1. S. A. MAHMOOD, (CHAIRMAN).-These twelve appeals by Ch Muhammad Yaqub Sindhu, Ch. Muhammad Iqbal Khan, Syed Nazir-ul-Hassan, - Mr. Zahoor-ul-Haq, Mr. Ghulam Yasin, Mr, Rashid Ahmad Hashmi, Mr. Abdul Rashid, Mr. Gul Nawaz -Khan, Mufti Muhammad Saad Ullah, Sh.
2. Muhammad Mukarram, Ch. Nazir Ahmad and Mr. Mushtaq Hussain Qureshi will be disposed of by one order as they arise out of similar facts and raise for decision similar questions. These appeals are in essence directed against the order of Registrar, Co-operative societies dated 26th April 1969 made on the six representations of respondents 3 to, 8 where by the latter were made senior to the appellants and the order of the Secretary to Government of West Pakistan dated 8th July 1969, rejecting the representa--tions of six of the appellants (Messrs .Gul Nawaz, Ch. Rashid Ahmad Hashmi, Zahoor-ul-Haq. Nasir-ul-Hassan and M. S. Mukarram) against it and maintaining the order of the Registrar, CO-operative Societies.
3. As out of respondents in these appeals, Mr. Manzour Ahmad Sethi has been assigned to the N.W. F.
4. P. and M/S. Hamza Ali Mangrio; Ashfaq Hussain, Ismail Omer, Masud Mirza and S. A. Wahid Naqvi have been assigned to the Sind Province and as Mr. Abdul Jamil Siddiqui has died, their names have been struck off from the list of respondents id all the appeals, in which they were respondents.
5. The contesting respondents in these appeals remain the province of the Punjab, and the Regis-- trar. Co-operative Societies, who are represented by Mr. A. G. Humayyun, Government Pleader Syed Mumtaz Hussain Shah, Mr. Faseeh-ud-Din Khan and Mr. Hamid Ahmad, who were represented by Mr. Fazle Mahmood, Advocate and Mr. Naik Muhammad Ropal and Mr. Rafique Ahmad Khan, who were represented by Mr. Munawar Akhtar, Advocate on behalf of Mr. Manzoor Ahmad Sethi, Mr. Maqsood Hasan, Advocate appeared before us. He questions the jurisdiction of this Tribunal to adjudicate on his seniority. As he has been assigned to the Province of N.-W. F. P. and he no longer remains within the jurisdiction of this Tribunal, which has since been constituted as a Punjab Tribunal, his name was decided to be struck off from the list of respondents.
6. Syed Mumtaz Hussain Shah, Mr. Faseeh-ud-Din Khan, Mr. Naik Muhammad Ropal, Mr. Rafique Ahmad. Khan and Mr. Hamid Ahmad who remain as the contesting respondents are direct recruits, who were placed on probation as Assistant Registrars on 1-7-1962, after undergoing two years successful training on appointment as trainees. They were recruited through the Public Service Commission as a result of a competitive examination held for recruitment to the P. C. S. The appellants are promotees from the rank of Inspectors Co-operative Societies. The contest thus lies between promotees and direct recruits. The important question in issue for the determination of the inter se seniority of the direct recruits and the appellants as Assistant Registrars is whether clause (a) (b) or (c) of sub-rule (2) of rule 9 of the West Pakistan Co-operative Societies Service (Class II) Rules, 1963 is; attracted. The Service histories of the appellants, who are all promotees may first be stated:- Ch. Muhammad Yaqub Sindhu was recruited as Inspector, Co-operative Societies on the 28th of February 1948 and was confirmed in 1951. He was promoted as Assistant Registrar, Co-operative Societies (in Class II) on a purely temporary basis until further orders on 13-3-1958 subject to the approval of the Public Service Commission. Approval of the Public Service Commission for his appointment in officiating/temporary capacity until further orders from the date of taking over as Assistant Registrar, was notified on 28th January 1959. He was confirmed as Assistant Registrar on 11/12th November 1970. He was, promoted as Deputy Registrar, Co-operative Societies (in Class I) on 7th October 1968, but was reverted on 23rd 'August 1969. He has been re-promoted as Deputy Registrar on a purely ad hoc basis on 24th January 1970. The appellant claims seniority over the respondent direct recruits,' on the ground that he having been promoted as Assistant Registrar in a substantive capacity from 13-3-58, he is, under rule 9 (2)(c), entitled to rank senior to them. He claims seniority on the basis of rule II of the Punjab Provincial Co-operative Societies (Class II)
7. Rules, 1950. which provide date of confirmation as rule of seniority, In the alternative he relies on rule 9 (2)(c) of the West Pakistan Co-operative Service (Class It) Rules, 1963.
8. Ch. Muhammad Iqbal Khan having joined as Inspector Co--operative Societies on 20ta August 1948, was confirmed on 1-3-52. On 27th April 1959, he was promoted as Assistant Registrar, Co- operative Societies (in Class II) for six months subject to the approval of the Public Service Commission and took over on the 29th April 1959. On 10th November 1959, approval of the Public Service Commission for his appointment to vacancies in Group Sub-Cadre `C' was notified. He- was confirmed as Assistant Registrar on 11/12th November 1959. He claims seniority over the direct recruits on the basis of substantive appointment as Assistant Registrar w.e.f. 29th April 1959, under rule 9 (2)(c) of the 1963 Rules.
