' S. ABDUL JABBAR KHAN, (CHAIRMAN).-Messrs M. M. Yunis, Saeed Ahmad Zafar, Rao Riazur Rahman, Saeed Ahmad Beg, Nazar Muhammad and M. Abdul Hamid Rehmani have filed separate appeals in which they have impugned seniority lists published in the extraordinary gazette dated 15th December, 1971 as it stood on 1st December, 1971 pertaining to Assistant Executive Engineers, Executive Engineers/Superintending Engineers/Chief Engineers of the Irrigation Department Punjab vide notification No, Esti. I/SY-1/70 (Vol 11) and seniority list published in extraordinary gazette No, L 7532, dated 27th November, 1972 as stood on 14th October, 1972 vide notification No, Estt. 1-SY-1/72, dated 14th October, 1972 under section 10 of the Civil Servants (Appellate Tribunal) Ordinance, 1970.
These appeals did not materialise till the promulgation of the Punjab Service Tribunals Act, 1974. All these appeals stood transferred before this Tribunal under section 10 of the said Service Tribunals Act of 1974. Two other appeals of Messrs Muhammad Afzal and Mazhar Saeed Qureshi were filed under section 4 of the Punjab Service Tribunals Act, 1974 in 1978, challenging the seniority list dated 14th October, 1972 so challenged by the other appellants as well as of the Superintending Engineers dated 1st December 1971. These appeals were heard twice. Judgments were reserved but somehow or other no judgment was announced by Tribunal and ultimately came before this Tribunal once again after it was re-constituted. By virtue of these appeals all the appellants have prayed that both the impugned seniority lists be set aside and their seniority be fixed at proper places in view of the grounds taken by them in their separate memoranda of appeals. Since common questions of law were involved, therefore, all these appeals were heard together and are being disposed of by a single judgment.
2. M. M. Yunis, appellant, has impleaded 4.6 respondents including the Punjab Province through the Secretary, Irrigation and Power Department, as Respondent No,
1. Briefly the facts of this case are as under :-
3. He joined service as Temporary Engineer on 3rd January; 1946 and was taken in Class II on 23rd August, 1950 and confirmed as such from the same date. He was promoted as officiating Executive Engineer on 21st June, 1951. He continued in this capacity till January, 1954. It so happened that he suffered some mental ailment and chose to proceed on 3 months leave. When he came back in April, 1954 the then Government of the Punjab posted him as S. D. 0 Akbana Sub-Division, L. C. C.
West Circle. However, he was re-appointed as officiating Executive Engineer on 6th October, 1955 and was confirmed as such on 1st January, 1966. Due to the above-mentioned circumstances he was assigned seniority at Serial No, 49 in the seniority list published by the Government of Punjab on 14th October, 1972. Earlier he was shown at No,
42. He made representation in 1961 claiming his seniority on the basis of his appointment as Executive Engineer w. e. f. 21st June, 1951, This representation was considered and rejected by the Department on the ground that the appellant had accepted, without protest, his appointment as S. D.
0. w. e. f. 1954 for over 13 years and thus his claim suffered from laches and was also barred by time. This Tribunal on his appeal passed a judgment dated 24th September, 1980 by which the appeal was rejected, inter alia on the points that it was time-barred and that this Tribunal had no jurisdiction to adjudicate a controversy on facts relating to the period prior to the year 1969.
However, after the dismissal of this appeal he filed a Miscellaneous application on 2nd July, 1980 which was placed before us for disposal. In this application it was prayed that issues regarding seniority in Class 1 and in Class II against 28 respondents who, according to him, were basically junior to him, may be kept alive. It was also submitted that he was promoted X. E. N. Much earlier than the Class I direct entrants therefore he should be declared senior over them. This seniority in Class I was claimed against respondent's No, 7 to 13, 24 to 29, 40 to 42 and 45. Similarly he assailed the seniority of the promotees from Class II to Class Me, they being Respondents No, 4, 5, 6, 14 to 23 and 36 to 39. His application was heard at length. This prayer was hotly contested by the Respondents' counsel, Ch. Mushtaq Masood, both as ill-founded as well as barred by the principle of res judicata and this Tribunal held that all these issues will be decided at the final disposal of his case alongwith other connected appeals.
4. Nazar Muhammad .-In the case of Nazar Muhammad we find that he has impleaded 48 persons as Respondents, including the Government of Punjab through the Secretary, Irrigation and Power Department, as Respondent No,
1. He has claimed relief against Respondents No, 14 to 48 and has requested that Respondents Nos. 2 to 13 may be struck of in his case as be conceded these Respondents as senior to him. In view of his request this Tribunal vide its order dated 24th January, 1977 struck of these respondents as unnecessary. Nazar Muhammad was appointed Assistant Engineer on 27th September, 1949 under the Bahawalpur State Service of Engineers Rules, 1934, and was confirmed w. e. 21th April, 1950. He was later on appointed as Assistant Engineer in Class I w. e. f.
1st March, 1955. He was promoted officiating executive Engineer by the order of Amir of Bahawalpur dated 13th October, 1955. However, he took over the charge of the post of Under Secretary, Which was equal to the post of Executive Engineer, on 19th October, 1955. He continued to work as such till 14th November, 1955. One Akhtar Qureshi was posted as Technical Officer at Bahawalpur by order of the Chief Engineer. West Pakistan Irrigation Department, dated 5th November, 1955 and thus the appellant stood relieved from the said post. He made representations against the order of the Chief Engineer. In one of the six representations from 15th August, 1956 to 21st August, 1956, the representation dated 15th August. 1956 made to the Secretary, West Pakistan Irrigation and Development Department, the Chief Engineer rejected the said representations on 20th September, 1956 on the ground that the post of Under Secretary did not exist on 19th October, 1955 when the appellant had taken over as such. He made other representation on 21st May, 1957 against the said rejection of the representation, but no decision was taken in that regard. Ultimately on 8th May, 1958, he was posted as Executive Engineer, Islam Division, Bilibar Circle, and took over as such on 14th May, 1958. In view of the above his seniority was fixed as Executive Engineer from 14th May, 1951 against which the appellant claimed that by the order of then Bahawalpur Government he should be considered as officiating Executive Engineer from 13th October, 1955. To establish this claim he filed on 24th May, 1958, Writ Petition No, 161 of 1958 impleading the Government of West Pakistan through Secretary, Irrigation and Power Department, and Saeed Beg etc. Belonging to former Bahawalpur State. This Writ Petition was finally dismissed on 13th November, 1961. The appellant applied for a certificate of leave to appeal to the High Court, which the said Court declined to grant by its order dated 12th November, 1962. Not satisfied with this judgment of the High Court he filed a civil petition for special leave to appeal which was also dismissed by the Supreme Court by order dated 27th June, 1963 in which Their Lordships declined to grant his request considering the petition to be time-barred. Before closing the facts of his case, it will be useful to mention that the appellant has referred to the recommendations of Ahmed Hasan, Deputy Chief Engineer, Bahawalpur and Muhammad Musa, Chief Engineer, recorded in the note dated 30th September, 1957, wherein we find that the said two superiors of the appellant recommended that he should be assigned seniority below Rao Riazur Rahman. However, the Government did not approve the recommendations so made. We also find that the appellant kept on making representations spread over a period of 15th March, 1966 up till 1972, addressed to the Secretary and Chief Secretary but without any success. The appellant has claimed seniority over respondents Nos. 22 to 28 who were directly recruited as Assistant Engineers from Punjab and appointed during 1952 and against another group from Respondents Nos. 38 to 43 who were similarly appointed as Assistant Engineers on 1st February, 1957. Respondents Nos. 14, 15, 16, 19 to 21; 29 to 37, 47 and 48, whose seniority he has also assailed also belong to Punjab Service of Engineers of pre-integration era.
5. Rao Riazur Rahman : -In case of Rao Riazur Rahman, we find that like Nazar Muhammad he was also appointed under the Bahawalpur State Engineers Service Rules. He has impleaded forty-seven respondents including the Secretary, West Pakistan, Irrigation and Power Department, as Respondent No,
1. Thy appellant joined Bahawalpur State Service of Engineers on 18th August, 1949, as Assistant Engineer and was confirmed as such in Clases II on 1th February, 1950. He also officiated as Executive Engineer from 4th July, 1954 to 31st November, 1954. As a result of selection the appellant was substantively appointed as Assistant Executive Engineer, Class I, w. e. f. 1st March, 1955 under the said Bahawalpur State Rules. After the. Expiry of the said period of about 4 months he started working as Assistant Executive Engineer, Class 1, w. e. f. 1st March, 1955 again under the Bahawalpur State Service Rules. The appellant was promoted as officiating Executive Engineer by the order of Amir of Bahawalpur dated 13th October, 1955 but he took over the charge two days later on 15th October, 1955. The appellant has claimed seniority over all the respondents from No, 2 to 47.
6. Mirza Saeed Ahmad Baig.-He is also from the Bahawalpur Group like Nazar Muhammad and Rao Riazur Rahman. He has impleaded forty-six respondents including the Secretary, Irrigation Punjab.
However, he took back his claim against respondents Nos. 2 to 13 and contended himself by claim of seniority against Group No, I comprise Respondents Nos. 14 to 17 out of which Respondent No, 16 had retired. He has impleaded Mian Muhammad Safdar and Raja Saadat 'Nand Khan as proforma Respondents. In the second group comprised Respondents Nos. 20 to 23 and 31 to 41, the 3rd group consisting of Respondents Nos. 24 to 30 and 42 to 46, the appellant has claimed seniority over them. The appellant joined Bahawalpur State Engineering Service on 14th November, 1946 and was confirmed as Assistant Engineer in Class II on 1st April, 1947. He had also the privilege of officiating as Executive Engineer from 1st May, 1954 to 7th December. 1954 for about seven months. He was promoted as Executive Engineer vide defunct-Bahawalpur Government order dated 13th October, 1955 w,e,f, 13th October, 1955. However he took over the charge on 16th October, 1955,
7. Saeed Ahmad Zafar.-He joined the Punjab Irrigation Department as a Temporary Engineer on 19th December, 1947. He was appointed by direct recruitment in Class II on 6th July, 1949. He was confirmed from the same date vide order dated 17th August, 1951 He was appointed as officiating Executive Engineer on 29th October, 1954. He was inducted into Class I Junior as Assistant Executive Engineer on 14th October, 1955 which date was changed to 13th December, 1958, which the appellant has disputed. He was confirmed as Executive Engineer on 1st January, 1966 vide notification dated 15th October, 1971 His date of joining Class 1 Senior (S. Is 22nd January, 1971, in officiating capacity. He has impleaded Respondents Nos. 10 to 24, 26 and 28 to 45 as per list published in The Pakistan Times, dated 24th February, 1981. His group of Respondents includes officers of ex-Bahawalpur State, Officers of Direct Class I Punjab, 1952 batch, Officers of Direct Class 1954 batch and officers of Punjab group promoted from Class 1I to Class I. He was granted proforma promotion as Superintending Engineer w.e f 2nd June, 1970.
8. Mian Muhammad Afzal.-Mian Muhammad Afzal was appointed as Assistant Executive Engineer Class 1 Junior w,e,f, 1st February, 1954 in the former Punjab Province, by direct recruitment, on regular basis in consultation with the Punjab Public Service Commission. He was subsequently asked to officiate as Executive Engineer w,e,f, 13th December, 1959 and was confirmed as such on 1st February, 1964. He was promoted as officiating Superintending Engineer on 2nd April, 1968 and continued as such. He has impleaded 24 respondents including Secretary to Government of Punjab, Irrigation & Power Department, as Respondent No, I. He has also assailed the seniority lists of both Executive Engineers as well as Superintending Engineers.
9. Al azhar Saeed Qureshi.--Mazhar Saeed Qureshi was appointed as Assistant Executive Engineer in Class 1 Junior w,e,f,. 1st February, 1954 in consultation with the Public Service Commission. The appellant was subsequently promoted as officiating Executive Engineer w.e.f 13th December, 1959 and was confirmed as such on 1st February, 1964 and promoted as Superintending Engineer on 2nd April, 1968 and continued as such. He has assailed the impugned seniority lists of 1972 of both Executive Engineers and Superintending Engineers-
10. In order to appreciate the comparative claims of the parties inter well as in groups i, e.
8ahawalpur Group v. Punjab Group, it will be useful to give the bio-data of each of the contesting respondents. This case has peculiar features wherein we find appellants figuring as respondents also in their inter se appeals. We have already given biodata of the appellants who are respondents as well. Therefore, we will now sire bio-data of those persons who figure as respondents and are common in some of the above-mentioned appeals before us and also have contested claims of the appellants against them Ramiz Ahmad Malik .-He joined as Temporary Engineer on 29th December, 1945 in the Punjab Irrigation service. He was appointed officiating Executive Engineer on 5th July. 1951 and was inducted into Class I on 14th October, 1955. He became officiating Superintending Engineer w,e,f, 3rd January, 1970 and is now working as officiating Chief Engineer. This respondent has resisted the claim of the above appellants against him and has contended that seniority lists which are impugned have been correctly formulated.
