed to class II Service against a pre--1963 vacancy under rule 8 of the West Pakistan Irrigation Engineers Service (Class II)Rules, 1967. On 18-4- 1970, he was promoted to class I (junior) w. e. f. 2-7-1957.
11. Kh. Zahurul Hassan respondent No. 3 was appointed as Temporary Engineer in the Punjab P. W. D.
12. Irrigation Branch on 31st October 1947. He was promoted as Officiating Executive Engineer on 9-9- 1957. He was appointed to class II Service in 1968 by notification dated 29th March 1970. He was given pro forma promotion as Ex. Engineer w. e. f. 27th June 1953 and to class I (junior) w. e. f. .14-10- 1955. Kh. Zahurul Hassan, respondent No, 4, joined the Punjab P. W. D. Irrigation Branch as Temporary Engineer from 30th October 1947. He was promoted as Officiating Ex. Engineer on 17-9- 1957. He was appointed to class II service in 1968. By notification dated 29th March 1970, he was given pro forma promotion as Ex. Engineer w. e. f. 27th June 1953 and to class I (junior) w. e. f. 14-12- 55.
13. Mr. Shah Muhammad joined the Bahawalpur State Service of Engineers as Apprentice Engineer on 20th December 1951. He was promoted as Assistant Engineer in class II from 16th June 1952. On Integration, he was, therefore, a class II. Officer. On 12th July 1958, he was promoted as Officiating Executive Engineer. By notification dated 24th September --1970, he was assigned the date - 10-10- 1955 for promotion to class I (junior). By the same notification, he was ordered to re--placed senior to respondents 3 and 4 in class I (junior).
14. From the above particulars it is apparent that. Mr. Asghar Ali Rana was senior to respondents 2 to 4:- His seniority. Is reflected in the seniority lists A, B, C and D, circulated on 13-101955, 6th March 1966, 1967 and 3-9-1968. The date of appointment of the appellant as Temporary Engineer is earlier than the date of appointment of Mr. Muhammad -Safdar Khan and Kh. Zahurul Hassan respondents. His date of promotion as Officiating Ex. Engineer is also earlier. His date of appointment as Temporary Engineer is earlier than the date of appointment of Mr. Shah Muhammad as Assistant Engineer in class II in Bahawalpur State. While Mr. Shah Muhammad was in class II at the time of Integration, the appellant was appointed as Officiating Executive Engineer by order dated 13th October 1955, i.e. immediately before Integration. Thus the appellant was in a higher, rank at the time of Integration. In spite of all these facts, the appellant's seniority is seriously threatened by notifications dated 18th April 1970 and 29th March 1970, by which pro forma dates of promotion to class I (junior) and Officiating Executive Engineer have been assigned to respondents 2 to 4. In the case of respondents 3 and 4, earlier dates have been assigned to them so as to save them from being junior to their immediate juniors. The same is the case of Mr. Shah Muhammad, who has been assigned 14-10-1955 as date of promotion to class I (junior) and placed immediately above respondents 3 and 4. The effect is to make them all senior to the appellant in clase I (junior), and even as Officiating Executive Engineer to make respondents 3 and 4 senior to him.
15. The revised dates of promotion to class (Junior) and Officiating Ex. Engineer have been assigned to respondents 3 and 4 because of representations made by them to the Government against being made junior to their immediate juniors. This representation was referred to the Public Service Commission under rule 15(2) of the West Pakistan Irrigation Engineers Service (Class I) Rules, 1967.