9. Syed Nasir-ul-Hassan, Assistant Registrar, having been appointed as Inspector Co-operative Societies on 19-8-1949, was confirmed on 19-8-1953 from 17-6-1951. On 29-4-1959, he was promoted as Assistant Registrar (in Class II) for six months subject to the approval of the Public Service Commission. On 10th November 1957, he was declared, suitable with the approval of the Public Service Commission to be appointed as Assistant Registrar in vacancies in Group Sub- Cadre 'C'. On the same day his promotion, posting and transfer was ordered as a temporary measure. He was confirmed as Assistant Registrar w.e.f. 1-1-1967 on 11/12th November 1970. He claims seniority over direct recruits on the strength of rule 9 (2)(c) of the 1963 Rums on the basis of substantive appointment since 29-4-1959.
10. Mr. Zakoor-ul-Haq, having been appointed as Inspector Co--operative Societies on 29-6-1949, was confirmed w.e.f. 6-2-1951--He was promoted as Assistant Registrar in a purely temporary capacity on 22-5-1958 and took over on 23rd May 1958. On 28th January 1958 the approval of the Public Service Commission to his appointment as officiating/temporary Assistant Registrar w.e.f. 23rd May 1958 was conveyed. On 11/12th November 1970, he was confirmed as Assistant Registrar w.e.f. 1-1- 1957. He also relies on rule 9 (2)(c) of the 1963 Rules for claiming seniority over the direct recruits on the basis of substantive appointment w.e.f. 23-5-58.
11. Mr. Ghulam Yasin was recruited as Inspector, Co-operative Societie3 on 21-8-1949 and on 19-8- 1953 was confirmed w.e.f. 17-1-1952. He was promoted as Assistant Registrar on a purely temporary basis until further orders on 8-9-61 and took over on 12-9-1961.
12. On 3-3-1962, the approval of the Public Service Com mission for his appointment as Assistant Registrar in vacancies in Group Sub-Cadre 'C' was intimated. He was assigned seniority above Ch. Iqbal Muhammad Khan in the batch selected b the Commission in October 1959 and granted pro form promotion on 9-5-1968 w.e.f. 29th April 1959, the date on which his junior Ch. Iqbal Muhammad Khan was promoted. He was confirmed as Assistant Registrar w.e.f. 1-1-1967 on 11th/12th November 1970. On his behalf also reliance is placed on rule 9(2)(c) of 1963 Rules to claim seniority, over the direct recruits on the basis of substantive appointment from 12-9-1961.
13. Mr. Rashid Ahmad Hashmi, having been appointed as. Inspector, Cooperative Societies op 28th June 1949 was confirmed w.e.f. 6-2-1951. He was promoted as officiating Assistant Registrar (in Class II) vied Mr. Mushtaq Amad, who had proceeded on tour. He took over on 23rd May 1958. He was confirmed as Assistant Registrar on 10th/11th November .1970 w.e.f. 1-1-67. He has been promoted us ad hoc Deputy Registrar on 9-10-70. He has been, placed senior to Mr. Zahoor-ul-Haq on his representation.
14. Mr. Gul Nawaz Khan, having been appointed as Inspector Co-operative Societies on 6-3-1948 was confirmed w.e.f. April 1950. He was promoted as Assistant Registrar (in Class II) in a temporary, capacity until further orders on 8-3-1958 subject to the approval of the Public Service Commission.
15. He took over on 13th March 1958. On 28th January 1959 approval of the Public Service Commission to his promotion as officiating/ temporary from the date he took over as Assistant Registrar and until further orders seas notified on 11/12th November 1970, he was confirmed as Assistant Registrar w.e.f. 1-7-1965. He was promoted as Deputy Registrar w.e.f. 1-2-1967.
16. Mufti Muhammad Saad Ullah Khan having beers recruited as Inspector, Co-operative Societies on 27-6-1949 was confirmed w.e.f. 16-6-1952. He was also appointed as Co-operative Marketing Officer which was a special Gazetted post. On 10-11-1959, he was notified as having been approved by the Public Service Commission for promotion as Assistant Registrar against vacancies In Group Sub-Cadre 'C' and appointed in a purely temporary capacity as Assistant Registrar on the same day.
17. Sh. Muhammad Mukarram, having been appointed as inspector Co-operative Societies on 4-7- 1949, was confirmed w. e. f. 16-4-1952. On 10-11-1959,approval of the Public Service Commission for his appointment as Assistant Registrar in a vacancy in group sub-cadre 'C' was noti--fied and his order of promotion was made on the same day as a purely temporary arrangement. He took over on 19-10-1959 he has not yet been confirmed. He also claims seniority over recruit under rule 9(2)
(c) on the basis of substantive appointment as Assistant Registrar from10-11-1959.
18. Ch. Nazir Ahmad having been appointed as Inspector, Co-operative societies on 5-7-1949, was confirmed from 23rd April 1952. On 10-11-1959, the approval of the Public Service promotion to a vacancy of Assistant Registrar in sub-cadre 'C' was notified and he was promoted on the same day in a purely temporary arrangement. As he was deputation to village Aid Administration, he took over as Assis--tant Registrar on 16-7-1960. He is not yet confirmed. He claims seniority as Assistant Registrar over the direct recruits under rule 9(2)(c) on the basis of substantive appointment w. e. f. 10-11-1959.
