1. S. A. MAHMOOD (CHAIRMAN).-This is an appeal by Ch. Altaf Hussain, Chief Engineer. Replacement Plan Wing, Government of Pakistan; Lahore, under section 4(1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, whereby he claims seniority over Mr. Saad Haroon Mahmood the deputy-Secretary to Government of the Punjab, Lahore in, rank of Executive Engineer in P. S. E. (1).
2. The appellant anti respondent No. 2 have argued their own cases. The Secretary to Government of the Punjab is representedby Mr. A, G. Humayyun, Government Pleader.
3. The brief facts out of which this appeal has arisen are that Chief, Altaf Hussain appellant and Mr. Saad Haroon Mahmood respondent No. 2 were appointed to Class I (Junior) as Assistant Executive Engineer in 1950. While the appellant took over on23rd August 1950, respondent No. 2 joined on the 28th October 1950. Thus respondent No. 2 joined the Department later, but it is claimed by him that the letters of appointment in both the cases are of the same date.The appellant and respondent No. 2 were confirmed as Executive Engineer in Class I (Senior) on the 30th June, l954 and 8th January 1957, respectively. Thus respondent No. 2 was promoted later than Ch. Altaf Hussain.
4. In the seniority list of 28th March 1910 and of 2nd April 1974, the appellant was shown senior to respondent No. 2 but in the revised seniority list prepared after hearings of the cases before, a Division Bench of the High Court of West Pakistan he was shown junior immediately below, respondent No. 2. This has led to the appellant filing this appeal and he claims seniority over respondent No. 2.
5. The relevant rule governing seniority of the parties; who are directly appointed to class I service is rule 15, which provides as under:-
15. Seniority of members of the service.-(I) The relative seniority of members of the service recruited by direct appointment in any one calendar year in India and in England shall be regulated in the following manner:- The European and Indian recruits shall be arranged on the list strictly in accordance with the dates of birth: Provided that Government shall decide in each individual case, the seniority to be accorded to a member whose period of probation has been extended under the provisions of rule 14, sub-rule (3).
(2) The seniority of members recruited by promotion from Class II Service shall be regulated as follows:
(a) Members having more than 12 years total service in the Class II service shall count seniority as Executive Engineers from the date of promotion to Class II, provided that if more than one member is promoted from Class II on the same date, the seniority inter se shall be decided by-Government.
(b) Members having less than 12 years service in the Class II service shall count their total service in that class, less two years, for the purpose of fixing their seniority as Assistant Executive Engineer.
(3) In the case of a member recruited by transfer, seniority shall be determined in such manner as Government may decide.
(4) That seniority of members of the service shall not be dependent on the rate of pay drawn and seniority shall not be affected by loss of increments in the ordinary time scale of pay. A member of the service whose promotion to the rank of Executive Engineer has been postponed shall, when such pro--motion is sanctioned, resume his original position of seniority unless Government otherwise so directs.
(5) A member directly recruited to the service who is reported to be fully qualified to hold charge of a Division will be promoted to the rank of Executive Engineer on completion of 10 years service, but such promotion shall not establish a right to be placed in charge of a Division, unless a divisional charge is available.
(6) A member recruited by promotion who has completed ---12 years--- service In the Class II service, and who is reported to be fully qualified to hold charge of a Division will be recruited with the rank of Executive Engineer, and a member recruited by promotion who has less than 10 years service in the Class 11- service, who is reported to be fully qualified to hold charge of a Division will be promoted to the rank of Executive Engineer on completing 12 years combined service in the Class Il and Class I Service, but such promotion shall not establish right to be placed in charge of a division, unless a divisional charge is available.
(7) The seniority of a member of the service shall not confer any right to officiating promotion in the rank of Executive Engineer, and Administrative convenience, will determine, whether a, number of the service of less than ten years service or an officer of the Class 11 service is appointed to officiate or not.
(8) For the purpose of sub-rules (2) and (6) the expression Service in the Class II service includes continuous service as Temporary Engineer and Sub-Engineer in the Irrigation Branch, Public Works Department."
6. The appellant claims seniority over respondent No. 2 on the ground that he was appointed to the service earlier than respondent No. 2 and as such he is entitled to seniority over him. He drew our attention to the observations of the learned Judges of the Supreme Court in the case of M. S. Minhas v. The Province of West Pakistan and others Civil Appeal No. 2 of 1958, decided on 4th June 1962, to the following effect:- "(1) There is no express rule determining the seniority of the members of the service like rule 9 of Class 11 Rules which provides that seniority of members of the service shall be determined in accordance with the order of their appointment to the service.
(2) This rule 12 would tend to show that seniority of direct recruits has to be determined in accordance with dates of the orders of appointment, though the rule does not specifically 50.