12. M. A. Latif.-He joined as Temporary Engineer in Punjab Irrigation Service on 16th January, 1947. He entered in Class II on 23rd August, 1960 and started officiating as Executive Engineer on 3rd August, 1952 and joined Class I on 14th October, 1955 wherein he was confirmed on 1st June, 1962. He was appointed officiating Superintending Engineer on 1st March, 1970 and has been confirmed as such on 1st June, 1972. He also resisted the claim of the appellants and has contended that the impugned seniority list is in accordance with the law keeping in view Rules and Regulations applicable in the case of the appellants as well as respondents.
13. Masood Akhtar.-He joined as Temporary Engineer on 13th January, 1947 and then in Class II on 14th June, 1952. He was appointed officiating Executive Engineer on 10th January, 1953 and made his entry into Class I on 14th October, 1955. He was confirmed as Executive Engineer on 1st June, 1962.
On 3rd January, 1970 he was appointed officiating Superintending Engineer and confirmed as such on 1st June, 1972, and now is a confirmed Chief Engineer by virtue of his selection w,e,f, 24th May, 1979. He has vehemently contested the claim of the appellants against .Him as baseless, and has accepted the impugned seniority list with the observation that he would be much senior than the present position if the rules applicable were to be applied strictly in his case. However he feels contended with the situation as it is today.
14. Zahoorul Hassan.-Zahoorul Hassan was appointed as Temporary Engineer on 30th October, 1947, and was inducted in Class I from 14th October, 1955. He was appointed as Officiating Executive Engineer on 9th September, 1957 and confirmed as such w,e,f, 1st February, 1964. He has accepted the seniority lists and has controverted the claim of seniority so made by the appellants.
15. Muhammad Safdar, -Muhammad Safdar was inducted in Class I w.e,f. 14th October, 1955. He was appointed officiating Executive Engineer from 17th September, 1975 (1) and was confirmed on the same date. He was promoted as Superintending Engineer from 3rd August, 1972. He has supported the impugned seniority list and regarded it as absolutely correct.
16. Wali Muhammad.-Wali Muhammad was appointed Temporary Engineer from 12th November, 1947. He was inducted into Class II on 1st January, 1954 and joined Class I on 14th October, 1955. He started officiating as Executive Engineer from 27th June, 1955 and was confirmed on the same post from 1st February, 1964. He started officiating as Superintending Engineer w,e,f, 3rd January, 1970. He has considered the impugned seniority lists as correct and "defies the claim of seniority so made against him by the appellants.
17. Rana Abdul Qayyurn. -He was appointed as temporary Engineer on 10th December, 1947. His entry into Class II started from 25th August, 1950 and Class 1 from 14th October, 1955. He started officiating as Executive Engineer from 19th May, 1955 and was confirmed in the same rank on 1st February, 1964. His appointment as officiating Superintending Engineer is from 3rd August, 1972. He has taken the impugned seniority list as correct and as according to the rules.
18. Mian Muhammad Afzal.-He is appellant alongwith Mazhar Saeed Qureshi and pro forma Respondent in his case. His bio-data figures amongst the appellants in the earlier part of our judgment.
19. M. H. Zaidi.-He joined service as Temporary Assistant Engineer on 1st December, 1947 and was inducted into Class II on 6th July, 1949 and thereafter promoted as officiating Executive Engineer from 13th March, 1953. He was promoted to Class 1 on 14th October, 1955 and officiating Superintending Engineer w,e,f, 3rd January, 1970. He affirms the impugned seniority list of 1972 and repels entire arguments of the appellants so pleaded against him.
20. Habibur Rahman.-He joined as temporary Assistant Engineer on 14th December, 1946 and was appointed as officiating Executive Engineer from 30th July, 1952 and was confirmed as such with effect from 31st December, 1958. He was appointed as officiating Superintending Engineer with effect from 2nd October, 1962 and was confirmed in that capacity with effect from 1st July, 1970. He was appointed as officiating Chief Engineer with effect from 8th April, 1975 in which post he is still continuing. He has stoutly defended his claim as senior to the appellants and has affirmed the impugned seniority list as absolutely in accordance with the rules and regulations.
21. We will first of all deal with the arguments advanced on behalf of the Bahawalpur group comprising Mirza Saeed Ahmad Beg, Rao Riazur Rahman, Nazar Muhammad and Muhammad Abdul Hameed Rahmani. It has been urged on their behalf that all these appellants were appointed/promoted as officiating Executive Engineers on 13th October, 1955, a date one day earlier than the integration of Bahawalpur State with West Pakistan. They have strongly disputed the arguments advanced by the respondents that the date of their officiating appointments as Executive Engineers would be the date they took over the charge of their new assignments and the date of appointment promotion would be irrelevant for that purpose. According to the appellants, as they were appointed/promoted earlier than the day of integration they would be considered as pre-integration officers integrated with the Executive Engineers of the furrier Province of Punjab who were members of Class service and were holding cadre pests in substantive capacity or otherwise as Executive Engineers. They have further asserted that their appointments were made in regular and clear vacancies available before integration. They have also challenged the power of the Respondent/Government to bestow pro forma promotion on the respondents under the rules of 1967. In this way it has been claimed that rules of 1967 cannot be allowed to be operative retrospectively as rules are always prospective in nature and not retrospective. According to the appellants, this was an act of sheer injustice based on the machinations of those who were in power at that time to deprive the appellants of their legitimate rights and to bestow undue benefits on the Punjab group. They have pin-pointed the cases of three respondents, viz. Sultan Ahmad Qureshi (Resp. No, 14), Habibur Rehman (Resp. No, 15) and Saleem Akhtar (Resp. No, 17), in the appeal of Mirza Saeed Ahmad Beg alleging that these officers were only Class II Officers on 13th October, 1955 and were not members of Class I service in any manner. They too were promoted to Class Jr. By virtue of the order dated 22nd June, 1960 and that too with effect from 1st August, 1955.
It has also been urged that none of them was holder of regular/substantive posts of Executive Engineer in any capacity. They were actually to be integrated not with the appellants but with Class II Officers of the former Bahawalpur State. This contention according to the appellants, finds support from 1971 PLC (CST) 194 according to which seniority in the higher grade will be subject to seniority in lower grade. The appellants, relying on the same citation have submitted that as the respondents were bestowed pro forma promotion after promulgation of rules of 1967, therefore, they will be considered officers belonging to the category of officers of rule 5 of 1967 Rules, whereas the appellants being appointed/promoted earlier than the 1967 rules would fall within the category of officers of clause (a) of rule 4 and shall retain their inter se seniority assigned to them before coming into force of these rules. According to them, in the case of Rafiq Ahmad Qureshi, cited above, clause (a) of rule 4 refers to such persons holding cadre posts in substantive capacity immediately before coming into force of these rules. The seniority of the persons belonging to this category was saved by sub-rule (3) of rule 15, particularly in the light of the earlier arguments that 1967 Rules did not intend to be retrospective in operation and had to be applied prospectively.
According to them, seniority as on 13th October, 1955 has to be determined under the 1941 Rules which were then in force and which were not repealed by the 1967 Rules. It has been vehemently argued on their behalf that the appellants enjoy the safeguard and constitutional protection of subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955, having been promoted against substantive vacancies of Executive Engineers prior to 14th October, 1955, by the competent authority of an integrating unit. They have pleaded that after integration their terms and conditions of service could not be varied in any manner thereby making them less favourable. For this contention they have relied on PLD 1968 SC 1.
22. The appellants have submitted that among the respondents there are a number of persons who have been employed as Temporary Engineers and the Government, while preparing the impugned seniority lists' has included their length of service towards seniority. They have assailed this view point of the Government by submitting that the word 'services' defined in any of the Act and Rules would clearly indicate that this concession allowed by the Government was illegal and contrary to the principle of justice. They have referred to the definition of the term "Service" given as in rule 2(d) of the Bahawalpur State Service of Engineers Rules, 1934, rule 2(g) of the Punjab Service of Engineers Class I (PWD) Irrigation Branch Rules, 1941, rule 2(k) of the West Pakistan Irrigation Engineers Service (Class I) Rules, 1967 as well as the definition in the Integration Circular dated 25th November, 1955, and have submitted that the word "service" has been defined as regular service of either Class II or Class I officers and not of Temporary Engineers enjoying any status in any officiating capacity for any length of service. According to them, no Temporary Engineer, although officiating as Executive Engineer at the time of integration on 14th October, 1955, with any length of continuous officiation, shall be deemed to be the member of any service. For this purpose, to elucidate their stand on this issue, rule 2(h) of the Punjab Service of Engineers, Class I (PWD)
Irrigation Branch Rules, 1941, has been cited. According to this Rule "Temporary Engineer" means an Engineer in the service of the State Railway or of the Public Works Department of the Central Government or of a Provincial Government, whose appointment is non-pensionable, and who is not a member of any regular service". Reliance has also been placed on 1975 PLC (CST) 10 In re : Azmat Ullah and another v. Secretary to Government of the Punjab, Communication and Works Department and 2 others. At this stage, further arguments have been advanced and it has been urged that Temporary Engineer for the purposes of getting benefit of the statutory Rules or the Integration Circular is first to be promoted to Class II service, thereafter to Class I Jr. To become member of Class I service. It is only when he becomes Class I Jr. That his position and the date of his promotion as Class I Jr. Shall be the determining factor for the purpose of determining his seniority in the rank of Executive Engineer which is a Senior Class 1 post. Reliance has also been placed on a well-established principle of law that whosoever is senior in Class Jr. Shall retain his seniority in Class 1 senior at the time of confirmation.
23. The appellants have also assailed the interpretation of the word `otherwise' as interpreted by the Government and have refused to accept the officiating service of Executive Engineers of Punjab, Group, as service liable to be counted towards their seniority. According to them these were only ad hoc appointments against temporary posts made due to shortage of Engineers and the compelling need to have people to hold the divisional charge. According to them, such appointments were made without the approval of the Public Service Commission, therefore this length of service cannot be equated with the services of the appellants which was against regular vacancies and not notional in nature as that of the respondents. With regard to the other respondents while the points raised are common which are mentioned in the earlier part of judgment, an additional ground has been taken in which it has been submitted that since Sultan Ahmad Qureshi, Habibur Rahman, Saleem Akhtar are admittedly senior to the respondents, therefore the appellants would be senior to all other respondents as well. The appellants have also pointed out that the respondents besides Sultan Ahmad Qureshi, Habibur Rahman and Saleem Akhtar were promoted by virtue of an order dated 25th November, 1968 to Class I Jr. w,e,f, 24th October, 1955, therefore the appellants would rank senior to them from this angle also as they were appointed against substantive vacancies of Executive Engineers of the former Bahawalpur w,e,f, 13th October, 1955. The seniority of Wali Muhammad, Zakaria Khan and Muhammad Ijaz has also been challenged on the further ground that they were superseded and not considered fit by the Public Service Commission for promotion to Class I Jr, on account of their bad record. In this manner mala fide has been attributed to the Government who, according to the appellants, have failed to take into consideration an established fact which disqualified the above-mentioned respondents for promotion or for counting their period of service towards seniority.
24. The appellants have also contested the claim of the respondents which, according to them, is mainly based on the case of Muhammad Ashraf Khan v. Secretary, Communication & Works Department, decided on 10th November, 1971 by the Punjab Civil Service Appellate Tribunal (Case No, 163/84 of 1970), as well as case No, 31/15 of 1973 of Mr. M.A. Latif v. Secretary, Irrigation & Power Department and 2 others, decided on 25th June, 1973. It has been submitted that the proposition of law laid down in these cases was altered in the cases reported as under :- ' Azmat Ullah and others v. Secretary to Government of Punjab, Communication & Works Department, Lahore and 2 others 1975 PLC (C S T) 10.
' Mian Iftikharudin v. The Secretary to Government of Punjab, Communication & Works Department, Lahore and 2 others 1974 PLC (C S T) 16.