19. Mr. Mushtaq Hussain Qureshi, having been recruited as Inspector Co-operative Societies on 27-6- 1949, was confirmed w. e. f. 28-2-1953. He was promoted as Assistant Registrar in a purely temporary capacity on 2-8-1959. On 10-11-1959, he was notified as approved by the Public Service Commission as being suit--able for promotion as Assistant Registrar in a vacancy in Group Sub- Cadre 'C'. He was promoted as Officiating Assistant Registrar w. e. f. 2-3-1960 and allowed to remain on deputation with the Village Aid Administration as Development Officer.
20. The circumstances, in which the direct recruited respondents were recruited as Assistant Registrar may now be stated, as it is necessary to determine for the purposes of application of clause (a) (b) or (c) of rule 10, whether they were recruited to substantive or temporary vacancies, though it must be conceded that ostensibly they were assigned temporary vacancies, when they were selected for appointment as Assistant Registrar and placed on training from 1-7-1960 and if the determining factor for seniority be the nature of vacancies provided at initial recruitment of direct recruits and promotion of promotees, then the latter are all senior to the respondents, as their dates of promotion are earlier, since both were provided temporary vacancies.
21. Rule 5(2) of the Punjab Provincial Co-operative Service (Clause II) Rules, 1950 provided that not less than 2, 33 and 1/3 per cent of the vacancies of Assistant Registrars shall be filled by direct recruitment and the remainder by promotion. On integration, however, in the integration letter dated 25th November 1955, the ratio of direct recruits and promotees was fixed at 50 : 50.
22. Therefore, 50 per cent of the vacancies in West Pakistan had to be filled by promotion and 50 per cent by direct recruitment. The Registrar, Co-operative Societies originally wrote to the Secretary to Government of West Pakistan Social Welfare and Local Government Department on 14th September 1956 for recruiting three Assistant Registrar directly through the West Pakistan Public Service Commission. On 1st January 1958, when he again wrote to the Secretary to the Government of West Pakistan, he required that the West Pakistan Public Service Commission may be moved to select 7 Assistant Registrar candidates instead of three originally suggested and the requisi--tion form submitted by him earlier may be amended accordingly. He explained that the earlier requisition for recruitment of three direct Assistant Registrar candidates for vacancies likely to occur in group sub-cadre 'C' was being modified and recruitment of 7 candidates was being suggested, because the vacancies likely to occur in the Province of West Pakistan during the period ending December 1959, were going to be 20, out of which 9 had to be earmarked for direct recruits, and a request for recruiting seven officers was being made, and two vacancies for direct recruits were being carried over, so that a reasonable number of direct recruit is taken every year. He pointed out that this would necessitate creation of 7 temporary posts instead of three to accommodate the seven directly recruited Assistant Registrars during the two years period of training. In the requisition form, forwarded by the Registrar to the Secretary to Government of West Pakistan the nature of the appointment was described as a temporary, likely to be made permanent and it was mentioned that the selected candidates would have to execute an agreement bond binding themselves to serve the Co-opera--tive Department, for at least five years after completion of their training or to refund the amount of pay and allowances drawn by them during the period of training in case they left the department earlier. The pay admissible during the period of training was Rs. 210 with usual allowances in the scale of Rs.250-20-450/25- 600/700. The prospects of promotion for trainees was indicated as appointment to the permanent cadre of Assistant Registrars, Co-operative Societies when the Govern--ment notified the West Pakistan Public Service Commission that 7 posts of Assistant - Registrars, Co-operative Societies were to be filled through the Public Service Commission, the West Pakistan Public Service Commission issued a modified advertisement intimat--ing that 7 instead of 3, posts of Assistant Registrars of Co-opera--tive Societies may also be filled on temporary basis for a period of one year on the basis of the result of West Pakistan Civil Services (Executive Branch) Competitive Examination to be held in 1958. Seven persons namely Syed Mumtaz Hussain Shah. Mr. Manzoor Ahmad, Mr. Faseeh-ud-Din Khan, Malik Nek Mohammad Iqpal, Mr. Rafique Ahmad Khan and Mr. Hamid Ahmad respondents and Mr. Hassan Abbas Kazmi were selected for appointment as Assistant Registrar candidates for undergoing training. Their names are mentioned in the order of merit except that Mr. Hassan Abbas Kazmi was at serial No. 2. Letters of appointment issued to them indicated that they were selected as candidates for temporary posts of Assistant Registrars and required them to execute an agreement each binding themselves to serve the Co-operative Department for at least five years after the successful completion of their training for two years.
