' S. ABDUL JABBAR KHAN (CHAIRMAN).--This appeal has been filed by M/s. Abdul Rashid, Hussain Shah Sufi, Malik Muhammad Hussain, Mirajuddin Zammer, Mizaj Ahmad, Alrnad Khan, Lal Khan, Saeed Ahmad Hashmi, lqbal Hussain Malik, Muhammad Arasab, Malik Ghulam Hussain, Raja Sultan Ahmad, 12 in number, under section 4 of the Punjab Service Tribunals Act of 1974 in which they have impleaded Government of the Punjab through Secretary, Education Department, Director Public Instruction, Punjab, Director of Education, Rawalpindi Division and Deputy Director Schools, Directorate of Education, Rawalpindi Division, Rawalpindi as respondents. They have also impleaded M/s. Salahuddin and 19 others as respondents, whose names have been given in detail on the first page of the appeal.
2. By virtue of this appeal they have prayed that impugned seniority list in so far as it has placed respondents Nos. 5 to 21 above the appellants be set aside and these respondents be declared junior to the appellants. It has been further prayed that respondents Nos. 1 to 4 be directed that the promotions which have been allowed to the respondents on the basis of wrong fixation of his seniority be set aside. It has also been prayed that respondents Nos. 5 to 21 be declared to have entered into Government service w. e. f. 1st July, 1962 only.
3. Brief facts of the case are that the appellants were employed as ministerial staff in the Education Department of Rawalpindi Region whereas the respondents Nos. 5 to 21 were serving in the Ministerial Staff connected with the Primary Education run by Local Council. On 5th June, 1962 the former West Pakistan Government promulgated West Pakistan Primary Education Ordinance, 1962.
The said original Ordinance of 1962 was amended by West Pakistan Ordinance No, XXIII of 1964. By virtue of these Ordinances, the Primary Education was provincialized w. e. f. 1st July, 1962. Another Ordinance known as West Pakistan Primary Education Amendment Ordinance of 1965 provided by virtue of section 5, transfer of the said staff to the Education Department, By coming into operation of the said Ordinance a question arose with regard to the seniority between the employees of the Education Department and the employees transferred to the Government service by Ordinance of 1962. In this connection Joint Secretary of the Education Department issued a letter No, DEA-14/27- 65, dated January, 1968 in which it was said that as provided by section 6 (b) of Ordinance of 1962 all the teachers and the staff of the Local Councils stood employed with the Government w. e. f. The date of the promulgation of the Ordinance i. e. 1st July, 1962 and from the said date the employees of the Local Council became Government Servants for all purposes. Later on the Education Department, Government of West Pakistan by another letter dated 29th June, 1970 clarified the position further by saying that seniority of the Ministerial Staff transferred from Local Bodies to Government Service on 1st July, 1962 shall come in force from the date of their transfer to the Government side, i. e. From 1st July, 1962. This situation was later confirmed by the order of the Governor of the Punjab dated 24th July, 1977 which directed that the merger of all Ministerial Staff of provincialised cadre with the regular cadre of Education Department shall take place w. e. f. Date of promulgation of the said Ordinance, i. e. 1st July, 1962. After the said order of the Governor a list of provincialized Ministerial Staff including respondents Nos. 5 to 21 and regular Government Servants in the Education Department (1. e. The appellants) was prepared as it stood on 1st July, 1962. The respondents Nos. 5 to 21 were shown at Serial Nos. 56 to 79 and their date of joining Government service was declared from 1st July, 1962. In this way the appellants were shown senior to the respondents. No appeal or representation was filed against this order. The matter continued as such when on 15th August, 1979 the Director of Education, Rawalpindi issued another seniority list vide its order dated 15th August, 1979 in which the appellants were shown junior to respondents Nos. 5 to 21. The Director of Education took this decision on the ground that the respondents continuous service in Local Government being longer than the appellants, therefore, they would be deemed senior to the appellants. The Director of. Education, Rawalpindi based this decision on a letter No, SO (SE)/14-27/65, dated 20th May, 1979 issued by S & GAD. This action of the Director of Education Rawalpindi was agitated against by the appellants, through different appeals and when such appeals failed to produce any result the present appeal has been filed before this Tribunal.