' Carnal Mustafa v. Secretary to Government of Punjab, Communication & Works Department, Lahore and 4 others 1971 PLC (C S T) 261, ' Muhammad Sharif Ahmad v. Secretary to Government of Punjab Communication & Works Department, Lahore and 15 others 1975 PLC (C S T) 73.
' S. Mubashir Hussain v. Province of Punjab through Chief Secretary to Government of Punjab, Lahore and 2 others 1974 PLC (C S Note 3 ' at p.
2.
' Case No, 28/25/73, decided on 4th June, 1973, ' Naeem Akhtar Khawaja v. Secretary, Government of the Punjab, Irrigation & Power Department and 56 others 1974 PLC (C S T) Note 4 at p.
2.
' Cases Nos, 20/20, 52/19, 53/17 and 54-18 and 1973, decided on 1st June 1973.
' Ahsan Hussain Zaidi v. Secretary, Government of the Punjab, Irrigation & Power Department, Lahore and 49 others 1974 PLC (C S T) Note 7 at p.
4.
' Case No, 1/1 of 1973, decided on 20th March, 1973.
' Abdus Salam v. Secretary, Communication & Works Department, Lahore and 7 others 1974 PLC (C S T) Note 8 at p.
' Cases No, 416/166 of 1970, decided on 17th April 1973.
' Ch. Abdul Majid v. Province of Punjab through Chief Secretary to Government of Punjab, Lahore and 101 others 1974 PLC (C S Note ' 10 at p.
6.
' Case No, of 1973, decided on 20th June 1973.
' Khushi Muhammad v. Secretary to Government of the Punjab, Communication Works Department, Lahore and others 1974 PLC ' (C S T) Note 54 at p.
29.
' Cases No, 96/64 of 1973, decided on 10th September 1973.
' Khawaja Mahboob Hassan v. Secretary to Government of Punjab ' Communication & Works Department, Lahore and 26 others.
' Case No, 118/71 1974 PLC (C S T) Note 59 at p.
32.
' In the case of direct recruits comprising Respondents Nos. 24 to 30 and 41 to 46, impleaded in the case of Mirza Saeed Ahmad Beg and belonging to 1952 and 1954 batches respectively, it has been stated that none of them was holding the charge of a Division even in an officiating capacity. They were S.D.Os. Holding the charge of Sub-Divisions. These respondents, after completion of 10 years service in Class I Junior, were assigned the date of confirmation in the years 1962 and 1964.
According to the appellants they (the appellants) had been wrongly shown junior against these respondents on the ground that being direct recruits of Class I Junior they had earlier dates than the appellants. The grievance has been made that the Government when it came aware of the fact that at the time of integration the appellants were enjoying the status of Senior Class I (having been promoted as Executive Engineers) and were integrated with such officers of former Punjab Province who had been promoted to Senior Class I against substantive vacancies in the cadre of Executive Engineers. These three Punjab Officers were allowed pro forma promotion to make them senior to the appellants. Seniority of the appellants vis-a-vis these respondents has been claimed on the ground that the appellants were holding substantive posts of Executive Engineers on 13th October, 1955, prior to integration. On this basis the appellants ought to have been confirmed after the probation period of 2 years in accordance with rule 7 of the Bahawalpur State Service of Engineers Rules, 1934. In this way, according to the appellants, they would be entitled to be confirmed from 13th October, 1957, whereas the Government deprived them of their statutory right and, on the other hand, promoted some of these respondents as officiating Executive Engineers in 1957, 1958 and 1959. They have challenged these promotions as ab initio void and against the Punjab Service Engineers Rules, 1941.
26. In the case of Mian Muhammad Afzal and Mazhar Saeed Qureshi, they both have challenged the seniority lists of 14th October, 1972 and 28th August, 1975 relating to Superintending Engineers and Executive Engineers. According to them the Officers shown at No, 29 to 31 and 39 to 47 pertaining to the Superintending Engineers and serial No, 3 to 6 and 14 to 23 relating to the Executive Engineers, should be shown junior to them. Similarly, respondents Nos. 3 to 7 and 15 to 25 in the 1975 list of Executive Engineers have been wrongly shown as senior to the appellants. With regard to the others, it has been submitted that they are proforma respondents and thus no relief has been sought against them. These two appellants belong to the category of those Assistant Executive Engineers who were appointed against permanent vacancies through the Public Service Commission in open competition. According to them, their nomenclature was direct entrant in Class I Junior. They were confirmed w. e. f. 1st February, 1954 the date of their entry into service. The grievance has been made that all the respondents appeared before the Public Service Commission for entry into Class I Junior but were unsuccessful. Therefore, they cannot claim themselves either as Temporary Engineers or Members of Class II service. The learned counsel on their behalf submitted that as the conditions of service at that time were governed by the Punjab Service of Engineers Class I (PWD) Irrigation Branch Rules, 1941 therefore, these would be the rules applicable to them as well as to the respondents. It has been argued that in the presence of the 1941 Rules, resort cannot be taken to any other rules or exception made in respect of the appellants.
For this matter they have relied on rule 2(b) Rule 2(1), rule 5 and rule 2(g) of these rules. It was pointed out that, according to rule 5, 50% of the posts of Class I Junior were reserved for direct appointment while 50% were for promotion from Class II with a pre-condition that only candidates who were fully qualified for promotion could be promoted from Class II, if found suitable. Placing reliance on rule 9 it was urged that promotion from Class II service to any permanent post in the service was only to be made after completion of 2 years period in such service. According to this formula, for the next 8 years, 2/3 promoted would be officers of more than 12 years service and 1/3 of officers of less than 12 years in Class II service. It was further submitted that after a lapse of 10 years the position was to be revised and 1/3 of officers promoted had to be of 12 years service and 2/ 3 with less than 12 years. It was contended that none of the respondents was eligible for promotion according to this formula and thus did not stand promoted. The appellants have also referred to the explanation of sub-rule (2) of rule 9 which according to them lays down that service as Temporary Engineer and as Sub-Engineer was to be counted for the purpose of length of service for sub-rule 2, i. e. For the purpose of quota of 1/3 and 2/3 laid down thereunder. A reference has been made to rule 10 which envisaged that Temporary Engineers would not be transferred to the service but could come into the service only after joining Class II if they otherwise satisfied other conditions, and that too within the quota provided by rule 9. In this way the argument has been advanced that no Temporary Engineer could be promoted to Class I service straightway. Emphasis has been laid on the point that cadre and service are two different things and cannot be taken as one. While dealing with the Rules of 1941 attention was invited to rule 15(2)(a) by submitting that according to this Rule a Member of the service having more than 12 years in Class II shall count seniority as Executive Engineer from the date of promotion in Class I. In view of these submissions the appellants claimed that their seniority over the respondents was beyond any controversy.
Similarly rule 15(2)(b), rule 15(6) and rule 15(7) of the 1941 Rules were quoted in support of their contention. The appellants have also assailed the protection sought by the respondents from the West Pakistan Integration Circular dated 25th November, 1955 by submitting that this circular was primarily meant for integration of Provincial services into one service for the new province of West Pakistan only and therefore its purpose was not to determine the inter se seniority of the officers serving in a particular Province before the emergence of West Pakistan, but to safeguard the seniority of those officers who belong to different Provinces and whose services were integrated under the said circular. According to them, no reliance can be placed on the said circular for the purpose of altering the seniority which, according to them, continues to be governed by the 1941 Rules so far as officers belonging to a particular Province were concerned. They have also claimed that the said Circular had no force of rules. Without conceding the sanctity of the said Circular vis- a-vis the 1941 Rules, it was stated that the list prepared under the said circular and corrected upto 13th October, 1955 and published in 1956 declared the appellants as senior in Class I. By this way they want to persuade us that even at the time of integration the appellants were confirmed Class I Officers while none of the respondents had joined Class I either through promotion or direct and none of them was officiating against a substantive vacancy. According to them the respondents were in Class H or were Temporary Engineers but were not in Class I, hence none of them can be considered to be in same grade as the appellants. Therefore, the respondents cannot be integrated with them.
27. While referring to the West Pakistan Irrigation Engineers Service Class I Rules, 1967, which were published in the official Gazette on 30t March, 1967 it was submitted that these rules were never retrospective, therefore, they did not affect the rights of the appellants in any manner whatsoever.
However, once again for the sake of argument it was submitted on their behalf that even on the basis of the 1967 Rules the appellants continue to remain senior to the respondents, because they were members of service in rule 4(1)(a) and the respondents were governed by rule 4(1)(b).
Reliance has been placed for this contention on 1975 PLC (CST) Note 10 at p. 6 and 1971 PLC (C S T)
61 and they have quoted extensively from these authorities to substantiate their above-mentioned position.
28. A peculiar feature in this case is that these two appellants also figure as respondents in the case of Bahawalpur group. In their rejoinder to the arguments of M. A. Humid Rahmani of that group they have submitted that he was engaged in Class I service w. e. f. 1st March, 1955 while the answering respondents joined Punjab Class I service on 1st February, 1954. According to them, they would remain senior to him. With regard to the other appellants of Bahawalpur group, including M.
A. Hamid Rahmani, it was pointed out by these two appellants that their claim of being promoted as officiating Executive Engineers on 13th October, 1955 was misconceived. No promotion post of Executive Engineer was vacant in Bahawalpur on the said date. All these appellants of Bahawalpur group were promoted to officiate against temporary vacancies on temporary basis after the crucial date of 13th October, 19b and their status would be that of S. D. Os. Only. The two appellants have also challenged the claim of Bahawalpur group that the latter were discriminated against by those who were at the helm of affairs in the Punjab at that time by submitting that Bahawalpur service was never considered at par with Punjab service because of staff structure and composition of inferior pay scales. According to the two appellants it is the Engineers from Bahawalpur who have gained by integration as otherwise they would not have been promoted at the rate they were promoted after integration and would have had to wait for their turn for a very very long time. In the case of Nazar Muhammad in particular, it has been stated that he agitated his case of seniority through a writ petition in 1961 in the High Court at Lahore raising the same point which he has raised before this Court. The writ was rejected and even his appeal in the Supreme Court failed. Therefore, it was argued that this case stood concluded and he had no right to agitate an already adjudicated matter again through this appeal before this Tribunal.
29. Saeed Ahmad Zafar.-Saeed Ahmad Zafar has submitted in his appeal that he was directly recruited as a Class II Officer and was liable to be confirmed as Executive Engineer after 10 years of service under rule 15(5) of 1941 Rules, pertaining to PSE Class II, although he may not have worked for a single day on that post. Similarly he has placed reliance on rule 15(2)(b) and rule 15(6) and stated that a Class II Officer having less than 12 years service will be confirmed as Executive Engineer after excluding his temporary service. This way he has claimed that his seniority when confirmed as Executive Engineer will count from the date of his promotion despite the fact that he could not officiate in that position. It has been further urged that even if the promotion is postponed, such a person would resume his original seniority under rule 15(4) when he is promoted ultimately. He has contended that officiating promotion as officiating Executive Engineer will not affect his seniority as Government is fully competent to promote a Class II Officer as Class I Officer as a matter of administrative convenience under rule 15(7). He has also challenged the contention of his opponents that passing of departmental examination was a must for the purpose of seniority and has relied on 1971 PLC (C. S. T.) 31, in this behalf. While elaborating his arguments on this contention he has urged that the seniority of the members of service shall be determined in accordance with their appointment to the service (Rule 9 of Class II Rules of 1941) and out of the members appointed on the same date, the senior in age would be deemed senior. He has also claimed that seniority in Class It will be reckoned from the date of confirmation only. Reliance has been placed by him on 1971 PLC (C. S. T.)
184. While adverting to the Integration Circular it has been stated that the seniority of the pre-unification officers will be determined with reference to the date of continuous appointment, Substantive or otherwise, subject to the proviso that inter se seniority enjoyed by officers of one integrating unit before 14th October, 1955 will not be disturbed. For this he has relied on para. 14 of Integration Circular at page 20. Vis-a-vis Bahawalpur Group it has been submitted that the appellant became officiating Executive Engineer on 29th October, 1954 whereas the. Bahawalpur group people took over in the same, position on a later date. He has gone to the extent to say that in his case some of the respondents of Bahawalpur Group bad been working as Sub-Divisional Officers under him and thus were subordinate to him and he had even been sanctioning their leave and T. A. Bills. The appellant has claimed seniority over such persons in view of the superior position which he held over them. He has also supported the philosophy of the Integration Circular, as arrived at in a meeting held in the Chief Secretary's room on 5th May, 1962 and has also appended extracts of these proceedings with his appeal. According to him, the author of the circular would be the best interpreter of document and the interpretation so made by them in that meeting should be respected. He has also placed reliance on the case of Muhammad Ashraf Khan v. Governments of the Punjab and others (Case No, 163/84 of 1370 in Civil Services Appellate Tribunal) as well as that of M. A. Latif v. Secretary to Government of the Punjab and others (Case No, 31/15 of 1973 CST) in support of his earlier contention.
