S. A. MAHMOOD (CHAIRMAN).-In this appeal under section 4 of the West Pakistan Civil Services (Appellate Tribunals) . Ordinance, 1969, Dr. Muhammad Elias Dubash appellant prays that he be declared senior to Messrs F. H. Durrani, Joint Director Industries, A. S. Khan, Chief Inspector of Boilers, Dr. M. Anwar-ul-Haque, Joint Director of Industries (since retired), Mansoor Ahmed, Joint Director of Industries and S. A. Ahmad, officer on Special Duty (Industrial Estates), respondents 2 to 6. He feels aggrieved by the seniority list circulated by the Directorate of Industries and Commerce vide memo. dated 9-5-1968, in which he has been assigned 9th position, whereas he claims that he should have ranked at number 4, and above respondents 2 to 6.
The appellant claims to have been appointed to a permanent vacancy of Deputy Director Industries (Research) through the Public Service Commission w.e.f. 2nd November 1957, by Notification dated the 28th November 1958. This notification notified the appellant appointment against the permanent post of Deputy Director of Industries (Research) w.e.f. 2nd November 1957, on probation for a period of two years, with service being terminable on one month's notice on either side, but the actual letter of appointment by which he was appointed, issued on the 30th November 1957. That letter is Annexure `A' on page 58 of the file. The appellant was appointed temporarily to the post of Deputy Director of Industries (Research) Class I Senior for a period of six months until a selected of the West Pakistan Public Service Commission was available, whichever was earlier. On being so appointed, he signed the charge report w.e.f. 2 November 1957, but in the same report Mr. Anwarul Haq did not hand over until the 10th December 1957. It follows as a necessary conclusion that as his appointment could not precede the issue of letter ofnd appointment, he could not have been, appointed to the service before 30th November 1957, and that the post of Deputy Director of Industries (Research) which was then held by Dr. Anwarul Haq respondent, was not vacated by him until 10th December 1957.To that extent the mention of appointment of the appellant w.e.f. 2nd November 1958 is incorrect. He was not appointed before 30th November 1957. He was promoted as Joint Director of Industries (Research) on 31st January 1970. The seniority in dispute is as Deputy Director and Joint Director of Industries.
The order of seniority of respondents 2 to 6 in the seniority list is as follows:-
4. Mr. S. A. Ahmed,
5. Mr. Mansoor Ahmed,
6. Dr. Anwarul Haq,
7. Mr. A. S. Khan,
8. Mr. F. H. Durrani, Of these Dr. Muhammad Anwarul Haq has retired by now and Mr. F. H. Durrani, though he appeared before us, has been assigned to the Sind Province and is no longer amenable to the jurisdiction of this Tribunal.
Mr. S. A. Ahmed joined in Senior Class I Service on 9-3-1951 as Additional Superintendent, Government Weaving Factory, Shahdara in the scale of Rs. 600-40-1,000 against permanent post.
He was confirmed as Weaving Superintendent w.e.f. 8 1951. He was given additional charge of Textile Adviser on 26tb September 1951. On 16th March 1953, his pay-scale was revised to Rs. 600- 40-1,150. On his representation, his pay---scale was further revised on 9-3-1955 to Rs. 600-40- 1,000-1,200 and he was given a start of Rs. 880 with two increments. In the integrated seniority list he was shown at No. 5 on 2-1-1956. He was sent on deputation as General Manager, Burewala Textile Mill, Burewala on 2-1-1956 with a deputation allowance of 40% and remained there up -to 22nd June 1957. He came back as General Manager, Shahdara Mill in 1957. On 10-6-1958 the posts of Weaving Superintendent, Shahdara Government Weaving Factory and Printing and Dying Institute, Shahdara were merged together and the post of General Manager created. Mr. S. A.