4. We have heard the learned counsel for the appellant as well as the learned D A assisted by the representatives of the Department, and have also perused the parawise comments filed by the department along-with the lengthy written statement made available to us by the learned counsel for the respondents.
5. The learned counsel for the appellants has submitted that according to Rule 11.3 of CSR, Volume-I Chapter XI the persons employed in Local Bodies whet transferred to the Government Service would be considered to have joined the Government Service on the date when they were so transferred and their previous service will not be counted towards seniority. He has also relied on section 6 (b) of the Ordinance of 1962. It has been further argued that Governor of the Punjab being Rule-Making Authority had set the controversy at rest by his order dated 24th September, 1977, by declaring that the merger of the Ministerial Staff employed by the Local Bodies with the regular cadre of the Education Department shall take effect from 1st July, 1962, the date on which the Ordinance was issued. The learned counsel made a grievance that the Director of Education has based his order issued by the S & GAD which, firstly, could not override the order of the Governor and secondly, the letter had clearly observed that normal seniority in each grade when two Government Organizations were merged into one would be counted from the date of continuous officiating for the purpose of combined seniority list. In this way it was submitted that the impact of the letter only related to organizations which had similar character and did not pertain to such organizations which were different in character. The learned counsel has relied in this matter on the decision of this Tribunal in Appeal No, 84/80 of 1972, as well as on 1981 PLC (C S) 20 ; 1973 PLC (C. S. 1'470; 1975 PLC (C. S. T.) 1 and 1977 SCMR 365. He has also further relied on Appeal No, 233/658 of 1974 decided by this Tribunal.
6. On the other hand the learned counsel for the respondents has relied upon PLD 1972 Lab. 1 and has submitted that in the above-mentioned judgment it was decided that the service of the persons transferred from the Local Government Department would positively count towards their pension benefit, therefore according to the learned counsel the impact of said judgment would be applicable to the facts of the present case. It was further submitted that the Government was competent to issue/revise/amend the instructions regarding the terms and conditions of the employee, etc. At any appropriate time, therefore, the order of the Director of Education could not be challenged by the appellants. It was further argued that the seniority list of year 1974 was not a final list and the matter remained under consideration with regard to the claim of seniortiy between the parties till the ultimate seniority of 1979 was issued on the advice of the S&GAD by the Administration Department. It was finally submitted that Respondents Nos. 6 and 9 to 13 have been assigned seniority correctly according to the Government decision and their promotions have legally been ordered. A reference was also made to a Civil Suit filed by appellant in the Court of the Senior Civil Judge, Gujrat in which initially a Stay Order was granted in his favour but later on it was vacated on 23rd July.
1979. The learned counsel during the course of his arguments laid stress that the transfer of the respondents from Local Service to the Government Service was not made either on their request or their consent when such transfer was made, therefore, it would, be .a matter of great hardship if their previous services in the Local Government was not counted towards their seniority.
7. We have given our anxious thoughts to the contention so raised by the parties and have perused the law so cited by both the sides before us including Appeal No, 84/80 of 1972 decided by a Full Bench of the predecessor Tribunal headed by late Justice S. Mahmood, as its Chairman. The issue in this case before us is as under :- "Whether by merger of two different organizations the previous service of those so merged would count towards their seniority vis-a-vis the persons with whom such merger have been affected or they will be treated as Government servants from the date of their transfer".
' This issue came before the predecessor Service Tribunal in case of Abdul Hama Khan v. Senretary, Food and Co-operation, Lahore and others in year 1972. The learned Tribunal formulated a question as under :- "The main question which falls for determination in this case is whether confirmation in the grade of Senior Clerk in the Punjab Cooperative Union is to be recognized for the office of Registrar Cooperative Societies on transfer so that the appellant may rank senior to all the unconfirmed Senior Clerks."