30. With regard to his seniority as compared to officers of direct Class I of the 1952 and 1954 batches of Punjab, he has submitted that according to the Integration Circular, he would be senior to them on account of his earlier officiation vis-a-vis these officers. According to him, even if the seniority is determined under 1941 Class I Rules as submitted by him earlier, he would stand confirmed as Executive Engineer after 12 years of service reckoned from 6th July, 1949 according to the judgment of the Supreme Court of Pakistan in the case of M. S. Minhas. While adverting to the seniority of the promotees group of Punjab he has relied on his own service date as well as those of the respondents as given by him and has submitted that under paragraph 14 of the Integration Circular inter se seniority was not to be disturbed. It has been vehemently urged on his behalf that rule of inter se seniority is inviolable and sacrosanct. For this he has placed reliance on the case of Shakil Ahmad and that of Shah Muhammad, as well as the seniority list in which both these officers were shown senior to the appellant although their date of officiation was later. He has made a grievance that this principle has been violated in the case of the appellant. Thus the appellant has challenged the proforma promotion granted to Wali Muhammad, Muhammad Safdar, Zahoorul Hassan and Shah Muhammad as irregular and in violation of the settled rules. His argument is that his proforma promotion is to be granted in such a manner that juniors do not become senior to their seniors and seniors do not become junior to their juniors. For this he has placed reliance on 1971 PLC 144. He has prayed in the end that the impugned seniority lists of 15th December, 1971 and 14th October, 1972 be quashed and the Secretary, Irrigation & Power Department, be directed to prepare a correct seniority list afresh. The salient features of his arguments are summed up as under :-
(1) Seniority of the officers of Punjab Group versus Officers of Bahawalpur Group was to be prepared in accordance with para. 14 of the Integration Circular.
(2) Seniority of the Punjab Promotees Group versus officers of direct Class I group of 1952 and 1954 batches, was to be prepared either in accordance with paragraph 14 of the Integration Circular whereby those who were Executive Engineers on 14th October, 1955 in any capacity, substantive or otherwise, will rank senior to those officers who became Executive Engineers after 14th October, 1955 ; or, according to 10 years and 12 years formula after eliminating temporary service as laid down in 1941 Class I Service Rules.
(3) Seniority inter se amongst the officers of Punjab promotes group should be governed in the light of paragraph 14 of the Integration Circular that is that inter se seniority should remain unchanged/undisturbed. He has insisted vigorously that the 1967 Rules would be applicable in his case because he was Executive Engineer before Integration and because the rules cannot be applied retrospectively.
31. M.M. Yunis.-Appellant M. M. Yunis has adopted mostly the arguments advanced by Saeed Ahmad Zafar and has divided the respondents into three groups i,e, Punjab Promoted Group, Punjab Direct Recruits Group and Bahawalpur Group. Vis-a-vis the Punjab Promoted group he has claimed that he had been shown senior to them for the last 24 years as can be seen in the seniority lists of 1946, 1955, 1959 and 1968. He has made a grievance that his inter se seniority was upset in the seniority list of Assistant Executive Engineers of 1961 and in the list of Executive Engineers of 1972 against the dictum of para. 14 of the Integration Circular and thus he was given step-motherly treatment when his case was discriminated in the case of Shakil Ahmad Qureshi. His claim is that he has always headed the Punjab Promoted Group in all seniority lists published prior to 1971 and would definitely rank senior to respondents Ramiz Ahmad Malik, Muhammad Safdar and Zahoorul Hass in. According to him these officers competed with him in the competitive examination in 1950 and stood rejected. The appellant has claimed that he was a confirmed member of Class II service on 30th August, 1950 while the respondents were only Temporary Engineers on that date. Despite the fact that they were given class II prior to Integration they will be held junior to him in Class II and therefore, would be deemed to remain junior in class l also. However, he has differed with Saeed Ahmad Zafar while discussing the case of M. S. Minhas v. Government of West Pakistan and others.
He has invited attention of this Tribunal to the last two paragraphs of the judgment in that case which, according to him, clarifies the position by saying that the judgment was not meant to amend the rules but only to remove the anomaly which had arisen in a particular case. To substantiate his point he argued that despite this judgment, the Class I rules of 1941 were not revised, therefore the decision in the said case was not of general application but was only meant for a particular matter. With regard to the Punjab Direct Recruits Group, an additional argument was that he was promoted as Executive Engineer on 6th October, 1955 and thus being a preunification officer he is to rank senior to Class I direct recruits because he was at the time of integration an Executive Engineer while the respondents were holding charge as Sub-Divisional Officers. Assailing the seniority claimed by Bahawalpur Group who were integrated with Punjab as Group by the Integration Circular, he has submitted that all these respondents were Assistant Executive Engineers at the time of Integration holding charge of Sub-Divisional Officers and thus in no manner can claim seniority over him. He has also contended that Saeed Ahmad Baig and Rao Riazur Rahman took over the charge of officiating Executive Engineers from 16th October, 1955 and 15th October, 1955 and thus they would be considered post-unification officers and would rank below him.
32. After indicating the salient features of the arguments of all the 8 appellants, we will now proceed to bring forth the view point of the respondents as argued before us. The learned counsel for the respondents has first of all challenged the appeals of Mazhar Saeed and Mian Muhammad Afzal as hopelessly time-barred. According to him, the seniority list of 1972 of Executive Engineers and the seniority list of Superintending Engineers have been impugned by these appellants in 1978.
It has been pointed out that no application for condonation of delay was filed alongwith the appeals nor was the same filed till the date when arguments of the parties were heard. In this manner it was urged that for all practical purposes, as well as in the eyes of law, it would be considered as if no request for condonation of delay had been made before this Tribunal and the Tribunal has also not condoned any delay. Reliance has been placed on a large number of judgments delivered from time to time both by the Supreme Court of Pakistan as well as by this Tribunal. Section 5 of the Limitation Act and C. P. C. By Mulla were quoted extensively in support of this contention. We will discuss the judgments so cited in this respect at the proper place when we shall discuss the merits or demerits of these arguments.
33. With regard to the arguments of these two appellants who are also respondents in certain appeals, it has been contended that their entire case is based on their so-called interpretation of provisions of rule 4 (a), 4 (b) of the West Pakistan Irrigation Engineers Service (Class I), Rules, 1967.
The learned counsel has vehemently argued that rule 4 in no manner relates to seniority. Therefore, the plea of the appellants that they were inducted under rule 4 (a) and should thus be considered senior to those who became members of service under rule 4 (b) was of no avail to them. While referring to the Integration Circular it was submitted that the same is meant to determine the seniority of the parties and the seniority of the answering respondents which had to be reckoned from the dates of their taking over as officiating Executive Engineers which was much earlier to the dates of the appellants. According to him, these appellants were inducted as Sub-Divisional Officers when the answering respondents were officiating as Executive Engineers, and the fact of the matter would be that these appellants joined service w. e. f. 1st February, 1954 that is the date when the answering respondents had been promoted as Officiating Executive Engineers about a year earlier. With regard to the case of Saeed Ahmad Zafar, it was argued that undoubtedly he would have been senior to many of the respondents, but as he stood superseded twice, therefore he cannot claim his seniority over the respondents because a superseded officer loses his seniority by virtue of the said impediment. It has been quoted that in February/March, 1953 the names of M.
H. Zaidi, Rana Abdul Qayyum, Qazi Khan and Masood Ahmad were approved for promotion. The case of Saeed Ahmad Zafar was considered alongwith them and he was superseded on account of the fact that he was considered unfit for promotion. This officer was again considered alongwith Messrs Ibrahim Chishti, A. K. Khalid, Sh. Muhammad Akram, Ch. Wali Muhammad and Wasim Khalid Jafery, and again his case was rejected due to his bad record of service. Therefore, he would not get the benefit of inter se seniority as mentioned in para. 14 of the Integration Circular.
34. With regard to the case of Mian Muhummad Yunis it has been submitted that there was no regular appeal on his behalf before this Tribunal as he had joined the issue through a miscellaneous application for reconsideration of his appeal which had since been disposed of. His case, according to the learned counsel, suffered from the principle of res judicata, therefore he cannot be allowed to raise points which already stood adjudicated. Reliance has been placed on section I I, C. P. C. Explanation 4 which provides that any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit and a matter which was directly and substantially in issue in a former suit between the same parties, the same cannot be agitated again.
35. The learned counsel for the respondents has placed before this Tribunal a comparative study of the Bahawalpur Group consisting of M. A. H. Rehmani, Ch. Nazar Muhammad, Rao Riazur Rehman and Saeed Ahmad Beg and of Mazhar Saeed Qureshi and Mian Muhammad Afzal, to show that in no way could the appellants compete with the respondents from any angle. According to him, the crucial date at the time of integration was 14th October, 1955. On this date the Bahawalpur group was admittedly working as Sub-Divisional Officers and would belong to be pre-unification category. It has been pointed out that when integration was in sight, the people at the helm of affairs in Bahawalpur State managed to promote these persons as officiating Executive Engineers, but these officers, took over as such after integration. These appellants were working in the lower grade while the answering respondents were working in the higher grade much before the crucial date of 14th October, 1955. It has been argued that applying the principle laid down in paras. 14 and 16 of the Integration Circular, the respondents being in the higher grade were admittedly senior to the said appellants. Reliance in this matter has been placed on Muhammad Ashraf Khan v.
Government of the Punjab and 7 others, as well as on the case of M. A. Latif. According to the learned counsel these judgments foreclosed the issue by holding that the officers who were not holding the rank of Executive Engineer at that time, though they were in Class I Junior on the said date would he junior to those who were holding the posts of Executive Engineer on 14th October, 1955 irrespective of the fact of their induction into Class I Jr. On an earlier date.
36. The respondents have urged that the Integration Circular had impliedly repealed all the existing laws in Punjab and Bahawalpur service. For this they have relied on PLD 1964 SC 673/779 Abul A'ia Maudoodi v. Government of West Pakistan (1) and PLD 1975 SC 32. The crux of the law laid do.Vn according to the learned counsel of the respondents is that co-existence of two laws on the same subject, cannot be possible, as the subsequent law impliedly repeals the earlier one. It has been further stated that the arguments of the appellants, both relating to the Punjab as well as Bahawalpur service, that they were governed by the Rules which existed before the Integration Circular was issued, was based upon illegal premises. In view of the said ruling it was contended that after issuance of the Integration Circular the Rules of Ex-Bahawalpur and Ex-Punjab service did not remain applicable to the parties. It was also contended that the arguments of the appellants belonging to Bahawalpur service that they were given safeguard by the provisions of rules 8 of the West Pakistan Act, was a misconceived argument. The Integration Circular was only meant to safeguard the vested rights of the officers of the integrating units. It was pointed out that this matter came before a Court in Writ Petition No, 161/58 titled "Nazar Muhammad v. Government of West Pakistan and C. P. S. L. A. Titled Nazar Muhammad v. Government of West Pakistan, decided on 27th September, 1963. In both the cases the view point so advocated by appellant Nazar Muhammad was rejected by the High Court as well as by the Supreme Court of Pakistan. Once again it was reiterated that in accordance with the preamble of the Integration Circular provisions of rule 15 (2) of Class I Rules of 1957 upheld the principle of giving the benefit of appointment as Executive Engineer "Substantive or otherwise". Another important aspect brought before us was that continuously with effect from 14th October, 1955 till 1971 no integrated seniority list was issued.
In this way it was argued that right from 14th October, 1955 onward seniority list had to be determined in accordance with paras. 14 and 16 of the Integration Circular and once the same was drawn as such, the same could not be modified by any stretch of the imagination and by any provisions of the 1967 Rules because these rules are not to be applicable {{FOOT NOTE}}
(1) PLD 1973 SC 451 {{FOOT NOTE}} ' retrospectively. It was further pointed out that the schedule annexed to the Integration Circular at serial No, 4 of the annexure in paragraphs 2, 6 and 21, provided that promotion to these posts will be made from Junior Class I and Class II officers on 50 : 50 basis. It was stated that in accordance with the provisions of this circular the induction of the answering respondents in Class I Jr. Was quite redundant. Therefore, the said date of induction in Class I Jr. Of the answering respondents cannot be made the basis for determination of the seniority over the appellants as they were Executive Engineers on 14th October, 1955 i,e, the date of integration and had to be integrated as Executive Engineers and their seniority had to be determined from the date of appointment as laid down in paras. 14 and 16 of the said letter and the question of induction into Class I Jr. Did not arise at all. Thus any notional date of such induction cannot be considered for the purpose of determination of seniority of the parties inter se. The crux of the argument is that, firstly, there is no provision of promotion to Class I senior on the basis of 50 : 50 ratio as it was meant for the officers holding the rank of Sub-Divisional Officers in Class I Jr. And Class II respectively.