Ahmad was appointed as General Manager with a special pay of Rs. 150 per month. In May 1960, he was sent on deputation to Fuji Textile Mills as Managing Director with a deputation allow--ance of 25 per cent. He was promoted as Joint Director (Industrial Estates) on 1-8-1964, and he took over on 10-8-1964. His promotion as Joint Director was delayed pending a change in the rules making General Manager eligible for promotion as Joint Director. The rules were so amended on 6th November 1964. Because the rules were amended subsequent to the appointment of Mr. S. A.
Ahmad as Joint Director, the appellant contends that his promotion as Joint Director is invalid and he ranks senior to him. There is no force in this contention. It is obvious that Mr. S. A. Ahmad joined in Class I Senior in March 1951, whereas the appellant did not come into service before November 1957. Mr. Ahmed was, therefore, senior to him by six years and the appellant has not superseded him. Therefore, we hold that lie has been correctly shown senior to the appellant.
The next man in seniority is Mr. Mansoor Ahmed. He was appointed as Deputy Director in the Central Government on 7-5-1958 and was transferred to the Provincial Government on 9-10-1959, consequent upon the transfer of subject of Purchase from the Central Government to the Provincial Government The terms of transfer are to be found in S. & G.A.D. letter dated the 5th April 1963, Annexure F. The principle followed by the Government of West Pakistan for determining seniority is the date of continuous officiation in the same grade or in comparable grades. Therefore, Mr. Mansoor Ahmed is entitled to count his service from 7-5-1955, a date earlier than the appointment of the appellant. Mr. Mansoor Ahmad was promoted as Joint Director on 28th December 1965, long before the appellant was so promoted. Seniority is claimed over Mansoor Ahmed on the ground that he joined the West Pakistan Industries Directorate on 2-11-1959 vide Notification, dated the 4th December 1959, as officiating, but he cannot be treated as a new entrant into service since histh services were transferred from the Central Government to the Provincial Government with a right to count his continuous appointment in a grade or a comparable grade for the purposes of seniority.
It was also argued against him that as he is shown on deputation by the Central Government, he should not have to be treated as an employee of the Provincial Government. It is, therefore, (mended that the protection available in letter dated 5-4-1963 is not available to him, but whether this letter be applicable or not, we are satisfied that the Provincial Government agreed to take certain officers on the transfer of the subject of Purchase, undertaking to give them seniority on the basis of continuous appointment and such transferred officers were entitled to count their seniority on that basis. Mr. Mansoor Ahmed is not governed by the provisions in para.17 of the Integration Circular letter as teas contended on behalf of appellant, but by the conditions under which he was taken over by the provincial Government, he cannot, therefore, rank junior to the appellant.
The next in order of seniority is Dr. Muhammad Anwarul Haq. He joined as Research Assistant on 15- 7-1938 and was approved by the Public Service Commission as Superintendent Industries, which became a Class 11 post, in which he was confirmed in 1944. In 1945 he went abroad and returned with a Doctorate and two masters Degrees. In (?) he was appointed Coal Research Chemist in Class I Junior in the pay-scale ox Rs. 300-1,000. In 1950 he became Laboratory Manager at a salary of Rs. 700. His services were lent to the Central Government. On 8-3-1951, he became Textile Officer in the status of Deputy Director on 31st December 1951. On 1-1-1952, he was transferred to P.
1. D. C. and given a pay scale of a Director namely Rs. 1,250-50-1,600. On integration, he was given one of the four permanent posts of Deputy Directors and it was decided by the Administrative Council that the approval of Public Service Commission to his appointment as Deputy Director was not needed. He continued as Deputy Director and is May 1966, he was promoted as Joint Director in the Mineral Development Department @ Rs. 1,400 per month. Thushis initial appointment as Deputy Director dates back to 25th June 1955, and he was appointed against a permanent post of which we have satisfied ourselves, w.e.f. 14th October 1955. He thus became Deputy Director much earlier than the appellant, and is entitled to rank senior to him, not only as Deputy Director, but also as Joint Director.