8. It was observed that the question of fixation of seniority to the Ministerial Staff of the Co- operative Union on his transfer from Government side was taken up in 1968 and Government conveyed its decision to the Registrar, Co-operative Societies on 8th June, 1967 forwarding the advice of the S & GAD for information and necessary action. The S & GAD had agreed that the service rendered by the staff in the Punjab Co-operative Union could not be counted towards their seniority on their transfer to Government Service. The rule 11.3 of the CSR, Volume I, Chapter XI was relied upon which said that when the persons employed in Local Bodies were transferred to the Government Service they would be considered to have joined the Government Service on the date when they were so transferred and their previous services would not count towards seniority. It was concluded by the said judgment "when the Government provided a rule of seniority that the service rendered by the staff in the Punjab Co-operative Union cannot be counted towards seniority on their transfer to Government it clearly implied that the intention was not to give the appellant to the benefit of the service as Senior Clerk or of confirmation, therefore, irresistible inference of the principles laid down by the Government for the determination of the seniority of the staff transferred from Co-operative Union to Government is that past service in various grades or confirmed status in a grade is not to be counted or taken into account for the purpose of seniority and the appellant must be treated as joining the Government Department on 1st September, 1961 as a new entrant."
9. We have also looked into the letter to relied upon by the Director of Education while issuing the impugned seniority list and have no hesitation to hold that this letter only talks of integrated seniority list where two Government Organizations are merged and in that case the continuous service of the merged civil service would count towards their seniority when an integrated list is so prepared. In the present case what we find is the merger took place of Ministerial Staff of Local Bodies (non-Governmental organizations) with the Staff of the Government, therefore the Director of Education was not jutified to base its decision on the said letter particularly when the Governor of the Punjab had set the controversy at rest by his order dated 24th September, 1977 placed at Annexure of the record. What we further find is that a seniority list was prepared in 1974 appended with the appeal in which the appellants were positively shown senior to the respondents which is, I placed as Annexure 'C' but no exception was taken to this list either through representation or through appeal by the respondents. The case relied upon by the appellant's counsel clearly laid down a rule which does not bestow the benefit of earlier service in matter of seniority to those organizations which are merged with a different service. We have also carefully examined PLD 1972 Lah. 1 and find that in that judgment the issue was interpretation of West Pakistan Pension Rules, 1963 regarding the displaced persons who had been serving in the Local Bodies in East Punjab and have migrated to Punjab and were of the Local Bodies in West Punjab when Primary Education Ordinance of 196 2 was promulgated and they were transferred to the Government Cadre. The letter referred to in the said judgment are two letters one dated 6th January, 1971 from the Punjab Government in the Local- Government Department and the other dated 13th April, 1969 from the Joint Secretary, Education Department. In both these letters the matter dealt is with regard to the pension benefits of the earlier service of the persons so transferred to the new department. In the said judgment it was held that as the contention of the Government had all along been to count the entire continuous service of those employees for the purpose of pension, therefore, the past service of such employees could not be ignored towards pension benefit. The question of seniority inter se never came into consideration in the said judgment and, therefore, we are of the considered opinion that this -judgment so cited by the learned counsel for the respondents in no way applies to the facts of the present case.
10. The stand of the department as well as of the respondents that Government is fully competent to amend the rules with regard to the service conditions of its employees is hardly sustainable in view of the fact that a letter of S&GAD cannot be allowed to overrule the authority of the Governor which is a rule-making authority. As mentioned in the earlier part of our judgment the letter so relied upon by the Director of Education is not a final advice as well as does not enunciate the principles different than the one so declared by the worthy Governor in his order dated 24th September, 1977 Annexure 'B' on the record. We also fail to find any documents on the record which can show that the seniority list of 1974 remained under consideration on the strength of the representations or appeals filed by the persons so affected. Mere making any assertion without the existence of supporting documents cannot be allowed to-be taken into consideration in favour of the respondents.
11. In view of the above analysis of the law cited by both the parties and of the factual position of the case we have no, hesitation to set aside the impugned seniority list and direct that the appellants be declared senior to the respondents against whom they have agitated, their claim of seniority and hold positively that the respondents would be considered to have joined the Education Department since the date of their merger with the same, i. e. 1st July, 1962 and they would be entitled to seniority in the corresponding grade/cadre on the basis of the said date.
12. The result is we accept the appeal and set aside the impugned seniority list with the directions that the appellants may be allocate their places of seniority in accordance with the principles so enunciate' in our judgment. However, there will be no order as to costs.