7. For the fixation of inter se seniority of the appellant vis-a-vis respondent No. 2, the rule directly applicable is sub-rule (1) of rule 15 which provides that the relevant seniority of the members of the service recruited by direct recruitment in any one calendar Year in India and England shall be so regulated that the European and Indian recruits shall be arranged on one list strictly in accordance with the dates of birth. The learned Judges of the Supreme Court in interpreting this sub-rule observed, "sub-rule (1) of rule 15 contemplates cases where in any one calendar year persons have been recruited by direct appoint went both in India and England, and provides that seniority of such persons inter se is to be determined in accordance with the dates of their birth."Thus this rule provides the date of birth for determining seniority and implies that persons appointed in a subsequent year steal rank junior to the persons appointed earlier. It was so held by the learned Judges of the Supreme Court who stated, "It seems to be implicit in rule 15 that if direct recruitment has been made in any calendar year but in different years those who have been appointed first have seniority over those appointed later".
8. The appellant and-respondent No. 2 having been appointed to Class I (Junior) Service in 1959, the dates of their birth must determine their seniority. Mr. S. H. Mahmood having been born on 6-5-1926 is entitled to rank senior to Ch. Altaf Hussain, who was born on 21-7-1926. This is the determination their seniority in Class I (Junior) as Assistant Executive Engineer.
9. As to the determination of seniority under sub-rule (1) of rule 15, the appellant has contended that interpretation of the Supreme Court in using the word "inter se" should be inter--preted as inter se seniority between European and Indian recruits, so that sub-rule (1) provides for fixation of inter se seniority of European and Indian recruits, but not Europeans among them--selves or Indians among themselves. This conclusion is sought try be drawn because of the observation of the learned Judges of the Supreme Court that there is no express rule determining seniority of members of the service like rule 9 of Class 11 rules. The observation is intended to draw attention to the order of appointment to the service which was the rule of seniority in Class II service and to point out that no similar rule exists for Class I Rules. The meaning of sub-rule (1) of rule 15 is clear that inter se seniority of members of the service recruited by direct appointment in any one calendar year is to be arranged in accordance with the dates of their birth. Therefore, we are unable to accept the contention of the appellant that he i.e. entitled to rank senior to respondent No. 2 on the ground of earlier appointment to the service in the rank of Assistant Executive Engineer.
10. As for seniority in the rank of Executive Engineer, it is true that appellant was confirmed as Executive Engineer earlier than respondent No. 2 and the rule invariably being followed by the Department as a rule of practice, he would have ranked senior to respondent No. 2, but by the operation of sub- rule (4) of rule 15, seniority of the respondent has been restored. Where the case of appellant and other officers was being examined, for confirmation as Executive Engineer, in December 1954, the Secretary (Central), Irrigation Department Government of Punjab, ordered the following note:- "Saad Haroon Mahmood Iftikhar Ahmed and Muhammad Afzal Cheema are not officiating officers.
11. They have just over four years service and have not passed, the departmental, examination. I consider their confirmation as Executive Engineers should be postponed, but they should be required to resume their original position of seniority when con--formation as Executive Engineer takes place vide rule 15(2) of the P. S, E. (1) Service Rules.--- This was agreed by the Secretary Establishment Irrigation Branch and Minister concerned on 8-1- 1955. Thus not only was an order specifically made under sub-rule (4) of rule 15 postponing the promotion of respondent No. 2, but in the notification dated the 20th May 1959, by which he was promoted it was clearly stated that in accordance with the rule 15(4) of the Punjab Service of Engineers Class I (Irrigation Branch) Rules, 1941, he resumes his original position of seniority in the service. Thus the requirement of sub-rule (4) of rule 15 being fully satisfied in the case of respondent No. 2, he resumed his seniority over the appellant over whom he was senior. The respondent has explained that all along for years together, he has been shown senior in the gradation and seniority lists and that the appellant has never challenged or represented against his seniority. This fact is contested by the appellant. The -appellant firths; contends that as the postponement of promotion of respondent No. 2 was not notified when 28 officers were promoted to The rank of Executive Engineers on 8-1-1955, the fact of postpone--ment should not be taken notice by the Tribunal. As observed above, the condition being satisfied the respondent No. 2 is entitled to take advantage of sub-rule (4) of rule 15. It entitles him to his original position of seniority. The Government instead of ordering otherwise, directed accordingly.
12. The appellant has further contended that the conditions in sub-rule (4) have not been satisfied and respondent No. 2 cannot have its advantage, because one of the essential requisites he is reported to be fully qualified and fit to hold charge of division, which he was not, and hence he cannot take advantages of sub-rule (4) of rule 15. As to this it only needs to be observed that it was necessary to be reported to be fully qualifies' to hold charge of a division for a claim to promotion to be made under sub-rule (5) of rule 15, but not under sub-rule (4) is which no such condition is provided. The learned Judges of the Supreme Court have also interpreted sub-rule (5) as meaning that the conditions were a requisite for a claim to promotion and not for promotion itself. Therefore, the advantage of seniority which accrues to respondent No. 2 on the ground of postponement of his promotion under rule 15(4) cannot be deniedto him.
13. Holding therefore, that the respondent No. 2 was correctly shown senior to the appellant, we dismiss this appeal and leave the parties to bear their own costs.