23. They had to pass the departmental examination. After completion of the training, they were to be put on probation for two years as Assistant Registrars. Their service could be terminated at one month's notice on either side and they were to be governed by the new rules when finalized. Thus there can be no doubt that the directly recruited respondents are governed by, and their seniority has to be determined in accordance with, rule 9 of the West Pakis--tan Co-operative Service (Clause II) Rules, 1963. The six directly recruited respondents accepted the appointment, and were notified in the West Pakistan Gazette of 15th July 1960, as having been selected for temporary posts of Assistant Registrars and to have joined for training in the West Pakistan Co-operative Training Institute on 1-7-1960 when the six directly recruited respondents completed their training successfully on 19-6-1962, they were posted as probationer Assistant Registrars, Co-operative Societies w. e. f. 1-7-1962. To be precise, in the posting orders, dated 19th June 1962, Messrs Malik Naik Mohammad Ropal, Mumtaz Hussain Shah, Rafique Ahmad, Faseeh-ud-Din Khan and Hamid Ahmad were described as probationers. Again in the posting order dated 30th June 1962, Messrs Manzoor Ahmad, Malik Naik Mohammad Ropal, Mumtaz Hussain Shah and Hamid Ahmad were described as probationers. This was in accordance with the conditions on which they were selected i.e. that after the completion of their training, they would be on probation for a period of two years. The respondents claim appointment to substantive vacancies from 1-7-1962, the date on which they were posted as probationer Assistant Registrars, Co-operative Societies. On 15th October 1969, the directly recruited respondents were confirmed against substantive vacancies as follows:- Though the above confirmation order indicates the vacancies against which the directly recruited respondents have each been confirmed, and there should, therefore, be no dispute about it, it has been vehemently argued on behalf of the appellants that no vacancies were available for their confirmation from 1-7-1962 because all the vacancies were filled by promotees and no vacancy was actually available for the confirmation of the respondents. It is, therefore, urged that, having been provided with temporary vacancies, these respondents cannot claim appointment as Assistant Registrar o substantive vacancies not even from 1-7-1962 since no substantive vacancies were in fact available for their appointment to such vacancies. On behalf of the Government and respondents a list of such vacancies as were available as produced before us and has been marked Exh. R. 7 (in the case of Muftee Saadullah's appeal).
24. Before dealing with the main question. in issue as to the nature of the vacancies to which the directly recruited respondents were appointed on 1-7-1962, it is necessary to state that in the provincial seniority lists published on 18-12-1964, 16-12-1965, 22-4-1967 and 1-6-1968, direct recruits respondents were shown junior to the appellants (who are departmental promotees, and the direct recruits had made several representations against the fixation of their seniority but in the seniority list circulated on 1-10-1970, the situation was reversed and in it the six respondents, who are direct recruits, were shown senior co appellants. This was as a result of order dated 26-4-1969 made by the Registrar on the representation of the direct recruits and the order of the Secretary to Government of West Pakistan in the Co-operative Department dated 8-7-1969 by which the appeals/representations by six of the appellants were rejected by the Secretary to Government of West Pakistan in the Co-operative Department.
25. The reasons, which led the Registrar, Co-operative Societies to accept the appeal/representation of the direct recruits respondents in his, order dated 26th April 1969 are as follows:-
(1) That the recruitment of direct Assistant Registrars was-- requisitioned against their reserved quota under rule 5(ii) of the Punjab Provincial Co-operative Service Rules, 1951 read with Integration Circular dated 25th November 1955 which prescribes 50:50 ratio for promotees and direct recruits.
26. Thus their share of vacancies both in posts on all West Pakistanbasis and in Group Sub-Cadre 'C' had to be offered to direct recruits.
(2) That 20 permanent vacancies had occurred during the period of probation of direct recruits as was evident from R. C. S. No. 1378-E, dated 14-9-1956 read with No. 2-E, dated 1-1-1958, but these vacancies were given to promotees under Order No. SOC (I)-1-64-62 dated 17-4-63, and was further indicated by notifications of even number dated 24th August 1963 and 20th January 1964.
(3) That the appointment of direct Assistant Registrarsfrom 1-7-1962 was made to save the promotees from reversion,and as such it was a favour to them at the cost of the due rights of the direct Assistant Registrars due to them under the terms and conditions of their appointment.
(4) That the moment a temporary likely to become a per--manent vacancy changes into a permanent vacancy, it has to be considered as such and it is for the administrative depart--ment to determine the actual position.
(5) That in determining whether a vacancy had to be filled in by direct recruitment or by promotion, the percentage prescribed under the rules 50:50 had to be taken into considera--tion under para.13 of the Integration letter.
(6) That the Tribunal set up to report on the inter se seniority, obviously was intended to assist the Government, but the Tribunal did not have the power to take decisions.
(7) That the view of the Deputy Registrar's conference could not override the rules and Government instructions.
(8) That it wars clear that the Government's intention was to absorb the direct recruits in Group Sub-Cadre they were to be absorbed on substantive basis.
(9) That as the rules required, a definite percentage of vacancies to be reserved for direct recruits to be filled in by initial recruitment, they were entitled to get the benefit of seniority from the date of substantive appointment, and there should be no heart burning of any kind.
27. The Registrar, Co-operative Societies having come to the conclusion that the six respondents were directly recruited against vacancies reserved for initial recruitment in the cadre of Assistant Registrars in terms of the Integration Circular was of the view that though the posts actually offered to them were temporary likely to become permanent, they Were permanent or were to become permanent. All the direct recruits were to be on probation during the period of probation and were thus for all intents and purposes to be treated as probationers in terms of rule 2.49 of the C. S. R.
