S. HAFEEZ-UR-REHMAN (MEMBER). -Through this appeal, Zahid Aziz Khan, who is a Social Welfare Officer in the Social Welfare Department, impugns the seniority list of cadre officers issued by the Director, Social Welfare, Punjab on 20th February 1974, wherein he is shown at serial No, 154 seeks to be declared senior to respondents No, 3 to 99 and placed immediately after Manzoor Ahmad (Serial Nos. 54). As another seniority list was published by the Secretary, Social Welfare and Zakat Department, Punjab on 1st January 1981, the appellant was allowed to amend his appeal and implead that officer also. According to the appellant his position remains the same in the new seniority list, except that respondents 3 and 4 have now been shown junior to him and his case against them has became infructuous. The appellant also pleads that he be placed vis-a-vis repondents Nos. 91 to 99 in the order assigned to him and to these respondents by the Selection Board for Attached Departments as he alongwith them were selected in the same batch. Moreover, he wants the respondent department to correct in the seniority list his date of appointment against a gazetted post and the date of his approval as S.W.O. By the PSC/Selection Board.
2. The parties were heard, the respective documents filed by them examined and the record of the case and the relevant departmental file sent for and gone through. The case of the appellant, as argued by his learned counsel, can be briefly stated. The appellant was selected as direct recruit by the Selection Board on 20th February, 1969, joining service on 17th March, 1969. Respondents 5 to 90 originally joined service on various dates ranging between the years 1963 and 1968 on ad hoc basis. They were approved by Selection Board on 11th May, 1970. Their appointments were regularised from the date of their original ad hoc appointment ranging between 30th November, 1963 and 3rd August 1968, vide Notification dated 13th May 1970 which contained, inter alia, the following conditions of appointment :- "(a) The ad hoc appointments have been regularized w,e,f, the date of actual appointment in each case ;
(b) Seniority In terse of persons appointed in a particular batch would be determined in accordance with the order of the merit assigned by the Head of the Department on the basis of the marks obtained by each person at the time of interview ; and
(c) Persons selected in an earlier batch shall rank senior to the persons selected in a later batch."
3. The respondents accepted these conditions. They appeared at serial Nos. 57 to 142 in the first Seniority List of 20th February, 1974 and at Serial Nos. 35 to 65 and at Serial Nos. 71 to 113 in the tentative Seniority Lists of 5th July, 1978 and at Serial Nos. 30 to 111 in the final List.
4. The question in issue is from which dates Respondents Nos. 5 to 90 are entitled to count their seniority: whether from the date they were approved by the Selection Board (11th May1970)or from the various dates of regularization of their ad hoc appointment or from Ist January, 1970 us fixed by special Not dated 28th February 1970. The learned counsel for the appellant claims that these Respondents are primarily entitled to seniority from 1st January, 1970 i,e, the date fixed by Notification dated 28th February 1970 or from 11th May, 1970. In any case, according to him, these Respondents are not entitled to seniority from the date of their regularisation which was not for the purpose of seniority. The appellant's claim is that he is entitled to seniority from 20th February 1969, which is not controverted, and since that date is earlier than 1st January, 1970 and 11th May 1970, therefore he is senior to them. The learned counsel supported the appellant's claim by the following Rules, Law and precedents :-
(i) Rule 8 (I) (a) of the West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964, is the only rule for fixation of seniority inter se of direct recruits. This rule reads as under "8. The seniority inter se of the holders of the posts in the various cadres shall be determined as-
(a) in the case of persons appointed by initial appointment in accordance with the order of merit assigned by the Commission ; provided that persons selected for posts in an earlier selection shall rank senior to the persons selected in a later selection."
It is contended that since the appellant was selected on 20th February 1969 and the respondents were selected on 11th May, 1970 the appellant is a person of earlier selection, hence senior to them.
(ii) The appellant also relies on the Government of West Pakistan Notification No, SORIII-1-40/69 dated 28th February, 1970 which reads as follows :- "In pursuance of the provisions of the Martial Law Proclamation of 25th March, 1969 read with the Provisional Constitution Order, and in exercise of all powers enabling him in that behalf, the Governor of West Pakistan is pleased to direct that notwithstanding anything to the contrary contained in any rules relating to the method of recruitment or the age for appointment to any service or post under the rule-making authority of the Governor of West Pakistan ;
(a) every person appointed on ad hoc basis to any service or post under the rule-making authority of the Governor of West Pakistan whose appointment to such service or post has not been regularised for any reason shall, with effect from the date of this Notification be deemed to have been regularly appointed to such service or post provided that :-
(i) Such person has continuously served in such Service Or Post, as the case may be since 1st January, 1966.
