1. S. A. MAHMOOD (CHAIRMAN).-This is an application by Messrs Lal Bakhsh, Ghulam Nabi, Manzoor Ahmad and Karim Bakhsh, arising out of our order dated the 17th September 1970, in Case No. 172/52 of 1970-Ghulam Hasan and others v. Commissioner, Multan Division and 2 others. The four petitioners were appellants Nos. 1, 3, 15 and l6 before us in that case. The appellants were selected as Patwari candidates and posted as Patwaris from 1957 onwards except the appellants Nos. 19 and 20, who claimed continuous service from 21-1-1961 and 6-12-63 onwards, respectively. It was in 1960 that the appellants before us were selected as Patwari candidates and their names were brought on register of Petwari candidates Maintained Tehsilwise for selection of Patwaris by the Collector under para. 3.6 (a) of the Punjab Land Record Manual, Para 3.6 of the Land Record Manual provides as follows:- "3.6 (a) For each Tehsil a register of candidates is kept in Form P. Igiven in Appendix G. In this register candidates shall be entered in the order in which their applications are accepted, but priority of entry shall give no priority of claim to appointment."
2. In sub papa. (4) of papa. 3.11, priority of entry in the register or of date of passing the Patwari Examination bad to be taken into account, but the Collector could select any qualified candidate keeping in mind, the stipulated considerations. Under para. 3.7 application for entry in this register must be made by candidates in Parson to the Collector or such other officer not below the rank of Assistant Collector of the-1st Grade, as he shall appoint, but no name could be entered in the register except by the Collector's own order, passed after he had seen the candidate Under papa.
3. 3.9, the Collector was required to scrutinize the register at least once a year and he could remove the names of candidates who had failed to pass the Patwari Examination in three years (unless there were special reasons justifying retention), bad obtained permanent posts of any, kind, shad failed to take up officiating appointments offered to them or had reached the age of 30 years without obtaining a permanent appointment as Patwari or Assistant Patwari, or had proved inefficient during the tenure of officiating appointment. Under papa.3.11 of the Land Record qanual, the appointment of Patwaris rested with the Collector. When the office of Patwari fell vacant in any circle, whether temporarily or permanently, it had to be filled by selection from the register of candidates of the Tehsil in which the vacancy occurred, or if necessary by selection from the registers of other adjacent Tehsils, regard being bad to the considerations mentioned in para.287 of the Land Administration Manual. Under papa.3.12 the Patwari of each Tehsil had, as a rule, to be selected from residents of that Tehsil or of its immediate vicinity. Thus these provisions in the Land Record Manual visualised Patwari candidates, their officiating appoint--ment as Patwaris and regular appointment as Patwaris. The priority in making entries of names of Patwari candidates in the register was provided in para.3.6 and priority in selection was provided in sub-para. 4 of para. 3.11 of the Land Record Manual.
4. On the 31st January 1963, the West Pakistan (North Zone) Patwari Subordinate Service Rules, 1963 were notified providing for recruitment, qualifications, probation and seniority of Patwaris appointed under the rules. These rules do not, however, make any provision for or mention Patwari candidates. In selecting the Patwaris under the Rules, the Collector is not Restricted in his choice to recruit candidates and as cadre of Patwaris was created on district level, a combined seniority list of Patwaris was to be prepared district wise in accordance with rule 1.0, seniority to be determined in accordance with the order of merit assigned by the appointing authority, provided that the persons selected for service in an earlier selection Shall rank senior to persons selected in a later selection. It is of particular significance, however, that the 1963-Rules do not specifically repeal the provisions in the Land Record Manual relating to Patwari candidates. These Rules while providing that service means the West Pakistan (North Zone) Patwari Subordinate Service and that the service shall consist of district cadre, members of one cadre not being eligible, save as provided under rule 10, for appointment to posts borne on any other cadre of the service, ensure the creation of West Pakistan North Zone Patwari Subordinate Service consisting of district cadre, but these provisions and this "service" was confined to Patwaris appointed under the rules. There is nothing in the Rules, which relates to Patwari candidates or their selection as candidates or the entry of 'their names in the relevant register. 3'hus provisions in the Land Record Manual relating to selection of Patwari candidates and entry of their names in the relevant register is not affected by the rules.
5. Because the learned Commissioner of Multan Division Thought that the rules had superseded the provisions in the Land Record Manual, he directed by his order dated the 22nd August 1,969 that the combined seniority list of Patwari candidates should be prepared Districtwise, Not only that, he further directed that the seniority lists of Patwari candidates should be prepared on the basis of age or date of birth in the case of persons selected in the same group. The appellant felt aggrieved by this and appealed before us claiming that they were still Patwari candidates, who had not yet been appointed as Patwaris and zoatended that their seniority as candidates had still to be maintained Iehsilwise. They relied on the decision of the Board of Revenue dated the 8th June 1970 directing that the seniority list of Patwari candidate should continue to be Maintained Tehsilwise.
6. The appellants were aggrieved by the fixation of their seniority district, wise for the reasons that thereby they were brought down seniority in seniority were threatened with removal from service appellants have actually been removed We examined their claim and came to the conclusion that they were Patwari candidates who had been appointed in officiating capacity before the rules came into force and that their cases were covered by Notification No. SOR-111-1-40/69, dated 28-2- 70 which directed that they be deemed to be regularly appointed, to the extent notified therein and to the extent of existing vacancies. We further directed that since the appellants were to be deemed to have become members of the service cadre or post by reason of the notification above mentioned they were entitled under clause (6) of the notification to count their seniority in the service with effect from 1-1-1970. We minted out that this clause was silent as to how the seniority if the appellants qua others who had become members of the service, had to be determined. Thus we suggested that the Provincial Government or the Board of Revenue with the approval of the Provincial Government may lay down the necessary principles for determination of their inter se seniority.