16. This sub-rule provides that notwithstanding anything contained in sub-rule (1), the seniority of class II officers and Temporary Engineers recruited to or absorbed in the service who were holding the posts of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiation as such; provided that if in any particular case Government is of the opinion that the application of this sub-rule causes or will cause hardship to one or more members of the Service, Government may, in. consultation with the Commission, assign to the persons concerned such seniority as it considers equitable. It was in consequence of the hardship likely to be caused to respondents 3 and 4 that the representation was based and Government decided to refer the case to the Public Service Commission as was the requirement of the sub-rule, but the Public Service Commission declined to tender its advice, and wrote back to say that the Government could itself decide the case, since the case of their promotion as Officiating Executive Engine" was not referred to the Commission by the Department and their promotion was ordered by the Government itself. This was unfortunate as its duty under rule 15(2) which had to be performed by the Public Service Commission was not performed. The Government, however, decided to accept the representation of respondents 3 and 4 and to assign pro forma dates promotion in order to save them from becoming junior. In doing so, it was however, ignored that others, who were not junior, but were in fact senior may be adversely affected.0If in the case of respondents 3 and 4, their representation was .mph accepted to save them from becoming junior to their juniors, the appellant is entitled to argue that he should not on that account be reduced or relegated in seniority and should be saved from becoming junior to his juniors. It should be remembered' in this connection that this is not a case of super session of the appellant by respondents 2 to 4, or by his juniors, and therefore, by the act of assigning pro forma dates to respondents 2 to 4, the appellant does not lose his position of seniority. In order, therefore, to safeguard his interest, it was just and equitable that he should have been awarded pro forma dates of promotion as in the case of respon--dents 2 to 4 in order to save him from losing his seniority. Vie would like to mention in this connection that it is apparent from the recommendation made by the Department to the Public Service Commission on 1-12-69 in the case of the appellant that there were cases where some officers, who had not passed the departmental profession revenue examinations as in the case of the appellant, had been promoted as Officiating Executive Engineers by the former Punjab Government. There-- fore, the fact that the appellant had not cleared the examination before September1954 did not stand in the way of his being assigned pro forma dates of promotion Assigning him pro forma dates is equally necessary in order to safeguard his interests and to save him from being relegated in seniority. In order to secure his seniority, he had claimed pro forma promotion from 16-1-1953. His case was also referred to the Public Service Commission under rule 15(2). The Commission did not dis--agree with the recommendation, but contented itself by reiterating and advising that his representation may also be considered and decided by the Irrigation and Power Department itself. This was again unfortunate because consultation with the Public ServiceCommission was necessary under sub-rule (2) of rule 15 for making an order Government has not yet passed any final order but it is apparent that it is a fit case for the exercise of its discretion and powers under sub-rule (2) of rule 15 in order to- save the seniority of the appellant from being adversely affected by reason of fixation of pro forma dates of promotion of respondents 2 to 4. We, therefore, hope that a suitable order will be passed by the Government without further delay. The passing of an order on the representation of the appellant should not be delayed in order to await the decision of this Tribunal in this appeal.
17. The learned counsel for the respondents 3 and 4 raised a preliminary objection that this appeal did not lie as the impugned order does not fall under section 4(f) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969. Section 4(1) of the Ordinance provides for an appeal of a Government servant aggrieved by an order of the competent authority fixing his seniority within three months of the publication of the latest seniority list and section 7 confers jurisdiction on the Tribunal to hear and decide appeals against the order of competent authority fixing seniority of a Government servant but as this appeal is, as filed on 17th November 1970, the statute applicable is the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970. Section 8 of this Ordinance provides that any Government servant aggrieved by an order of competent authority fixing his seniority may prefer an appeal before a Tribunal within, three months from the date of knowledge of such order or from the date of notification of the latest list of seniority. No list of seniority have been published after 1968, but it is apparent that the orders of 29th March 1970 and 18th April 1970 have the effect of affecting the seniority of the appellant and, therefore, give a right of appeal to him to move this Tribunal. In any case this appeal lies under section 7(1) read with sections 5 and 6 of the Ordinance, which requires the competent authority to prepare and maintain separate lists of seniority of gazetted and non-gazetted Government servants and to revise such lists and if the competent authority fails to discharge its duty under section 5 or section 6, the Tribunal may on application made to it or sue motu, direct the competent authority to discharge its duty within a specified period and the competent authority shall comply with such direction of the Tribunal. This is what we propose to do In this case. In this connection it was argued that the appeal was not within time i.e., within 3 months from the order dated 29th March 1970, and 18th April 1970. The impugned order (Annexure `H') being of 20th September 1970, the appellant is riot beyond time.
18. The learned counsel for respondents 3 and 4 further urged that there was, no case for the assigning of pro forma dates of promotion to than appellant, though pro forma dates have been justly assigned to respondents 2 to 4. We are unable to agree with this contention. We find ample justification for the appellant to be similarly assigned pro forma dates of promotion.
19. For the reasons stated above, we direct that a seniority list, as required by section 5 of the Ordinance, may be drawn up and notified within three months as required by law and before it is done suitable orders may be made on the representation of the appellant to assign to him pro forma dates of promotion to save him nom becoming junior to his juniors. We accept this appeal and leave the parties to bear their own costs.