The next man in order of seniority is Mr. A. S. Khan. Chief Inspector of Boilers. He was appointed to Class I Junior Service as Deputy Chief Inspector of Boilers on 21-1-1961. This post was upgraded as Class I senior scale from the financial year 1961-62 vide order dated 3rd May 1961. He was promoted as Chief Inspector of Boilers on 8-7-1968. The pay-scale of the post was raised to Rs. 1,400 per month by the same notification with effect from 1-7-1961. This scale is equivalent to that of a Joint Director. Since the posts of Deputy Chief and Chief Inspector of Boilers require technical qualifications as provided in the Boilers Act, neither the appellant nor any of the other respondents could have been promoted to the post for lack or technical qualifications.
The appellant has sought relief that he should be declared senior to Mr. A. S. Khan in the grade of Joint Director, but the post of Chief Inspector of Boilers has its own identity irrespective of the fact that its pay-scale is equivalent to that of a Joint Director. A specific provision in the Service Rules is necessary for a post to be in an equivalent grade for purpose o, promotion etc. But rule 5 (1) (2) relating to the appointment of Additional Director and Joint Director provides:-- "5. Method of recruitment.--(1) Appointments to the posts of Additional Directors shall be made-
(i) by selection on merit from among members of the service holding posts of Joint Director, or.
(ii) from among members of the C. S. P. or P. C. S.
(2) Appointments to the posts of Joint Directors shall h made by selection on merit from among members of the Service holding posts of Deputy Directors and Genera Manager. Government Weaving and Finishing Centre, seniority being considered only in the case of officers of practically of the same standard of merit."
Thus the post of Additional director can be filled only from among members service holding the post of Joint Director. The post of Chief inspector of Boilers is a distinct post and has not been included among the Joint Directors and the question of the holder of this post being eligible for the post of Additional Director, according to the existing provision of the Rules, does not arise. Similarly, the post of Deputy Chief Inspector of Boilers is not included among the holders of post, who are eligible for promotion as Joint Director under sub-rule (2). This is because the Deputy Chief Inspector of Boilers is eligible for promotion as Chief Inspector of Boilers which post has pay-scale equivalent to that of Joint Director. Thus there shall be to question of merging the seniority of Deputy Chief Inspector Boilers with the Deputy Directors of Industries and similarly the post of Chief Inspector of Boilers shall not be merged with that of the Joint Director. Under the circumstances, the question of determining the seniority of Mr. A. S. Khan qua the appellant in the rank of Joint Director does not arise. His inclusion in the seniority list of Joint Directors is inconsistent with the provision of rules and is, therefore, unwarranted. The name of A. S. Khan be therefore, deleted from the Joint seniority list and he be shown else where in theme of promotion Deputy Chief inspector of Boilers.
The next officer in seniority F. H. Durrani. Mr. F. H. Durrani was originally a Central Government employee. He became P. A. to Chief Minister, Khairpur State in the scale of Rs. 500--40 90/50- -1,000, which is a scale comparable to Class l Senior. He was taken after integration as officiating Deputy Director w.e.f. 12th August 1961, and was to be integrated in accordance with the Integration Letter. The circumstances in which Mr. Durrani was appointed as Deputy of industries stated in Government's letter dated 8th June 1961. (Annexure H). Mr. Durrani is mentioned in this letter as a permanent employee of the Central Government, joined Khairpur State service on deputation in 1948, and as Secretary to Chief Minister for nearly four years appointed as Secretary, Khairpur Textile Mills, a State owned concerned in 1952, where he continued to serve until the Mill was transferred to the Post-war Services Reconstruction Funds in November 1960 when his services were, terminated. He received overseas training at State expense in industrial Manage--ment for nearly 2-- years. The State passed a Resolution on 13-10-1955 re-appointing him to the vacant post of Secretary to the Chief Minister and the Government of West Pakistan were under an obligation to absorb him in the Provincial set-up like so many other officers of integrating units, and had Khairpur State not been merged into the One Unit and the Khairpur Mill had not changed hands, Mr. Durrani would have continued on deputation to the Mill as a servant of the Khairpur State. It was therefore, decided to treat Mr. Durtani as a surplus whose appoint--ment in the Directorate of Industries to be regarded as of an officer appointed by transfer in the scheme of absorption of the staff of' integrating units. Therefore, Mr. Durrani is entitled to count his service in the State from December 1948, in a comparable grade in accordance with the integration letter. He is, thus, senior to the appellant.