28. Vol. I, Part I. He further cameto the conclusion that these recruits having been recruited m against six permanent vacancies, the promotees were erroneously confirmed in those vacancies. In his view if they were decon--firmed it would lead to serious repurcussions. He, therefore, directed that the direct recruits should be confirmed against the existing permanent vacancies without disturbing the existing date of confirmation of promotees, who were wrongly confirmed against the vacancies reserved for the direct recruits. He ordered the confirmation of Messrs Malik Naik Mohammad Ropal, Ch. Hamid Ahmad, Faseeh-ud-Din Khan and Rafique Ahmad Khan w.e.f.1-7- 1962, leaving the question of con--firmation of Mr. Mumtaz Hussain Shah pending to be decided after completion of the enquiry against him. He further ordered that under the rules, the direct recruits were to rank senior to promotees, but as promotees had been erroneously confirmed, he thought that the best solution in fairness to the direct recruits and the promotees was to direct that the direct recruits be placed immediately below Malik Inamul Haq, the last man confirmed vide notification dated 24th August 1963. He therefore, directed the reversion of the seniority lists assigning the direct recruits their proper places.
29. Against the order of the Registrar, Co-operative Societies, directing confirmation and fixing seniority of the direct recruits, Messrs Gul Nawaz Khan, Ch. Rashid Ahmad, Rashid Ahmad Hashmi, Zahoor-ul-Haq, Nasir-ul-Hassan and S. M. Mukarram, appellants filed representations/appeals before the Government of West Pakistan. The main contention raised by them was that as the direct recruits were appointed purely on a temporary basis, they were not probationers within the purview of rule 2.49 of C. S. R. Vol. II, Part I. They claimed that the seniority fixed by the Registrar, Co- operative Societies by his order dated 26th April 1969 should be set aside and their old seniority should be restored according to the previous seniority lists. They mainly relied on the wording of the requisition form sent to the Public Service Commission which mentioned that the posts were temporary likely to be made permanent and recruitment was to, be made purely on a temporary basis for a period of one year. This contention was repelled for several reasons. In respect of the statement in the requisition form as to the recruitment being purely temporary, it was stated in the order that the requisition form was self-contradictory and ambiguous and no importance could be attached to its wording. What bad in fact to be seen was as to what was the intention of the Government when the direct recruits were appointed. The background of their appointment was that in 1956-57, the Registrar, Co-operative Societies had worked out that twenty vacancies of Assistant Registrars were to occur by 31st December 1959 out of which nine had to go to directly recruited Assistant Registrars, but the Registrar had only, in a requisition for seven appointments through the Public Service commission and though the seven posts were shown temporary likely to become permanent, the vacancies were to all intents and purposes, permanent. This was clear from the letter of the Registrar, co-operative Societies, dated 1-1-1958. It was the usual practice with the department to get temporary posts created for the training period for directly recruited Assistant Registrars but; this could not deprive the directly recruited Assistant Regis--trars of their quota of reserve vacancies. In any case, seven vacancies reserved for Assistant Registrars were available, when it was decided to recruit the seven directly recruited Assistant Registrars and they were recruited against those posts. It could not be imagined that Government had the intention of recruiting the Assistant Registrars on a temporary basis giving them training for two years and appointing them on temporary basis for one year only. If this was the intention, the Government could conveniently promote Inspectors to fill those vacancies on ad hoc basis, as was being done frequently. It was pertinent that after selectionwhen the orders of appointment were issued to the seven directly recruited Assistant Registrars, it was mentioned therein that they would undergo two years training and after successful completion of training they would be put on probation for two years. Obviously, after receiving two year training they had to be appointed on probation for two years and were rightly shown as probationers in Government's posting order dated 19-6-1962. This showed clearly that the seven directly recruited Assistant Registrars were appointed against permanent vacancies which were available at the time.
30. As regards the fixation of seniority of the promotees, it was opined that it had to be fixed in accordance with para.7(c) of the Integration Circular i.e., their seniority had to be taken from the date of their substantive appointment as Assistant Registrars. In the case of directly recruited Assistant Registrars, it had to be taken from the date of their appointment on probation. Out of the 20 vacancies, which occurred up to 31st December 1959, 13 were to go to promotees and seven to the directly appointed Assistant Registrars, but instead 19 promotees were wrongly confirmed against these vacancies. Consequently, six junior most officers out of them would have to be disconfirmed. Thus the order of the Registrar, Co-operative Societies fixing the seniority of the Assistant Registrars was held to be sound and in accordance with the rules and regulations. The representations by the six appellants were rejected after hearing the appellants. This was conveyed in the Government of West Pakistan's letter dated 9th July 1969 and it was directed that necessary action of deconfirming the six junior most Assistant Registrars be taken. After a show- cause notice served on them, Ch. Abdul Hamid, Mian Sher Bahadur, Ch. Jawahar Khan, Muhammad Sadiq Hashmi, Ch. Mushtaq Ahmad and Malik Inam-ul-Haq, confirmed. Assistant Registrars, who were all senior to the appellants were deconfirmed. They have not successfully moved against their own deconfirmation or challenged in a Court the order of confirmation of directly recruited respondents. Thus those Assistant Registrars, who were directly effected by re- fixation of seniority and confirmation of the directly recruited respondents have remained satisfied with the order of deconfirmation, may be for the reason that they were confirmed from subsequent dates. The result is that an anamolous position would arise if this appeal were to succeed and the appellants were to be made senior to the directly recruited respondents, because the appellants would become senior to the above six deconfirmed Assistant Registrars, who were their seniors.