(ii) ................. ........... ........
(iii) ...... ........... ........... ........
(iv) ...... ........... ........... ........
(b) the persons whose appointment is regularised under the provisions of these order shall count their seniority in the service, grade, cadre or post, to which they are so regularly appointed w,e,f, 1st January, 1970.
It is contended by the appellant that this Notification has an overriding effect and as such the normal Service Rules of 1964 quoted above stand superseded. Since the respondents were "regularised" under this Notification, and not selected through the process of interview, therefore they are entitled to take seniority from 1st January, 1970 and not from any other date. This Notification already came up for consideration before this Tribunal in the case of Muhammad Ayub Rizvi etc. v. Government of the Punjab etc. and this Tribunal upheld the validity of this Notification and decided that the officers whose services were regularised under this Notification were entitled to the benefit of seniority only from 1st January, 1970.
(iii) This Tribunal has also rejected the claim of seniority of other Social Welfare Officers including one of the -respondents in this case (Hadi Raza Khan, respondent No, 7) from the "date of earlier regularisation" in the following three cases :-
(a) Respondent No, 7.-Mr. Hadi Raza Khan has already unsuccessfully agitated this point before this Tribunal as against other Social Welfare Officers whose dates of similar regularization were later than his date, in the case reported as 1975 PLC (C. S. T.)
97. He claimed seniority on the basis of his earlier regularization but this Tribunal rejected the plea by holding as follows :- "The appellant cannot avoid the operation of this rule merely on the ground that the Government has after the approval of his candidature by the Commission back-dated his appointment to the day when she actually joined service as a stopgap measure. Prior to the approval of his candidature by the Commission his services were liable to be terminated at any time. His appointment was regularised only after the Commission had approved of his candidature. Thus he can be said to have been selected for the service only when the Public Service Commission included his name among its nominees. We are, therefore, unable to accept his claim of seniority over Respondents 2 & 3."
(b) The question whether earlier date of regularization was for the purpose of seniority or not, came up for decision before this Tribunal in the case of two other Social Welfare Officers. One is Case No, 39-32 of 1974-Riffat Mahmood v. Director, Social Welfare Department. In para. 6 of that judgment the Tribunal noticed that by regularising Social Welfare Officers from earlier date, the only intention was that "the Government did not want that these Officers should lose the benefit of their service rendered in ad hoc capacity in the calculation of pension". It was further noted by the Tribunal that the Departmental Representative took a stand before this Tribunal that it was never in the contemplation of the Directorate to tamper with the order of merit fixed by the Commission". It was accordingly held that : "In view of this statement the contention of the appellant that he was entitled to a higher position in the senioria list on account of his longer ad hoc service loses all substance."
(c) In case of A. R. Farooqi v. Director, Social Welfare , this Tribunal again confirmed the view taken in Riffai Mahmood's case and refused to give any benefit of seniority on account of earlier date of regularization.
5. On the other hand the respondents through the learned District Attorney have contended that since they were regularised from the dates of their ad hoc appointments it only follows that they have been selected from the dates on which they originally joined as Social Welfare Officers. They have, however, not been able to substantiate their contention by any Rule or law or decided case.
We have also perused the records of the case with the help of the learned District Attorney and the Departmental Representative. It appears that respondents have been given seniority from the date of their original appointment on advice dated 11th January, 1978 of the Social and General Administration Department. When confronted with or aforesaid earlier decisions cited by the learned counsel for the appellant on this particular point, the learned District Attorney, the1 2 Departmental Representative and other respondents could not justify their stand to warrant a departure in this particular case.
6. We have given due thought and weight to the rival contentions of the parties .And are inclined to accept the appellant's plea. We agree with the learned counsel for the appellant that, as held by us in the case of Muhammad Ayub Rizvi etc. Notification dated 28th February, 1970, promulgated by the former Governor of West Pakistan, had provided for a special policy and has the force of Rules.