As stated already, the seniority of Mr. Mansoor Ahmad has to be counted from the date of his appointment in a particular grade on the basis of the condition of his transfer accepted by the Provincial Government. In the case of Mr. F. H. Durrani, the rule of seniority is provided by the Integration letter. In the case of the appellant and the remaining respondents; except respondent 'No. 3, the rule of seniority is rule 9 of West Pakistan industries Service Class I and Class II Rule 1962, which provide as under :-
9. Seniority.-(1) The seniority inter se of. Themembers of' the Service in the various grades thereof shall be determined:-
(a) in the case of Members appointed by initial recruitment inaccordance with the order, of merit assigned by the Commission; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in-a later selection ; and
(b) in the case of members appointed otherwise, with reference to the dates of their continuous appointment therein provided that if the date of continuous appointment in the case of two or more members of the Service is the same, the older officer if not junior to the younger officer or officers it the next below grade, shall rank senior to the younger or officers.
Explanation I.-If a junior officer in a lower grade is promoted to a higher grade temporarily in the public interest. Even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the grade.
Explanation II.--If a junior officer in lower grade is promoted to a higher grade by superseding a senior officer and subse--quently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.
(2) The seniority in the various grades of the Service of the members appointed by initial, recruitment vis-a-vis these appointed otherwise shall be determined :-
(a) in case both the officers appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed againsttemporary vacancies with reference to the date of appointment to such vacancy in the case of the officer appointed by initial recruitment and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise; provided that if the two dates are the same, the officer appointedotherwise shall rank senior to the officers appointed bye initial recruitment .
(b) in case the officer appointed by initial recruitment hasbeen appointed against substantive vacancy the officerappointed otherwise has been appointed against temporaryvacancy, the officer appointed by initial recruitment shall ranksenior to the officer appointed otherwise ; and (c)in case the officer appointed otherwise appointed against asubstantive vacancy and the officer appointed .by initialrecruitment is appointed against a temporary vacancy, the officerappointed otherwise shall rank senior to the officer appointed by initial recruitment.
Under this rule, the appellant cannot lie held senior to the remaining respondents.
The argument was raised on behalf of the respondents that the post of Joint Director was a selection pos. for which 12 years' service was necessary for promotion. We have satisfied ourselves with reference to the original file of S. & G. A. D. that this is not so. The post of Joint Director has not been made a selection post. In the Annexure to letter of Government of West Pakistan S. & G. A. D. dated the 18th June 1963, the posts declared to been selection posts in the Annexure to the letter is the post of Joint Secretary and Adviser and not the Joint Director of Industries. Therefore, there was no bar to the promotion of the appellant to the post of Joint Director on the ground that it was a selection post, requiring specific years of service. If therefore, the promotion of appellant as Joint Director has been held up in the view that it was a selection post, that was not a good ground for withholding his promotion.
We have held above that the respondents 2, 4, 5 and 6 are senior to the appellant. Therefore, by their promotion as Join Directors, here is no super session of the appellant. If they were senior to the appellant as Deputy Director, which they were, they are senior to the appellant as Joint Director, not only because they became Joint Director earlier, but also because the appellant has not superseded them in any way.
For reasons stated above, we cannot hold the appellant senior to respondents 2, 4, 5 and 6.
Respondent No. 3 not being in line of promotion to the rank of Joint Director, at present and as he holds a special post of Chief Inspector of Boilers, to which the appellant is not eligible for promotion, his seniority qua cite appellant need not be determined. Name of respondent No. 3 should be struck off from the seniority list of Joint Directors.
We order as above, but there will be no order as to costs.