31. The main contention of the appellants in this case has beets that whatever posts were available and fell vacant up to 31st December 1959, were filled up by promotees and as no posts were available, and the direct recruits were appointed to temporary vacancies, they were not appointed to any substantive vacancy. It has been pointed out that as 21 posts were filled up before integration, and three Assistant Registrars were directly recruited, seven substantive vacancies were not anyhow available for the direct recruits, and even if 21 vacancies did exist, they were filled on 17-4-1963 by promotion of Inspectors of Co-operative Societies as Assistant Registrars. It appears from office noting available in the appeal by Mr. Mohammad Yaqub Sindhu that out of 20 permanent vacancies 19 vacancies were filled by promotees on 17-4-1963, 24-8-1963 and 1-1-1964, when direct recruits were nearing completion of their probationery period. Thus in the available vacancies, Inspectors were promoted as Assistant Registrars, and were even confirmed. While they may have been promoted temporarily until directly recruited Assistant Registrars were available, these posts should not have been filed by confirmation of promotees. It is because the 19 vacancies had been filled up that six promoted Assistant Registrars had to be deconfirmed to make six vacancies available and to give due seniority to the direct recruits.
32. The six vacancies against which the directly recruited respondents have been confirmed from 1-7- 1962 are shown -Above against the name of each of the direct recruit, so that substantive posts were made available from the date to them. They having been confirmed existing vacancies have been made available from the date of their confirmation, namely 1-7-1962. The appellants have not been able to show that these vacancies were not available from 1-7-1962. If the directly recruited respondent haw been confirmed against substantive vacancies from 1-7-1962, they are entitled to count their seniority by reason of appointment to substantive vacancies from that 4ato on the basic of the rules as we shall presently mention. The fact that the directly recruited Assistant Registrars were notified as probationers in its self shows that substantive vacancies must have been available for their being notified as probationers.
33. On behalf of the appellants the fact was seriously challenged that 20 vacancies were available and occurred by the 31st December 1959, so that 9 vacancies had to be reserved for direct recruits.
34. They contended that as 3 direct recruits, namely:
(i) Ch. Abdul Majid
(ii) Ch. Shahab-ud-Din
(W) Ch. Rashid Ahmad were recruited in 1953, nine vacancies were not available for direct recruits. We are, however, satisfied that w. e. f. 14-10-1955 to 31st December 1959, 20 vacancies of Assistant Registrars in Class-II fell vacant, and consequently in view of the rules, 9 vacancies had to be reserved for direct recruits. The effect of reservation- of vacancies for direct recruits and promotees is that promotees appointed against vacancies reserved for direct recruits cannot claim any substantive appointment in those pots and it would be deemed to be a temporary arrangement. Therefore, even if in the vacancies reserved for direct recruits; some of the promotees were promoted, their promotion would not be substantive and they would be holding the posts temporarily and not substantively. The vacancies reserved for direct recruits heaving been meant for recruitment of direct recruits, had to be filled by direct recruits only direct recruits could be substantively appointed to these vacancies. From a statement filed by the Deputy Registrar (Amend.) on behalf of the Registrar, Co-operative Societies, Punjab, it appears clearly that 20 vacancies occurred from 10th October 1955 to 31st December 1959. Six permanent vacancies became available by conversion of 7 temporary posts (one intended for Lady Assistant Registrar) into permanent posts w. e. f. 14th October 1955. This is evidenced by Memo. No. 47/119/59 C & M-I, date 25th November 1957 from the Secretary, to Government of West Pakistan Social Welfare and Local Department to the Registrar, Co-operative Societies, West Pakistan, Lahore. Six vacancies became available due to confirmation in Class-I of S. Ghulam Sarwar Shah, S. Dur-e-Hussain Shah, Khan Said Hussain Khan, Raja Abdul Hameed, Mian Muhammad Azim and S. Wajid Ali Shah. Two further vacancies became available by having been vacated by Major Bashir Ahmad and Captain paid Akhtar who were granted permanent Commission in Pakistan Army.
35. One vacancy became available as a result of the death of Mirza Azam Beg. Six permanent vacancies occurred as a result of the retirement of Pir Atta Ullah, Chaudhry Sultan Muhammad, Ch. Ahmad Khan, Mir Wasi Muhammad, Sardar Sahib Khan Khosa and Ch. MuhammadYusuf. These totalled up to 21 vacancies. Thus, we are satisfied that 21 permanent vacancies did occur in between 14-10-1955 and 31-12-1959, against which 7 direct recruits were intended to be recruited in view of the reservation of quota them under Rules.
36. In the case of directly recruited respondents, there can toe no doubt whatever that they are governed by the West Pakistan Co-operative Service (Class II) Rules, 1963, since in the letter of appointment, which issued to them it was specifically stated that they would be governed by the service rules, when they are enforced. The appellants do not dispute the application of these rules to them. Therefore, the question which remains to determine is their intense seniority under rule 9 of these Rules. Since the direct recruits were initially recruited and the appellants, as promotees, were otherwise appointed, the rule applicable for determination of their inter se seniority is 9(2) of the Rules, which provides as under :- 9(2). The seniority in the various grades of the service of the Members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined-
(a) in case both the officer appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies, with reference to the date of appointment to such vacancy in the case of the official appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of officer appointed otherwise provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment.