37. These very arguments have been submitted on behalf of M/s. Mohammad Safdar, Rana Abdul Qayyum, Ch. Wali Muhammad and Ramiz Ahmad Malik through their learned counsel, Ch. Mushtaq Masood.
38. Mian Masud Akhtar, respondent who is now holding regular post of Chief Engineer, addressed us at length orally and also submitted detailed arguments to bring forth his view-point. He could not be assisted by his counsel, Mr. Abid Minto who remained under detention during all this period.
It has been argued by the respondent that the seniority list which is the subject-matter in the present case was issued in 1972, but as far as parties are concerned it relates to 90 posts of pre- 1967 Rules. His stand with regard to the 1967 Rules is that these Rules cannot be applied retrospectively, therefore the inter se seniority of the officers who were already a part of the unified service since the date of integration could not be determined by these Rules. He relied only on the 1941 Rules and the Rules of Bahawalpur State Service which relate to the pre-integration period.
According to him, the second set of rules which are applicable are those contained in the Integration circular and the 1967 Rules for West Pakistan. He has categorised the appellants as well as respondents into three categories which were brought together at the time of integration to constitute a single service. These categories, according to him, would be composed of :-
(i) Temporary Engineers in the Punjab Class II ;
(ii) Class I (Junior) Engineers of Punjab Service before integration ; and
(iii) Officers belonging to the former State of Bahawalpur placed in Class I (Junior) of the service.
' It has been submitted that on the eve of Integration some of the Class II/Temporary Engineers of the Punjab were already officiating as Executive Engineers while all the Class I (Junior) Officers of that service were S. D. Os. Executive Engineers and had not yet been promoted as Executive Engineers. According to him the Integration Circular had clarified that there will be no distinction between the officiating charge and substantive posting for the purpose of integrated service and seniority. He has also come forward with his bio-data to show that he joined Irrigation Department of Pre-Independence Punjab Government on 13th January, 1947, as Temporary Engineer, was appointed in P S E II w. e. f. 2nd June, 1952, promoted as officiating Executive Engineer on 16th January, 1953, and confirmed as Executive Engineer on 1st June, 1962. He has also mentioned his further promotion as officiating Superintending Engineer on 3rd January, 1970 and confirmation in the same post on 1st June, 1972. He had now been promoted as regular Chief Engineer on 24th May, 1979. In this way he has spelled out that he had the longest service amongst all the appellants except M. M. Yunis.
39. With regard to Mazhar Saeed and Mian Mohammad Afzal, it was submitted by Mian Masud Akhtar that the senior of the two, Mohammad Afzal, was not born in the Department at the time when the respondent was officiating as Executive Engineer. His birth took place one year after the above appointment of the respondent as officiating Executive Engineer. The respondent has produced before us a chart, which he has now placed on the record, whereby he has tried to explain the general structure of the ex-Punjab Irrigation Department that existed before integration of 14th October, 1955. In this way he has differentiated between the method of first entry into ex- Punjab Irrigation Department by graduate engineers as compared to the Bahawalpur State Service. It has been explained that one method of entering into the Punjab Service was as Temporary Engineer, the other as Class It Officer (Assistant Engineer) and the third as Class I Jr.
Officer (Assistant Executive Engineer). Temporary Engineers and Class II officers, according to him, had common scales of pay and, therefore the officer who joined as Temporary Engineer could be appointed in Class II and he was allowed the same pay in Class II which he was drawing as Temporary Engineer at the time of appointment in Class II. Therefore his seniority in Class II was determined as per rule 9 (ii) of the former Punjab Irrigation Class II Rules, 1941, with the only exception that he was placed below the Class II Officer who was drawing the same pay as Temporary Engineer at the time of induction of the Temporary Engineer in Class II. With regard to Class II Officers, he has informed this Tribunal that they could be promoted in Junior Class I before completion of 12 years' service and their seniority in Jr. Class I was fixed as per rule 15 (ii) (b) which provided that seniority of a Class II officer would be fixed by deducting 2 years from his total Class II service. He has advanced this argument to prove that Temporary Engineers/Class II Officers after service of 12 years, and Junior Class I Officers, after service of 10 years, both became eligible for promotion in Senior Class I (Executive Engineer) in the ratio of 50 : 50 as per rule 5 of the then P S E Class I Rules. According to him, the philosophy behind this method was that amongst the total number of officers in Senior Class I service, that is among Executive Engineers in the Department, the ratio of officers initially appointed as Temporary Engineers/Class II and of those initially appointed as Junior Class I remained 50:
50. He has tried to prove that by this method after entry into Class I service the inter se seniority of all the officers who entered the ex-Punjab Service by any of the three methods was fixed from the date of .Their promotion to senior Class I, and thus they had to remain senior for all times to come. After this their promotion would be in Junior administrative Grade, namely Superintending Engineer and Senior Administrative Grade i. e. Chief Engineer. On the other hand there was no such rules in the case of the Bahawalpur Service which could be parallel to the above-mentioned procedure. In that service the only method of entry into Irrigation Service by graduate engineers was as Class II officers only. Their promotion was governed by selection from Class II to Class I Junior and then to senior Class I. So, in this way, it was not possible, under any circumstances, for a person belonging to Class II to ever go above a Junior Class I Officer nor could a Class II officer ever be promoted to senior Class I without passing through the hurdle of Junior Class I. By the chart so appended with the appeal he has tried to clarify that whereas in the Punjab the three services were parallel services till these were merged in senior Class I, in Bahawalpur the three Services i. e. Class II Junior Class I and Senior Class I were in a sequence. He has stoutly defended the status of the Temporary Engineers and has argued that even in the pre. Integration Class I Rules of 1941 of the ex-Punjab Irrigation Department, the Temporary Engineer was in the line of promotion. The main stress laid by him before us is that prior to their promotion as Executive Engineers, the officers running in the three parallel channels, would not be contesting their seniority as till then they belonged to different cadres and classes of service. He has claimed that specific rights existed for Temporary Engineers for entry into Senior Class I, service before One Unit. As regards ex-Bahawalpur State Service Rules, 1934, be has referred to rule 9 (ii) which lays down the principle of promotion strictly by selection and, not, by the method as applied to the people in Punjab. According to him, seniority on merit was absolutely non- existent in the case of the Bahawalpur Officers. He has contended that it was only after Integration that the people from Bahawalpur service found a bright future waiting for them in One Unit otherwise they would have been nowhere. It was further argued that when One Unit came into existence on 14th October, 1955, it was decided according to the Establishment of West Pakistan Act, 1955, that ex-Punjab Provincial Officers will be given 40% share in the Provincial cadre posts of the new Province of West Pakistan irrespective of the fact that on population basis their share came to 60%. Bahawalpur Officers were tagged on to the Punjab group. He reiterated his earlier point that the Bahawalpur people were the most benefited by this new administrative arrangement and were lucky to obtain 12 posts of Superintending Engineers against the three which were available to them in Bahawalpur State. He summed up his arguments on this issue by controverting the arguments of the appellants that there were three, four or five categories of officers to be integrated after unification. According to him there were only two categories which had to be merged i. e.
(i) Temporary Engineers/Class II. Officers officiating as Executive Engineers immediately before Integration on 13th October, 1955, 1st Category Officers.
(ii) Junior Class 1 Officers working as S. D. Os. Immediately before Integration on 13th October, 1955, to be called as Second Cate- gory Officers later on.
' While referring to the Bahawalpur group, he has pointed out that Mirza Saeed Ahmad Beg, Rao Riazur Rehman and Ch. Nazar Muhammad, have erroneously been mentioned by their learned counsel as officiating Executive Engineers before Integration. For this he has relied on the seniority list prepared by their own Chief Engineer wherein Mirza Saeed Ahmad Beg and Rao Riazur Rahman have been shown as Executive Engineers on 16th October, 1955 and 15th October, 1955 respectively.
The place assigned to Ch. Nazar Muhammad was much below them and his nomenclature has been given as SDO at pages 3 and 6. In this manner he has repelled the arguments of the appellant that they were officiating as Executive Engineers of pre-Integration period. He has further defended the Integration Circular and has supported the contention of Dr. Khalid Ranjah, learned counsel for Zahoorul Hassan, that the said circular had attained the status of statute after the promulgation of Constitution of 1955. Reliance has been placed in this matter on PLD 1968 S.C.1. He has also defended the status of officiating Executive Engineer, and has stated that such postings as "stopgap arrangement'; or "administrative convenience" or "Emergency cadre", etc., carried no status at all. According to him, the significant and important meaning of 'officiation' and 'officiating Executive Engineers' have been deeply enshrined in Integration Circular as well as in the Service Rules of 1967. For this matter he has referred to rule 14 of the said Circular wherein it has been laid down that "for the purpose of Integration the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise." He has laid special stress on the word "otherwise". He has also given great emphasis to the words "to the Grade" occurring in the said Circular and has again referred to paragraph 16 which, according to him, has laid down that "for the purpose of the two preceding paragraphs, grade may be defined broadly as consisting of a number of posts of the same category in the same class of service, carrying the same duties and responsibilities and in a common scale of pay in the case of officers belonging to different integrating units in comparable scales of pay." He has supported his arguments on the extract from the meeting held on 5th May, 1962, in the room of Chief Secretary to show that his interpretation of "substantive or otherwise" was fully borne out by the author of the said Integration Circular.
40. With regard to the argument that until 1961 the appellants have been declared senior to the respondents, it has been submitted by him that nothing could be further from the truth. According to him, it was for the first time in 1971 that a list containing inter se seniority of the appellants and the respondents was framed by the Government. As this list was full of errors and defects the same was challenged by all the respondents before the Civil Services Appellate Tribunal. In view of this challenge, the Government withdrew the list of their own and notified the fresh impugned seniority list. This impugned seniority list was notified by the Government repeatedly on 14th October, 1972, 23rd October, 1972 and then on 6th September, 1975. Thus, according to him, the impugned seniority list was notified and published in its present form four times. With regard to the four principles as enunciated by Mr. Masud Ahmad Riaz, Advocate, on behalf of the appellants, he has considered these as not Applicable to the present case and has labelled this proposition as nothing but a myth of his own creation. He has also tried to distinguish before us the rulings cited by the learned counsel for the appellant in order to persuade us that these were hardly attracted to the present case: the law in the field was that of judgments in the cases of Mohammad Ashraf and M. A. Latif which had settled once for all the principles of seniority regarding the status of officiating Executive Engineers vis-a-vis the claim of the appellants. He has therefore, urged that as the service particulars of the respondents was absolutely on all fours with those of M. A. Latif, therefore he would be deemed senior to all the appellants in this case. With regard to the individual cases of M. A. Hamid Rahmani, Rao Riazur Rahman. Ch. Nazar Mohammad and Mirza Saeed Ahmad Beg of Bahawalpur group, he has discussed their merits in detail and submitted that all of them have failed to support their case both on facts as well as on law. It has been further argued that ad hoc appointments did not confer any right on them in matter of appointment in the same post nor would their service count towards seniority. In the case of Mian Mohammad Afzal, it has been submitted that this appellant had construed the rules of seniority according to his own conjectures.