The opening phrase of the said Notification "Notwithstanding anything to the contrary contained in any Rules" clearly manifests the intention of the rule-making authority that all the normal Service Rules stood superseded by this Notification. Under this Notification all ad hoc appointments made since 1st January, 1966 stood regularised by the force of this Notification. Further orders of regularisation which were issued by departmental authorities were just a formality. As this Notification fixed 1st January, 1970 as the date of fixation of seniority of such civil servants in the Service/cadre, the contesting respondents are not entitled to a date earlier than that date. This date being later than the date of selection as well as date of appointment of the appellant, makes these respondents junior to the appellant.
7. Even if the case of respondents is examined under the Service Rules of 1964, the position is no better. Under rule 8 (1) (a) of these Rules which is the appropriate rule for the determination of seniority of the parties, it is the earlier and later selection, i,e, date of selection which is material for the purpose. Date of selection always means the date when a particular civil servant is selected by the Public Service Commission or other appropriate Selection Board. This point has been clarified by us in the aforesaid reported case of Hadi Raza Khan v. Director, Social Welfare, Punjab and others as follows :- "Thus he can be said to have been selected for the service only when the Public Service Commission included his name among its nominees."
We are further fortified in this view by the decision of the former Punjab Civil Services (Appellate)
Tribunal in 1973 PLC (C. S. T.) 67 at page 73. The relevant portion reads as follows "The material consideration being "selection for appointment to the Services" in an earlier selection there can be no doubt on the peculiar facts of this case that the appellant was selected in an earlier selection while the two respondents were selected in a later selection and thus the appellant is entitled to rank senior to these two respondents. There is no escape from the proposition that 23 were selected in the first selection by the Public Service Commission and the appellant was one of them, while the two respondents were not included in that list. Their names were recommended for appointment to the Service in the letter of Public Service Commission dated 5th October, 1967, when the Appellant had been selected and named in their letter dated 28th December, 1966."
8. There is no dispute about the fact that the appellant was selection 20th February, 1969 whereas Respondents Nos. 5 to 90 were approved by Selection Board on 11th May, 1970. Being an earlier selectee appellant is senior to all these respondents. There is no force in the contention of the respondents that they should be deemed to be selected from the date from which their services have been regularised. Selection cannot be retrospective. We have also seen the record and find that in fact there was no "selection" of respondents in the normal course. They neither appeared for interview before the Selection Board nor was any order of merit assigned, which are inseparable ingredients of selection. None of them was even dropped on merits. On the contrary, their appointments were regularised en bloc on the basis of their records for which the Governor alone was the Competent Authority. From this point of view also their case was more of regularisation than of selection.
9. There is another batch of respondents i,e, Nos. 91 to 99 who were selected by the Selection Board in the same batch in which the appellant was selected on 20th February, 1969. These respondents are all women and have been placed senior to the appellant. It has been claimed on behalf of the Appellant that since he was higher in order of merit to these respondents, therefore, there is no justification for relegating the appellant to a place junior to these nine respondents. We notice, however, that in its letter to the D.G., Social Welfare, written by the Secretary, Selection Board on 10th February, 1969 and conveying the results of the selection conducted by the Selection Board, it was stated that with a view to meet the requirements of the Department, selections were made separately on the basis of the two merit lists pertaining to male and female candidates. The appellant may have secured higher marks than any of the female candidates but since the merit list was separate for the latter we do not see how he can be put senior to them. It has been contended that the Board arbitrarily placed all the female selectees as a group before the male selectees. But nothing has been put forward to convince us as to why they should have been placed as a group after the appellant or other male selectees who obtained higher marks than these ladies, when the merit lists were separate for merit and women candidates. We therefore, do not feel that there is need for us to disturb the seniority of these nine respondents.
10. The upshot of the above discussion is that we accept the appeal in so far as it concerns respondents Nos. 5 to 90 only and declare the appellant senior to them. The three impugned seniority lists i,e, of 20th February, 1974, the tentative Seniority List of 5th June, 1978 and the Final Seniority List of 1st January, 1981, in so far as these lists fix the seniority of the appellant vis-a-vis respondents Nos. 5 to 90 are set aside, without any order as to costs. NLR 1981 T D 391 1975 PLC (C. S. T.) 85 (2)