(b) in case the officer appointed by initial recruitment has been appointed against a substantive vacancy and the officer appointed otherwise has been appointed against a temporary vacancy, the officer appointed by initial recruitment shall rank senior to the officer appointed otherwise ; and
(c) in case the officer appointed otherwise is appointed against a substantive vacancy and the officer appointed by initial recruitment is appointed against a temporary vacancy, officer appointed otherwise shall rank senior to the officer appointed by initial recruitment.
37. The inter se seniority of the appellants and the direct recruits depends on which of the three clause
(a) (b) or (c) 4s applicable to their case. Since the direct recruits were appointed against vacancies reserved for their recruitment, which were intended to be substantively filled by recruiting them (and that is why they were notice 1 as probationers Assistant Registrars) and as the appellants were appointed against temporary vacancies and not substantive vacancies reserved for promotees, the clause applicable to their case for determination of their inter seniority is clause
(b) of rule 9(2). Therefore, the direct recruit are entitled to rank senior to the appellants, who were appoints otherwise against vacancies, not substantively intended for them and which were temporary vacancies. The appellants have no been able to prove that they were initially appointed to substantive vacancies.
38. We are inclined to hold that the directly recruits respondents were appointed against substantive vacancies, because 20 permanent vacancies had actually occurred and they were recruited through Public Service Commission to the quota of vacancies reserved for hem, to which they were intended of to be substantively appointed and not only for the temporary period of training or for one year, although in the advertisement and in the letter of appointment issued to them, the appointment was described as temporary. It was actually not temporary, but was substantive for all those, who were able to undergo asuccessful period of training, for the reason that they were appointed to vacancies, which had actually occurred, andwhich were reserved for direct recruits.
39. They were required to furnish a bond to serve the department for five years, and they were to by placed on probation on successful completion of their training. It is true that during the period of training temporary vacancies were created for them in accordance with the, practice prevailing in the department as in the exigencies of departmental requirements, temporary promotions of promotees were made in the vacancies reserved for direct recruits. Still there can be no doubt that from the date on which they were placed on probation they were substantively appointed, because vacancies had to be available for them to be appointed as probationers. The crucial time, when the nature of their employment and their status has to be examined, is the time when they were placed on probation, as before thereto they had the status of trainees. The former rules clearly indicated that during the period of training, Assistant Registrars were merely trainees, who are not members of the service. The 1963 Rules provide no clear in indication to the contrary. The departmental practice continues to treat them as trainees and, therefore, they became members of the services from the date of appointment on probation.There can be no doubt whatever that as probationers they were appointed to substantive vacancies. Therefore, the nature of the vacancies provided during the period of their training is not decisive. They only claim to have been appointed substantively and to the services w. e. f. 1-7-1962, when they were placed on probation.
40. The appellants have prevaricated and yet have been unable to prove that they were appointed to substantive vacancies. In fact it is clear beyond doubt that they were promoted in temporary capacity and filled temporary vacancies. They do not even claim to have been substantively appointed to vacancies, which have been assigned the direct recruits or to existing sub--stantive vacancies meant for promotees. The vacancies to which they were promoted were either temporary or stop-gap. There were vacancies intended for the recruitment of direct recruits but those vacancies were held by others. It should be remembered that not the appellants, but other Assistant Registrars senior to the appellants had to never.Therefore, the appellants were very junior, and none of the appellants was appointed to a sub--stantive vacancy. The direct recruits having been appointed substantive vacancies, were entitled to rank senior to them as heldby the Registrar, Co-operative Societies and the Secretary to Government of West Pakistan.