His assumptions are not based on any service Rules in force after Integration. The contention of this appellant and that of Mazhar Saeed Qureshi that they should be considered to have been promoted to Senior Class I as per rule 7 of Class 1 Rules of 1967, was ill-founded. According to him, perusal on the seniority list and the written reply of Government clearly shows that they have been confirmed in Senior Class I after 10 years of service which was according to rule 15 (5) of Class I Rules of 1941 as required in rule 7 (3) of Class 1 Rules of 1967. His argument with regard to the case of Saeed Ahmad Zafar was that he had failed to quote the answering respondent as respondent therefore his appeal would not affect the position of the present respondent in the impugned seniority list. He has assailed the formula of Saeed Ahmad Zafar i. e. That all Temporary Service be ignored while working out seniority in Senior Class I service as deriving support from the authority of the judgment in the case of M. S. Minhas. It has been submitted that this judgment was given on the basis of Class I Rules 1941, which ceased to exist after Integration. The philosophy of the judgment was based on a particular case before the said Court and could not be taken into consideration for formulating general principles. It was contended that in fact after Integration two very well-defined service Rules were promulgated i. e. The Integration Circular just after Integration and the Class I Rules of 1967. His argument with regard to Saeed Ahmad Zafar is identical with the earlier arguments of Ch. Mushtaq Masood, who had represented a number of respondents that this officer was superseded twice, and whereas his case was much better than that of any other appellant, he would be hit by these two supersessions and thus would lose seniority over the respondents. In this way he concluded in respect of the other appellants that the appeals of Bahawalpur group were liable to be dismissed on merits, whereas the case of Mohammad Yunis was hit by the principle of res judicata and that of Mazhar Saeed and Mohammad Afzal was hopelessly time-barred.
41. In order to appreciate the main arguments advanced by the parties which we have given in the earlier part of our judgment it would be necessary as well as useful to reproduce the relevant rules which we have to interpret and whose impact we have to apply on the contentions of the appellants as well as the respondents before us. We will first of all advert to the 1937 Rules, which introduced and inducted the Punjab Service of Engineers Class I, and which came into force on 1st April, 1937. These rules replaced the Central Service rules for the Indian, Service of Engineers which served the administrative unit designed as Province of Punjab under the diarchy, the provincial service was also established in 1920 with the designation of "Punjab Service of Engineers" it became necessary to distinguish the two services of the same classes as Class I and Class 11. There also existed some other categories of engineers employed by the Provincial Government including Temporary Engineers viz. (a) Temporary Engineers. (b) Members of Engineering Service. These rules provide as under :-
42. 1937 Rules.-Under rules 13(5) and 13(6) promotion from Junior grade of a Member considered to befit-10 years service. Promotion from Class 11-12 years' service. Criteria for determining seniority ; ( ) The junior-most member in the senior grade is senior to senior-most member in the junior grade.
(2) Every subsequent enrolment into the senior grade takes his place next below the last member already in senior grade.
(3) Direct recruitment to the Junior grade seniority inter se was taken and arranged.
(4) A member recruited into the junior grade by promotion from Class It ranks junior to all those members who are promoted from Class I before him as also to any direct recruit whose service is two years or less than two years, shorter than the service in Class II of the promotee concerned.
(5) if a member of the junior grade is due for promotion into Senior Grade but is not promoted to that grade a specific decision is a must, when such postponed promotion ultimately comes through then the said promotee gets his original place in seniority unless Government otherwise direct. (Rules 13(4)).
(6) No corresponding rules were available for Class II people.
(7) Temporary Engineers find place everywhere under Rules of 1937.
43. 1941 Rules.-1941 Rules were recast but main provisions remained the same except following three changes of consequence so made thereunder :-
(l) Temporary Engineers were made ineligible for entry into the service, without passing through the corridor of Class H (Rule 10 as modified in 1941).
(2) While a specific provision was still not made, as to whether the duration of service as Temporary Engineer should or should not be counted for the purpose of seniority of a person who entered into Government service as Temporary Engineer and was taken into Class II and from there recruited into the Junior grade of the service, a provision was made that in counting the 12 years period which qualified for entry into senior grade without going through the Junior grade continuous service as Temporary Engineer prior to appointment to Class II be added to the Service in Class 11 (Rule 15(6)).
' 44. 1943 Rules. -As against 1937 Rules and 1941 Rules where seniority was determined from the date of promotion, it was notified through No, 4822-S-E/729-1937 dated 28th April, 1943 at page 548 of the 1943 volume that inter se seniority of promotees was to be fixed after taking into account the length of previous continuous service in P S E Class II as Temporary Engineer in Irrigation Branch.
45. 1945 Rules.-A modification was made as No, 31198-E.O.-87-38 of 28th September, 1945. It was an attempt at brevity at the cost of clarity, with the intention to implement Rules of 1943 on uniform basis. It spelt out as follows :- (0 Seniority is fixed separately in two grades-the junior-most in the Senior Grade being senior to the senior most in the Junior Grade.
(ii) Entry (not seniority) in the Senior Grade controlled according to prescribed criteria separately applicable to those who come from Junior Grade and those who come from Class II.
(iii) (a) Seniority in the senior grade from either avenue takes its place in the list of seniority in that grade next below the junior-most among those who have entered before him, irrespective of whether he has come from the Junior Grade or from Class II.
(b) A person in the Junior Grade, whose entry in the Senior Grade is expressly postponed would take the position he would have taken if his entry had not been postponed, unless otherwise directed by the Government.
(iv) Seniority in the Junior Grade is determined as follows :-
(a) Among direct recruits of each calendar year separately according to the dates of birth, placing the recruits of later year below the recruits of earlier year. (if the period of probation is extended, Government will decide to place the recruit on the same place or not).
(b) Enter the date of commencement t of service against his name.
(c) Among the promotees, separate list according to their actual dates of commencing service, whether as Temporary Engineer or as member of Class II Service. Add two years to these dates for comparison with direct recruit for the purpose of seniority and enter the notional date so obtained in respect of each promotees against his name. #TBS (e) #TBE
(d) Now place each name from the List of promotees next below the last of the names on the list of direct recruits whose date of commencing service is the same as earlier than the notional date of the promotee in question. The resultant integrated list is the list of Seniority in the Junior Grade.
46. Integration Circular No, 871-1nteg. 55/4471 dated 25th November, 1955.-"For the purpose of integration the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise, to the grade-which may be defined broadly as consisting of a number of posts of the same Category in the same class of service, carrying the same duties and responsibilities and in a common scale or in a comparable scale of pay."
47. After Integration, the seniority of new entrants will be determined in accordance with the following formula :-
(a) Seniority inter se of the direct recruits will be determined on merits.
(b) Seniority inter se of the promoted officers will be determined with reference to the dates of their substantive appointment in the grade reserved for promotion.
(c) Seniority of direct recruits vis-a-vis promoted officers will be regulated with reference to their respective date of appointment in the service.
48. Rules of 1967.-The West Pakistan Irrigation Engineering Service (Class I) Rules, 1967, provide, in effect, that- #TBS (b) #TBE
(a) The inter se seniority of persons holding in a substantive capacity immediately before 20th March, 1967, posts included in the order of the service, will be in accordance with rules and orders previously in force.-(Rule 15(3) read with rule 4(a)).
Seniority shall be determined separately in various grades (Inference from the opening sentences of rule 15 and necessary implication of rule 15(1)(b)).
(c) Except in the case of direct recruits in the Junior Grade of Class I, the seniority of the others in that grade, and the seniority of every one in other grades, shall be counted from the date on which the post continuously held by him fell vacant. Rule 15(1)(6) read with rule 7(3).
(d) If a Class II officer or a Temporary Engineer while officiating in the post of an Executive Engineer, is taken into the senior grade of Class I, his seniority will commence from the date on which he began his continuous officiating (Rule 15(2)).
(e) If the cases of more officers than one are considered for promotion to a higher grade and an officer who is junior is given preference shall continue to rank senior even after the superseded officer is subsequently promoted to the same grade (Rule 15(2) Explanation).
' GIST : In case if a direct recruit and a promotee have been appointed against vacancies of the same kind (either both substantive or both temporary) then the seniority for the direct recruit will commence from the date of appointment, provided that if the two dates are the same, the promotee will rank senior to the direct recruit.
(f) Irrespective of whether a person is a direct recruit or a promotee, if one is appointed against a substantive vacancy and the other is against a temporary vacancy at the same time, the one appointed against a substantive vacancy ranks senior, ' In the Class II Rules of 1967 :
(a) Seniority commences from the date of appointment but,
(i) Direct recruits of the same calendar year take their places according to the order of merit ;
(ii) Credit is available for full duration of continuous service as Temporary Engineers 97(8) 8(3)
7(3).
(b) Cadre of Temporary Engineer is abolished. (16).
49. After reproduction of extracts of relevant rules which have been the subject of discussion by both the parties interpreting the same in their favour, we will now enter into discussion of the arguments advanced by the parties in support of their claims. As this matter before us pertains to the determination of seniority of the appellants vis-a-vis respondents, we would like to observe that "the seniority is an order of priority". Its essence consists in giving precedence to one over another. Since precedence can be based upon different criteria resulting in different orders of priority, persons adversely affected by one criterion are tempted to advance reasons in favour of another which might be favourable to them. This being the mental state of the parties before us, we shall have to examine carefully the status of the appellants as well as of the respondents governed by the respective Rules relating to their respective service. In this consolidated judgment which combines in itself the case of eight appellants (sic) claims as well as the structure of service between the Bahawalpur group and their respondents in Punjab group. As mentioned earlier the Bahawalpur group comprised M. A. Hamid Rahmani, Rao Riazur Rahman, Mirza Saeed Ahmad Beg and Ch. Nazar Muhammad. These appellants, when they joined ex-Bahawalpur State as Junior Class I Officers, their services were governed by the Bahawalpur State Service of Engineers Rules, 1934. These graduate engineers were governed by rules 9 and 10 of these Rules with regard to the prospects of their promotion. The class in which they joined initially was Class II and from this class they were promoted to Junior Class I and then to Senior Class I. Promotion of these officers was strictly by selection and the seniority in the service was to be determined in accordance with the order of their regular promotion to the Grade. Seniority on appointment to the service was similarly determined in accordance with the date of appointment to the service. So in their case it was not possible that a Class Ii Officer should ever be promoted to Senior Class I without passing through the hurdle of Junior Class I.
50. On the other hand, unlike Bahawalpur, there were three different methods of first entry into ex- Punjab Irrigation Service by graduate engineers. One could enter into this service as ;-
(I) Temporary Engineer ;
(2) Class II Officer (Assistant Engineer)
(3) Jr. Class I Officer (Assistant Executive Engineer).
The peculiar features of this structure was that a Temporary Engineer and Class II Officer had common scale of pay, therefore an officer who joined as Temporary Engineer could be appointed to Class II. The seniority of a Temporary Engineer was determined as per rule 9(ii) of the then Punjab Irrigation Service Rules, 1941, with the rider that he was placed immediately below the Class II Officer who was drawing the same pay as that of Temporary Engineer at the time of induction of said Temporary Engineer in Class II. With regard to Class II Officers they were eligible for promotion in Junior Class I before completion of 12 years of service and their seniority in Junior Class was governed as per rule 15(ii)(b) which provided that seniority of a Class II Officer will be fixed by deducting two years from his total Class H service. To make it more clear, a Temporary Engineer/Class II Officer after putting in 12 years of service, and in the case of Jr. Class I Officer after rendering 10 years' service, both of these acquired eligibility to be promoted in Senior Class I (Executive Engineer) in the ratio of 50:50 as per rule 5 of the then PSE Class I Rules. The reasoning behind this 50:50 formula was to induct these two _e4asses in Senior Class I service i. e. Executive Engineer in a manner that representation from both the classes should be in equal proportion thus benefiting the Department with their experience of long service. Once these officers entered into Senior Class I service by any of these three methods, their seniority was fixed from the date of promotion to Senior Class I. However, their inter se promotion in the service to the rank of Junior Administrative Grade, namely Superintending Engineer, and Senior Administrative Grade i. e. Chief Engineer, was under the criteria of seniority cum merit and pure selection respectively.
51. When we go through the structure of the ex-Punjab Temporary Engineers/Class II Officers, we find that the Temporary Engineers were vested with prescribed rights wherein no such class of this status was available in the ex-Bahawalpur service. To make it more clear it could be summed up as under :-
(i) Temporary Engineers inducted in Class H. And Class II Officers acquired eligibility to be promoted to Senior Class I service to the extent of 50% of the vacancies after completing 12 years of service alongwith Junior Class I Officers who had completed 10 years service.
(ii) Once an officer of category of Temporary Engineers and Class II Service completed two years of service i. e. After they had the service of two years and one day, no junior Class I Officer who was recruited direct to this service after this could ever overtake those Temporary Engineers and Class 11 Officers in seniority in Class I (Senior) service.
(iii) The Class II Officers/Temporary Engineers who had completed 12 years' service were eligible to be promoted to Senior Class I service without passing through the hurdle of Junior Class I.
