S. A. MAHMOOD (CHAIRMAN).-This is an appeal by Sikandar Khan, who has by now been promoted as Inspector, Excise and Taxation, against the fixation of his seniority in the seniority lists dated 31- 5-1968 (Annexure V) and 24-4-1962, (Annexure'B') Taxation Sub-Inspectors, in which he has been shown junior to Muhammad Ishaque, Ch. Muhammad Anwar, Ch. Rehmat Ali, S. Ghulam Muhammad Shah and Mr. Nazir Ahmad Dhillon, respondents Nos. 3 to 7 who have also become E & T Inspectors. He cl6ims seniority over them as Taxation Sub-Inspector. It may; however, be mentioned that of the respondents, Syed Ghulam Muhammad Shah, respondent No. 6 vas assigned many years ago to Karachi, and is now serving under the Sind Government. He is not before us, nor is amenable to our jurisdiction.
(2)The facts relevant to the determination of seniority are that the appellant was first recruiteda purely temporary capacity from 28-1-1951 and was relieved from 31-3-1951, as sanction for the temporary post expired on that date. By another order dated 10-6-1951, Sikandar Khan appellant and Muhammad Ishaque, Ch. Muhammad Anwar, Ch. Rehmat Ali, S. Ghulam Muhammad Shah and Ch. Nazir Ahmad Dhillon, respondents Nos. 3 to 7 were appointed as Taxation Sub-Inspectors in a temporary capacity up to a certain date, but they have continued to serve the Department and have even been promoted as E & T Inspectors. Muhammad Ishaque, Ch. Muhammad Anwar, Ch. Rehmat Ali, S. Ghulam Muhammad Shah and Ch. Nazir Ahmad Dhillon, respondents Nos. 3 to 7, when appointed as Taxation Sub-Inspectors, were ordered to undergo training at their own expense for 15 days. Their res--pective dates of joining service are 15-6-51, 16-6-51, 18-6-51, 18-6-51 and 18-6-51, but they were actually paid salary from 30-6-51, 1-7-51, 3-7-51, 3-7-51 and 3-7-51, respectively. The appellant did not have to undergo any training as he had served in the department earlier for one month. Their particulars are as under:-
3. When the appellant and the respondents were all recruited to the Taxation Service, there were no notified rules governing their service. The Punjab Taxation Subordinate Service Rules, 1954 were notified on 5-6-1954. According to rule 9 of these rules, -the date of confirmation in service deter-- mined seniority. This rule provided :- "9. Seniority-The seniority inter se of members of the Service shall be determined by the dates of their confirmation, in the service; Provided that if two or more members are confirmed of the same date, seniority shall be determined as under:- (a)--------------------------------------------------------------------------------------- ---------------.
(b)--------------------------------------------------------------------------------------- ---------------.
(i)--------------------------------------------------------------------------------------- ---------------..
(ii) who are recruited by direct recruitment, an older member shall be senior to a younger member; Provided further, that if any member is reverted to his former post and is subsequently re- appointed to the post from which he was reverted his seniority in that post shall be determined by the appointing authority."
4. In accordance with the above rules, the Government published a list of seniority in 1962, which is Annexure B', and in this seniority list respondents Nos. 3 to 7 were shown 'immediately senior to the appellant on the basis of dates of their confirmation, which were earlier, as mentioned in the list.
5. We have looked at the relevant file to determine how the confirmation of the appellant and respondents Nos. 3 to 7 was ordered from the dates mentioned against their names, and, found that the basic policy adopted was the rule of continuous appointment, and age where the date of appoint--ment was the same. Applying this principle in the case of the appellant and respondents Nos. 3 to 7 and treating their date of joining as the date of their continuous appointment, respondents Nos. 3 to 7 were considered senior to the appellant and they were confirmed-on consecutive dates--respondents Nos. 3 to 7 from 6th to 10th July 1960, and the appellant on I1th July 1960.
6. After the integration, West Pakistan Excise and Taxation 'Department Subordinate Service Rules, 1966 were, notified on 11-11-1966, and another provisional seniority list dated 31-5-1968, was circulated in which the original seniority fixed in the seniority list of 24-4-62 was maintained. Their dates of confirmation and continuous appointment were, also mentioned in it, but in mentioning the later dates (of continuous appointment), the dates which were mentioned, were the dates on which the respondents completed the fifteen days training. As the appellant did not have to undergo any training, because ht had served the department for about a month in February 1961, his date of continuous appointment came to be shown earlier than the date of appointment of respondents Nos. 3 to 7. It is for this reason that the appellant claims seniority over them. The argument on his behalf is that as he became a member of the Service straightway on 19-6-51 and as the respondents Nos. 3 to 7 joined the Service on 30-6-51, 1-7-51, 3-7-513-7-51 and 3-7-51, they were junior to the appellant. The rule of seniority relied upon on behalf of the appellant for fixation of their inter se seniority is rule 9 of the 1966 Rules.