41. Examination of each individual case of the appellants shows that Ch. Muhammad Yaqub Sindhu appellant was promoted assistant Registrar on 13-3-1958 on a purely temporary basis until further orders, subject to the approval of the Public Service commission. With the approval of the P. S. C. confirmation was notified on 11/12th November 1970 w. e. f. 16-8-1966. Therefore, his date of officiation as Assistant Registrar in a temporary vacancy began earlier but is date of substantive appointment is later than the date of directly recruited respondents. Ch. Iqbal Muhammad Khan appellant was promoted for six months subject to the approval of the P. S. C. on 27th April 1959 and he took over on 29th April 1959. The approval of the Public Service Commission to his promotion as Assistant Registrar was notified on 10th November 1959. He was confirmed as Assistant Registrar from 1-1-1967. Therefore, he is in the same position as Ch. Muhammad Yaqub Sindhu. Syed Naseer- ul-Hassan, Assistant 1-registrar, appellant was also promoted for six months subject to the approval of the P. S. C. on 29th April 1959. The P. S. C. s approval was notified on 10th November 1959, and on the same day, his promotion, posting and transfer was ordered in a purely temporary capacity. He was confirmed as AssistantRegistrar w. e. f. 1-1-67. His position is the same as that Chaudhry Muhammad Yaqub Sindhu. Mr. Zahur-ul-Haq, appel--lant, was promoted in a temporary capacity on 22-5-1958. On 28-1-1959 his officiating/temporary appointment with the approval of the Public Service Commission was notified from the date he took over. He was confirmed w. e. f. 1-1-1967. His position is also the same as that of Ch. Muhammad Yaqub Sindhu, Mr. Ghulam Yasin was promoted as Assistant Registrar on a purelytemporary basis until further orders on 8-9-1961. On 3-3-1962, he approval of the Public Service Commission for his appoint-- ment to a vacancy in Group Sub-Cadre 'C' was notified. He was greeted proforma promotion from 29th April 1959. He was also confirmed as Assistant Registrar w. e. f. 1-1-1967. His position is, therefore, the same as that of Ch. Muhammad Yaqub Sindhu.Mr. Rashid Ahmed Hashmi was promoted as officiating Assistant Registrar vice Mr. Mushtaq Ahmed, who had proceeded on a \ study tour abroad. The order of promotion is dated 20th May 1958, but he took over on 23rd May 1958. He was also confirmedw. e. f. 1-1-1967. He is in the same position on Ch. Muhammad Yaqub Sindhu. Mr. Abdur Rashid was promoted as officiating Assistant Registrar on 8-3-1958, but took over on 1-4-1958: His promotion was subject to the approval of the Public Service Commission, purely temporary and until further orders. The Public Service Commission's approval to his promotion was notified on 28th January 1959. He has been confirmed as Assis--tant Registrar from 16-12-1966. Mr. Gul Nawaz Khan was promoted as Assistant Registrar in a temporary capacity and until further subject to the approval of the Public Service Commissionon 8-3-1958. He took over on 13th March 1958. On receipt of the advice of the Public Service Commission, he was notified aspromoted in officiating/temporary capacity w. e. f. thedate he took over and until further orders. He was confirmed w. e. f. 1-7-1965. Muftee Muhammad Saddullah was promoted as Assistant Registrar in a purely temporary arrangement on 10-11-59. He having been approved for promotion by the Public Service Commission, he took over on 13th November 1959. He is not yet confirmed Thus his promotion being a purely temporary arrangement he cannot be held to have been promoted against a substantive vacancy and his case would fall under rule 9 (2) (b). The approval of the Public Service Commission to the promotion of Sh. Muhammad Mukarram as Assistant Registrar having been notified on 10-11-59 he was promoted on the same day as Assistant Registrar in a purely temporary arrangement. He took over on 19-11-1959. Thus his promotion being purely temporary, his case is also covered by rule 9 (2) (b).The case of Ch. Nazir Ahmed is similar, the approval of Public Service Commission to his appointment having been notified on 10-11-1959 he was also promoted as Assistant Registrar in a purely temporary arrange--ment. He took over on 16-7-1960 as he was on deputation to Village Aid Administration. His case is also covered by rule 9
(2) (b). Mr. Mushtaq Hussain Qureshi was promoted as Assistant Registrar on 2-8-1959 on a purely temporary basis, subject to the approval of the Public Service Commission. The approval of the Public Service Commission to his promotion as Assistant Registrar was notified on 10-I1-1959. On 21- 3-960, he was promoted as Assistant Registrar with the approval of the Public Service Commission w. e. f. 2-3-1960 as Officiating Assistant Registrar and he was allowed to remain on deputation withto Village Aid Administration.
42. The appellants have not been able to prove that they were substantively appointed before the relevant date, on which the direct recruits respondents have been held to have been substan-- tively appointed, namely 1-7-1962. Indeed this was not what was originally their case before us.
43. Their case originally was that as they began to officiate in temporary vacancies earlier than the direct recruits respondents, they were entitled to rank senior to the direct recruit respondents under Clause (a) of rule 9 (2). Indeed if they had been substantively appointed, it could not have been a matter outside their knowledge and should have been easy enough for them to prove to bring on record copies of relevant orders, which they have failed to do. Argu--ments for the appellantscommenced on 23rd of November 1970, and the cases were argued on the 24th and 25th November and then adjourned to 24th December 1970. On the appellantsapplication, the files, which they required to be produced, were ordered to be produced before us. Some of these files were produced, but some were not available, because of the mixing up of the record in view of disintegration of the Province. The hearing of the appeals was again taken tip on 24th December and was continued. The were fixed for all final arguments on 18th January 1971, and the appellants were told that they could produce further comments if they so desired. No order of substantive appointment of the appellants prior to the relevant datenamely 1-7-1962, has been produced by tile appellants.
44. Therefore, we must hold that the appellants have been unable to prove that they sere appointed to substantive vacancies before the direct recruit respondents were so appointed on 1-7-1962. The relevant clause applicable being clause(b) ofrule9 (2).
45. For the reasons stated above, we see no force in any of the 12 appeals before us, which are hereby dismissed, but there will be no order as to costs.
46. Name of officerDate of confirmationVacancy S.Mumtaz Hussain Shah1-7-1962 Vice Pir Atta Ullah.
47. Mr. Faseeh-ud-Din Khan1-7-1962 Vice Ch. Sultan Mohd (Retired)
48. Mr. Naik Mohd. Ropal 1-7-1962 Vice Ch. Ahmad Khan (Retired)
49. Mr. Rafique Ahmad Khan1-7-1962 Vice Mr. Wasi Mohd. (Retired)
50. Mr. Hamid Ahmad 1-7-1962 Vice Sardar sahib khan (Retired)