When comparing this structure with the structure of Bahawalpur group under the 1934 rules we have no hesitation to come to the conclusion that such like prescribed rights were not available to the officers of that class in that State as the three services viz. Class, II, Jr. Class I and Senior Class I were in a sequence and not parallel services as in the case of Punjab where they finally merged in Senior Class I service. In this matter we will place on record the chart with the heading "Chart Showing General Structure of ex-Punjab Irrigation Service and ex-Bahawalpur State Irrigation Service", presented at the time of arguments by Masud Akhtar, Chief Engineer, a respondent in this case. A fair look at this chart will help to understand our discussion on this subject.
52. If all the rules given by us from 1937 to 1967 are carefully looked into alongwith the departmental notes on the files, it would be found that tenancy of the rules, as they moved from one stage to another has been to treat temporary service of engineers more and more as being at E par with Class service and has treated those entering Class I from Class II more and more and equal with those entering Class I directly. We will elucidate the position of Temporary Engineers further at a proper place in a later paragraph of judgment, when we will be called upon to determine this issue by meeting arguments of the appellants that Temporary Engineer was a term alien to the rules and should not be considered relevant in matter of seniority. For the present we will look into the grievance of the Bahawalpur group which they have highlighted and a mention of which has been made by us earlier while referring to their arguments so advanced in support of their case. In this context we have to assess the situation as it was-on the fateful day of 14th October, 1955 when the era of One Unit was enshrined in. While going through the Establishment of West Pakistan Act of 1955, we find that 40% share was allocated to the ex-Punjab Province, irrespective of the fact that the population of the said Province was 60% in the new Province of West Pakistan. The lot of Bahawalpur group officers fell with the Punjab Group. As a result of this integration and 40% formula, the Bahawalpur group who came over to the new Province of West Pakistan gained immensely. The respondents had brought before us instances of this gain by submitting that in the ex-Bahawalpur State service there was only one post of Chief Engineer for Irrigation, Highways and Buildings, Electricity and Mechanical Departments, and the appellants by the process of Integration acquired instead of I/3rd post of Chief Engineer, two to three posts of the said status. Similarly it was further pointed out that while in the case of Bahawalpur State the cadre of S. Es. Posts was maximum 3 whereas after integration 12 posts of this status were allocated to Bahawalpur. We are not required to go into this aspect of gain and loss formula as the question before us is not as to who gained and who suffered. What we have to decide is the rights of the parties inter se in accordance with the rules and law prevalent at the relevant time. The quotations of the above- mentioned instances may be useful to meet the opening sentence Le Estrange which has been quoted by M. A. Hamid Rahmani in his appeal as a base to establish that the law should not prevail over equity. The quotation is as under:- "Of all injustices that is the greatest which goes under the name of Law and all sorts of tyranny, the forcing of the letter of Law against equity is the most unsupportable."
53. It will not be out of place to mention at this stage that equity is never taken into consideration in isolation. There are two further ingredients complementary with it i. e. Justice and good conscience.
What we have to see in view of the above is not equity alone but to find whether justice and good conscience allows equity to prevail in this case, as this Court is not court of equity in toto.
54. The claim of the Bahawalpur group is mainly based on the assertion that they were pre- unification officiating Executive Engineers, therefore, they would remain senior to those who were appointed as such later. When we looked into the seniority list prepared by their own Chief Engineer which is placed on the record as annexure `3B' with the reply of the respondents we find that Mirza Saeed Ahmad Beg and Rao Riazur Rahman were shown promoted as officiating Executive Engineers with effect from 16th October, 1955 and 15th October, 1955 respectively. In cast of Ch. Nazar Muhammad he was shown Junior to them and be is mentioned as S. D. O. Similarly their dispute about the date of officiating Executive Engineer assigned to M. A. H. Rahmani was whether he acquired the status by an order of appointment which is a day earlier than the date of integration or after taking over charge of the said assignment. Both the parties have strongly contested this point, the case of the appellant being that it would be an order of appointment which would bestow upon him straightway this status and not the date of taking over of actual charge. With regard to this contest we do not feel it necessary to settle this controversy as when adverting to their status "other wise', under the rules, this issue would become immaterial. Real issue in this case which would settle the controversy once for all, would be, whether there are 3, 4 or 5 categories of officers to be integrated after integration or there were only two categories which had to be dealt with. Integration was effected on the promulgation of Integration Circular which came into being for service cadre in the Province of West Pakistan and the absorption of existing persons thereunder. The above purpose has been manifested in S & GAD letter No, 171-INT-55/4471 dated 25th November, 1955. The status of this circular has been challenged by the appellants in different ways and manners according to their interpretation, relying on the same when it suited them and overlooking the rules which went against their interest. Paras. 14 and 16 of this Circular deal with seniority. Their Lordships of the Supreme Court of Pakistan in PLD 1968 SC. 1 have relied on this Circular for determining the inter se seniority of officers belonging to different units after Integration. At this juncture we will also attend to the more prominent argument of the appellants that term "officiation" and "officiating Executive Engineer" has no meaning for the purpose of seniority as these were "stopgap arrangement", "Administrative convenience", "Emergency cadre", etc. On other hand the respondents have stoutly defended this term as meaning ful and fully in accordance with the Integration Circular as well as rule 15 of the West Pakistan Irrigation Engineers Class I Service Rules, 1967. By closely looking into the history of the case as enshrined in Integration Circular and rule 15 of 1967 Rules and attending to the arguments advanced by both the parties, we have no hesitation to come to the conclusion that if we accept the arguments of the appellants that there were three to five categories of the existing service of engineers at the time of integration, the result would be nothing but confusion and chaos. The fact of the matter is that there were two categories which had integrated at the time of integration, i. e.-
(1) Temporary Engineers/Class II Officers officiating as Executive Engineers immediately before Integration (on 13th October, 1955) to be called as First Category Officers.
(2) Junior Class I Officers working as S. D. Os. Immediately before Integration (on 13th October, 1955) to be called as Second Category Officers.
' We find lot of strength for the above conclusion both from the integration Circular's paras. 14 and 16, rule 15 of 1967 Rules of Class I and by interpretation of the Integration Circular by its author is, when they met on 5th May, 1962 to sort out the rival claim. Para. 14 runs as under :- "for the purpose of Integration, the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment substantive or otherwise, to the grade as defined in paragraph 16 below. In case, two officers are bracketed together, owing to their appointments taking effect from the same date, the older officer will be given seniority over the other. The orders in this paragraph are subject to the proviso that the inter se seniority officers belonging to the same integrating Unit will not be altered.
' Thus if in the former Punjab an Officer was placed above another officer with longer continuous officiation in the grade, the former will be placed first on the integrated list with reference to the date of his continuous officiation. The latter officer will be placed immediately below him. The same rule will apply if the former officer with longer continuous officiating. In that case those officers would go immediately below him in the integrated list as a group and in the same order."
' For the purpose of integration, the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment "substantive or otherwise" to the grade as advanced in para-16 below :- "For the purpose of two preceding paragraphs 'Grade' may be defined broadly as consisting of a number of posts of the same category in the same class of service carrying the same duties and responsibilities and in a common scale of pay, or in case of officers belonging to different Integrating Units, in comparable scales of pay.
' The order in this paragraph was subject to the proviso that the inter se seniority of the officers belonging to the same integrating unit will not be altered. Thus if in the former Punjab an officer was placed over and above the officer with long continuous officiation in the grade, the former will be placed first on the integrated list with references to the date of his continuous officiation and the latter officer will be immediately placed below him.
55. While referring to rule 15 of Class I Rules, 1967, para. 2 would be relevant. According to this para. "notwithstanding anything in sub-rule (I), the seniority of Class II Officers and Temporary Engineers recruited to or absorbed in the Service, who were holding the posts of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiation as such, provided that if in any particular case. Government is of the opinion that the application of this sub-rule causes or will cause hardship to one or more members of the service, Government may, in consultation with the Commission, assign to the persons concerned such seniority as it considers equitable". These paragraphs of the Integration Circular, when contested by the persons so affected, came under consideration in a meeting held in the Chief Secretary's Room on the 5th May, 1962. This meeting was attended by the following :-
(I) Mr. S. Fida Hassan, S. Pk. C S P (in the Chair) Chief Secretary to the Government of West Pakistan.
(2) Mr. A. G. N. Kazi, C S P, Secretary to the Government of West Pakistan, Finance Department.
(3) Mr. Abdul Hamid, Secretary to the Government of West Pakistan, Law Department.
(4) Mr. Abdul Aziz, T. Pk., P S E I, Secretary to Governme nt of West Pakistan, Communication & Works Department.
(5) Mr. Muhammad Afzal, P C S, Secretary to Government of West Pakistan, Home Department (formerly Secretary to Government of West Pakistan, C & W Department).
(6) Mr. Abdul Latif Anwar, C S P, Deputy Secretary (I & A) Communication & Works Department, ' After deliberating over the controversy they came to the following conclusion "Finance Secretary expressed the views that para. 16 of the Integration Circular refers to posts in the same class of service and not individuals ii the same Class of service. The result would be that for the purposes of Integration of Executive Engineers the words 'in the same class of Service' in para. 16 of this Circular are to be taken to mean all Executive Engineers as a Class whether they are in Class I, Class II or Temporary Engineers and that one integrated seniority list of all classes of Executive Engineers was to be prepared on 14th October, 1955 with dates of continuous officiation subject to inter se seniority as the criterion."
' While taking into consideration the case of Temporary Engineers, this high-powered body concluded :- "Chief Secretary observed that it would be unfair not to recognize Temporary Assistant Engineers and Class II Officers' claim to seniority on the basis of the dates of their continuous officiating as Executive Engineers because they had actually been performing the duties of Executive Engineers."
56. In view of the two paragraphs, rule 15 of the 1967 Rules and interpretation of those who were authors of the Integration Circular, we have no hesitation to repel the arguments so advanced by the appellant that in fact there were five categories which had to be integrated and not two as stated above and that the status of officiating Executive Engineers, was no status at all. At this juncture the respondents have highlighted the en masse appointment of the appellants close to the date of Integration as a machination to boost their numbers and status and to confer undue advantage on them whereas they were nothing but S. D. Os. At the time of Integration. This argument, although not without force and even if not accepted would not in any way, affect the case of the respondents, as the respondents were officiating Executive Engineers long before Integration.
57. While dealing with the Second Category Officers that they became Executive Engineers by virtue of promotion after Integration and therefore their case would be covered by para. 17 (b) of the Circular which states "the Seniority inter se of promoted officers will be determined with reference to the dates of their substantive appointment in the quota reserved for promotion." This quota is given at item 4 of the annexure to the Circular, which states "Class I Senior Scale- promotions to these posts will be made from Junior Class I and Class II Officers on a 50 : 50 basis".
Here the words used are Class II Officers and not `Class II officers officiating as Executive Engineers'.
Class II. 'officers who are not officiating as Executive Engineers are S. D. Os. So, according to this item 4 of the annexure, the appellants i. e. Junior Class I Officers (Second Category) were to be promoted on the quota of 50% alongwith the S. D. Os. Or Class II Officers.
57-A. A similar issue came before the Service Tribunal in case No, 163/70 of 1970 namely Muhammad Ashraf Khan v. Government of the Punjab and others. This dictum was repeated after the impugned seniority had come into existence in case No, 31/15 of 1973 namely M. A. Latif v.