7. The material question which falls for decision, therefore, is what are the dates on which respondents Nos. 3 to 7 became members of the Service, i.e. whether they became members of the Service on the date of their joining or on the expiry of 15 days period of training, which they had to undergo at their own expense. In order to determine this question, we have looked at the circumstances in which they were appointed. No order of merit was assigned to them. We have not been referred to any instructions there being no rules prevailing at the time, that while undergoing training, respondents Nos. 3 to 7 were not members of the Service, but were merely trainees or apprentices: In actual fact, the letters of appointment, which were issued to them show unmistakably that they were appointed in the Service. It is true thatrespondents Nos. 3 to 7 had to undergo training for 15 days, but training is provided for in many Services, e. g., the Police Service, the Civil Service of Pakistan, the Foreign Service and other Services. In order to determine whether a person has been appointed to the Service or not, the test to apply is whether at the end of the period of training, the person concerned can be got rid of without the necessary formalities provided for removal from service. It is clear to us in this case that respondents Nos. 3 to 7 could not be got rid of and not given appointment on the completion o their period of training, and no other letter of appointment was to issue, or was issued; nor was it a pre-condition of being a member of the Service that, they had to pass a test or examina--tion. The so-called training at their expense had to be under--taken, therefore, as members of the Service. We have no doubt thus that on issue of letter of appointment and their joining the department as Taxation Sub-Inspectors, they became member of them. Service entitled to claim continuous appointment from that date. It is immaterial in this context whether they 'were paid their salary by the Government or not, the relevant question being-not whether their employment was of a stipendiary nature, but whether they were appointed to the Service.
8. In face of the above conclusion, we find that the dates of continuous appointment as Sub- Inspectors of respondents Nos. 3 to 7 are incorrectly shown in the seniority list dated 31-5-1968 (Annexure 'A') but were correctly shown in the office file at the -tin" of preparation of inter se seniority of Taxation Sub Inspectors, on the basis of which, dates of confirmation were deliberately assigned to respondents No. 3 to 7 on successive days 6th to 10th July and to the appellant 11th July 1960.
9. Because the dates of confirmation of respondents Nos. 3 to 7 were earlier than the date of confirmation of the appellant, as shown above, the respondents became senior to the appellant under rule 9 of the Punjab Taxation Subordinate Service Rules, 1954. The learned counsel for the appellant challenges the correctness of fixation of the dates of confirmation of respondents Nos. 3 to 7 and contends that this Tribunal should change these dates in accordance with the date of joining the Service as alleged by him, but it was open to the competent authority to fix the dates of confirmation in accordance with the date of joining the department (without the training period of 15 days) and in the discretion exercised by the de0art--ment, we see no reason to interfere. As has already been held by us, it must be held in this case that respondents Nos. 3 to 7 became members of the Service on the date of joining, and consequently the dates of confirmation as assigned by the com--petent authority do not call for interference by this Tribunal.
10. The seniority list of. 1968 was published-after the notification of the West Pakistan Excise and Taxation Department Subordinate Service Rules, 1966, notified on 11-11-1966. In this seniority list, the original seniority is maintained. The rule of seniority is contained in rule 9 of these rules, which are not applicable to the respondents and the appellant, who were initially recruited, as no order of merit was assigned to them and they were all selected in one selection. Thus the seniority fixed under rule 9 of the 1954 Rules is not affected by rule 9 of the 1966-Rules. The result is that the seniority originally determined must continue to hold the field and respondents Nos. 3 to 7 have correctly been shown senior to the appellant, on the basis of the dates of joining the Service. The respondents joined the service earlier than 19-6-1951, on which date the appellant joined.
11. For the reasons stated above, we see no force in this appeal, which is hereby dismissed, and leave the parties to bear their own costs.
NameDate of joiningDate of confirmation as Sub-InspectorDate of promotion as Excise and Taxation Inspector against a regular vacancy.
Sikandar Khan appellant19-651 11-7-60 24-6-70 Muhammad Ishaque respondent No. 315-6-516-7-60 1-9-69 Ch. Muhammad Anwar respondent No. 516-6-517-7-60 28-10-69 Ch. Rehmat Ali respondent No. 5.18-6-518-7-60Promoted before pre-motion of appellant and other respondent S. Ghulam Mohd. Shah, respondent No. 618-6-519-7-60 Karachi (1953)
Ch. Nazir Ahmad Dhillon respondent No.718-6-5110-7-60 Promoted earlier than others