7. During the pendency of the appeal and before we announced our order, the petitioners were relieved of their appointment as officiating Patwaris on the round that they were junior to other Patwaris on the basis of lists prepared District, wise the position being that there were 46 Patwaris senior to them, when there were only 40 regular vacancies available, for recruitment of Patwaris. It has been admitted before us that the petitioners are junior to other 46 Patwaris because the list was prepared Distridtwise, all selections made in one calendar year being treated as one selection, and inter se seniority of all members selected during the year in all the selections has to be determined according to age, to avoid anomaly of candidates of one Tehsil becoming permanently senior to the candidates of other Tehsils. The preparation of the seniority list District, wise according to which the petitioners have beet made junior is impugned by the petitioners on the ground that the learned Commissioner had no authority to give the above directions contained in his letter No. RB-5-16/62 dated 20-2-70.
8. The above instructions by the learned Commissioner were issued in the view which he formed that the provisions in the Land Record Manual stood superseded by the 1963-Rules. He formed the view that preparation of seniority list of Patwari candidates District, wise had become necessary in view of the promulgation of the Patwari Service Rules, 1963. This view was based on the consideration that though rule 3.6(a) of the Land Record Manual prescribed that a register of candidates will be maintained Tehsilwise there was no specific provision for maintenance of such a register in the West Pakistan (North Zone) Patwari Subordinate Service Rules, 1963. This was an incorrect view as rule 1l of the said Rules specifically provided that in all not expressly provided for in the rules, the service shall be governed rued by such rules as have been or may thereafter bePrescribed by Government and made applicable to them. Therefore, the by Government and made applicable to them and the Rules. Referring to rule 3 of Service Rules defining of service as consisting of different cadres, tie thought that since the posts of Patwaris were declared to belong to a District cadre, the list of Patwari candidates had to be maintained on District basis and not Tehsilwise. The learned Commissioner erred in forming this view as he forgot to distinguish between Patwaris and Patwari Candidates. He ignored that the 1963-Rules did not make any provision contrary to or inconsistent with the provisions in Chapter III of the Land Record Manual relating to Patxvari candidates. The Rules confined themselves to Patwaris and their selection and appointment: These provisions in Chapter 3 of the Land Record Manual relating to Patwari candidates were saved by rule 11 of the 1963-Rules. These rules being silent on the question of selection of Patwari candidates or the maintenance of register of Patwari candidates Tehsilwise; the Board of Revenue had taken a correct decision In conveying that the list of Patwari candidates should continue to be maintained Teksilwise, as is provided in the Land Record Manual.
9. The learned Commissioner referring to rule 9 of the 1963 --Rules found a difficulty in its application to determination of seniority of Patwaris. He thought that since the Collector, usually selects candidates from each Tehsil in one go the candidates of one Tehsil become senior, to all the candidates of another Tehsil selected in the same year when selected later on in a later selection.
10. In his view this was not fair or justified as it results in confirmation of all candidates of one particular Tehsil prior to candidates of other tehsil.
11. As he thought that hardship was involved in the application of rule 9 he ordered that the procedure for the determination of inter se seniority should be that candidates selected in any one year in different Tehsils on different dates in the same round should be brought on a combined list of the District, and their seniority fixed according to their dates of birth and not in order of priority in Tehsilwise selection. This order was directed to apply to all cases in which seniority was fixed at the time of selection and selections made after coming into force of the Patwari Service Rules, 1963: We have to hesitation in saying that the learned Commissioner completely exceeded his powers in giving these directions, as these were contrary to the express provisions provided for fixation of seniority namely rule 9 of the 1963-Rules which provided as under:-- Seniority.-The seniority inter se of the members of the service in the various grades thereof shell be determined in accordance with the order of merit assigned by the appointing authority; provided that persons selected for the Service in an earlier selection shall rank senior to the persons - selected is a later selection.
12. Explanation l,-If a junior official in a lower grade is promot--ed to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grace,it would not adversely affect the interest of his seniority in the fixation of his seniority id the higher grade.
13. Explanation II-If a junior official in a lower grade is promoted to a higher grade by superseding a senior official and sub--sequently that official is also promoted, the official promoted first shall rank senior to the official promoted subsequently.
14. Explanation III -A junior official appointed to a higher grade shall be deemed to have superseded a senior official only if both the junior and senior officials were considered for a higher grade and the junior official was appointed in preference to the senior official.
15. The learned Commissioner has not only no authority to give a direction to determine seniority contrary to rule 9 but that he has no powers to direct that a list of seniority of Patwar candidates should be prepared in accordance with his direction in doing so he was legislating as to which he had no powers. We would like to point out for his guidance that the provision in the Land Record Manual relating to the selection and maintenance of their list Tehsilwise still continue in force, in spite of the operation of 1963-Rules and that a distinction exists both under the rules and the provision in the Land Record Manual between Patwari candidates and those appointed to the service. In the case of those appointed to the service under the 1963-Rules, their seniority is governed by rule 9 but in the case of Patwari candidates, the order of priority in recording their name in the relevant register is provided in rule 3.6(a) of the Land Record Manual. It is true that the list of selected, Patwaris under the rules has now to be maintained District, wise but that does not mean that the list of Patwari, candidates cannot be prepared Tehsilwise.
16. We, therefore, direct that lists of Patwari candidates, includ--ing the four petitioners should continue to be maintained Tehsilwise and the petitioners--- names should be restored to the original seniority. Their select;on for appointment to the will be subject to the 1963-Rules.