Secretary to Government of Punjab. As these two cases cited by the respondents are the bed-rock of their stand, it would be useful to quote the relevant operative portion of this lengthy judgment in the case of Muhammad Ashraf Khan by the late Mr. Justice S. A. Mahmood, who was Chairman of the Services Appellate Tribunal at that time :- "The appellant and respondents 3 and 5 were appointed to the B&R Branch of the Punjab Service of Engineers. The Punjab Service of Engineers B&R Branch (Recruitment and Conditions of Service)
Rules, 1942, governed Class I Officers. In respect of Class II officers, the rules remained draft rules from which guidance was usually taken. In Integration, seniority- of pre-unification officers for the purposes of integration came to be determined under paragraph 14 of the Integration Circular by the date of continuous appointment in the grade, which term was defined in paragraph 16 of the Integration Circular, and the seniority of new entrants and promotees was to be determined under Paragraph 17 of the Integration Circular. Then came the West Pakistan Service of Civil Engineers (B & R) Class I Rules, 1967 which were notified on 28th March, 1967. Rule I5 of these rules provided for determination of seniority in the various cadres of the service and sub-rule (2) of rule 15 provided in particular for the determination of seniority of Executive Engineers as follows :- ' Rule 15.-Notwithstanding anything contained in sub-rule (1) the seniority of Class II officers and temporary Engineers recruited to or absorbed in the service, who were holding the post of Executive Engineers or equivalent posts, shall be determined with reference to their continuing officiating as such provided that if in any particular case Government is of the opinion that the application of this sub-rule causes or will cause hardship to one or more members of the service, Government may in consultation with the Commission assign to the persons concerned such seniority as it considers equitable,"
"Therefore on the day of integration, while respondents Nos. 2 and 7 belonged to Class I (Junior) (a higher class of service than Class II) and the appellant belonged to Class II, the appellant was holding a higher grade of rank with higher pay, carrying higher duties and responsibilities. That the officiating rank held by the pre-unification officer was not to be ignored is further clear from paragraph 14 of the Integration Circular, which provides that for the purposes of Integration the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment substantive or otherwise to the grade, as defined in paragraph 16. Paragraph 12 further provides that officiating officers and those promoted to Provincial services after that date will not be placed in the group of sub-cadre, but will be brought on all West Pakistan cadre of the service. Thus while the respondents 2 and 7 were in Class I (Junior), the appellant was holding a post of Executive Engineer carrying higher pay and higher responsibilities though he was not actually appointed to Class I (S). The important fact is that while the appellant was appointed as Executive Engineer on 10th November, 1954, Mr. Muhammad Rafique Goheer was so appointed on 22nd August, 1956 and Mr. K. A. Fayyaz Ali respondent, was so appointed on 28th August, 1956. This was a case of promotion in the case of Mr. Muhammad Rafique Goheer Mr. K. A. Fayyaz Ali, so that their seniority in the rank of Executive Engineer had to be determined in accordance with paragraph 17 (b) of the Integration Circular, while the seniority of the appellant had to be determined under paragraphs 14 and 15 (2) of 1967 Rules. The date of continuous appointment of the appellant being earlier ; he was senior to the two respondents in the grade of Executive Engineers. We might mention that the view which we have taken above is consistent with the departmental instruction as the case of representation of Faquir Abdul Khair of group sub-cadre.
He was of Class II Officer officiating at the time of integration as Executive Engineer. Having been shown junior to Mr. Rafique Goheer and Mr. K. A. Fayyaz Ali respondents, claimed seniority over them on integration in officiating Executive Engineer. His claim of seniority on integration was upheld by the high-powered Committee consisting of Chief Secretary, Addl. Chief Secretary, Finance Secretary and the law Secretary, in the meeting held on 5th May, 1962. The Committee decided that seniority of all existing officers, who were holding the rank of Executive Engineer should be prepared on the basis of their continuous appointment and he was shown senior to them in the seniority list. It was again decided by the Committee of Ministers on 16th July, 1964 that for all existing Executive Engineers the rule of seniority should be continuous appointment in the rank.
"In the case of Mr. K. A. Fayyaz Ali Khan we have held already that as on integration he was Assistant Engineer in Class I (Junior) he was junior in rank to the appellant, who though basically belonged to Class II was holding the rank of Executive Engineer, a higher grade with higher pay and higher duties and responsibilities, while the appellant became as officiating Executive Engineer on 15th November, 1954. Mr. K. A. Fayyaz All was so promoted on 28th August 1956. He has been confirmed from 1st May, 1962. In the case of Mr. Fayyaz Ali, his seniority in the grade of Officiating Executive Engineer will be governed by paragraph 17(b) of the Integration Circular and determined by the date of his confirmation, namely 1st May, 1962, whereas the seniority of the appellant is to be determined by paragraph 14 of the Integration Circular. The same effect is brought about by rule 15
(2) of 1967 Rules. Thus, in the rank of Executive Engineer the appellant will rank senior. Now we have to determine whether Mr. K. A. Fayyaz Ali has superseded him in the rank of Superintending Engineer. In this connection, it may be mentioned that Mr. K. A. Fayyaz Ali was first superseded on 24th August, 1963, because two enquiries he was exonerated and in the second he was administered a simple warning. He was superseded by 18 Junior Officers in 1963, though he was declared fit for promotion in his confidential reports. It was in view of this supersession by 18 officers that the Minister Incharge observing on 23rd August, 1967 that the officer by being superseded for four years, had been amply punished and that punishment would serve as effective warning, that he recommended that he be promoted for six months in the first instance subject to his earning good report. The Governor accepted this recommendation and ordered his promotion on trial for six months, but in the formal notification of his promotion as S. E. Made on 29th August, 1967, no such condition was attached.'
"Mr. Tanvir Hussain respondent No, 5 and the appellant were appointed to PSE III by the same order on 1st June, 1955 with effect from 24th January, 1954 but the appellant was placed senior to Mr. Tanvir Hussain. The appellant began to officiate as Executive Engineer on 10th November, 1954. Mr. Muhammad Tanvir Hussain began to officiate on 9th January, 1950. Their seniority in the rank of Executive Engineer had to be determined by rule 15 (2) of the 1967 rule and thus determining their seniority, the appellant was senior to Mr. Muhammad Tanvir Hussain. They were promoted as S. E.
On the same date, namely 19th March, 1968 and as such Mr. Tanvir Hussain did not supersede the appellant in the rank of S. E. As both the appellant and Mr. Muhammad Tanvir Hussain were not approved for promotion as S. E. In 1954.
' Mr. Anwarul Haq Qureshi's date of appointment as Executive Engineer is 27th July, 1957. He was first promoted as officiating Executive Engineer on 8th November, 1955 but was again reverted on 5th October, 1966. Their inter se seniority in the rank of Executive Engineer, having to be determined under rule 15 (2) of the 1967 Rules, the appellant is senior to him on the basis of the date of continuous appointment as Executive Engineer. However, on 28th June, 1969 he was assigned proforma date of promotion as Executive Engineer with retrospective effect from 18th June, 1955 on the ground that his immediate Junior Mr. Inam Bari Pervaiz, was promoted on that date. This proforma date of promotion was assigned to him in order to save him from becoming Junior to Mr. Inam Bari Pervaiz. This assignment of proforma date did not, however, make him senior to the appellant, as the assigned date was 18th June, 1955 which was later than the appointment of the appellant as officiating Executive Engineer namely 10th November, 1954. Thus Mr. Anwarul Haq Qureshi respondent still remained junior to the appellant in the rank of S. E. This date was assigned to him for the reason that this was the date on which his immediate Junior Mr. Inam Bari Pervaiz was promoted as S. E. The premises on which this date was assigned to Mr. Anwarul Haq Qureshi senior and not junior to Mr. Anwarul Haq Qureshi is Class II."
58. The crux of the judgment is tha,t the officers who were not holding the rank of Executive Engineer at tar time of Integration, were junior to those who were holding the posts of Executive Engineers on 14th October, 1955 irrespective of the fact whether they have been inducted in Class I Junior or not on a later date. However, the learned counsel for the appellants Mr. D. M. Awan, contended that the view taken in the case of Muhammad Ashraf Khan was later changed by the same Tribunal in a number of cases. However, when confronted with this situation that M. A. Latif's case was decided after the impugned seniority list was in the field, he had no answer to the same.
We will discuss all the cases so cited by him to show that the same do not support his point of view and relate to matters different from the one which is now before us. Arguments have also been advanced on behalf of the appellants that people who were in service before the Integration Circular would be governed by the Rules of 1941, therefore there would be no impact of the Circular on the issue before this Tribunal with regard to the status of the officiating Engineers. We have taken these arguments into consideration and find the following in Abut Ali Maudoodi v.
Government of West Pakistan (1).
"Co-existence of two laws on the same subject cannot be possible. Subsequent law impliedly repeals the earlier one.
' In PLD 1973 SC 451 we find: "It is an established principle of interpretation of statutes that subsequent legislation on the same subject would, by necessary implication, repeal the earlier law to the extent of their mutual inconsistency." Similarly, PLD 1975 SC 32 states :- "Legislature would legislate only for the purposes of bringing about effective result."
59. In view of the above we are in accord with the learned counsel for the respondents that on the issuance of Integration Circular the Rules of ex-Bahawalpur and ex-Punjab did not remain applicable to the parties. It will be also useful to attend to the argument advanced and vehemently contended that section 8 of the West Pakistan Establishment Act, 1955, provided a safeguard to the services of the integrating units. Therefore, no interference can be made with their status in relation to that of the respondents. By looking into the arguments and going through the provisions of section 8 of the West Pakistan Establishment Act, 1955, we find that the arguments is not convincing. Firstly, for the reason that this guarantee only existed for whatever status they had prior to Integration among themselves which would not be interfered with, and, secondly, this issue came under consideration in writ Petition No, 161/58 titled "Nazar Muhammad v. Government of West Pakistan" and special leave to appeal before the Supreme Court of Pakistan on the same case and was repelled. Much controversy has also been raised during the course of arguments before us about the retrospective application of Rules of 1967. It is a settled law, which nobody can deny, that rules are always prospective in nature unless and until it is clearly laid down that the said rules would apply retrospectively. In this context we could like to make it amply clear that our reference to rule 15 of the 1967 Rules is not meant to show that we accept that rule 15 was retrospective in nature for the benefit of the respondents, but only to show that this principle of officiation was fully enshrined in the Integration Circular as well as in the Service Rules of 1967. This point is further met by the fact on the record was that w. e. f. 14th October, 1955 till 1971 no integrated seniority list was issued, and the argument of the respondents is acceptable that right for 14th October, 1955 onward seniority has to be determined in accordance ' with paras. 14 and 16 of the Integration Circular, and once the same was drawn up it could not be modified by any stretch of the imagination by the 1967 Rules because these rules were not applicable retrospectively. In this way, the worth of the argument submitted by the appellants that they had been inducted in accordance with the provisions of rule 4 (a) is whittled down. Rule 4 does not deal with the seniority of the parties and same has been clearly explained in the earlier judgment in the case of Muhammad Ashraf Khan and the later one of M. A. Latif.
60. The respondents while arguing their case have also, by way of cross-objections, pointed out a number of defects in the impugned seniority list which, according to the learned counsel, should have shown them much higher on the ladder as compared to the position so assigned {{FOOT NOTE}}
(1) PLD 1964 SC 673 (779) {{FOOT NOTE}} ' to them in the said list. As this list has been accepted, therefore we would not go into this aspect of the case as it would be burdening the file with contentions which were later on withdrawn,
61. Before concluding the case of Bahawalpur group it will be useful to mention that M. A. Hamid Rahmani, Rao Riazur Rahman, Mirza Saeed Ahmad Beg and Ch. Nazar Muhammad were holding the posts of S. D. Os. On 14th October, 1955 although Mr. M. A. Hamid Rahmani was inducted in Class I Junior on 1st March, 1955. Similarly, Rao Riazur Rahman and Mirza Saeed Ahmad Beg were also S. D. Os. On the crucial date of 14th October, 1955 and their taking over as Executive Engineer was subsequent to the said crucial date. These two appellants failed to show and establish on the record that there were any available vacancies of Executive Engineer in Ex-Bahawalpur State before the crucial date of 14th October, 1955. These two appellants made appeals in early 1972 and their cases were disposed of for non-prosecution, though no such specific orders are available on the files. They came forward only through an application when the case of M. A. Hamid Rahmani was to be argued to claim that as there is on the files no positive order of dismissal of their appeals for non-prosecution, they may be allowed to make their submissions, Indolence on their part is evident yet their case is being decided on merits only.
62. In the case of Ch. Nazar Muhammad, besides merits which are not in his favour he is estopped to challenge his seniority over the answering respondents because this was sub judice before the High Court and the Supreme Court and his writ petition and Civil Petition for special leave to appeal were rejected by the High Court and the Supreme Court. This fact he has himself admitted in para. 4 of his appeal wherein it has been made clear by him that his claim of officiating Executive Engineer from 13th October, 1955 stood repelled by this Court. Mr. D. M. Awan, learned counsel for the appellants, has cited a number of cases to show that the Service Tribunal has given views divergent from those in the case of Muhammad Ashraf Khan v. Government of Punjab as well as of M. A. Latif v. Government of Punjab. Although after perusing the said citations we are of the view that these cannot override the two earlier judgments, as the facts in the judgments delivered are not at par with those of Ashraf Khan and M. A. Latif, yet following the golden, principle that brevity should not be at the cost of clarity we proceed to give our reasons for the same.
63. We are of the opinion that detailed discussion of these judgments, which we will now analyse and distinguish with Ashraf Khan and M. A. Latif cases, will make our point of view further clear which we have discussed in the earlier part of our judgment vis-a-vis the status of officiating Executive Engineer and that of Class l Junior which remained the subject of these appeals for adjudication for full ten long years before our predecessors from 1972 onward, i,e. The time the impugned seniority list of 1972 came in the field,
64. Azmatullah and another v. Secretary to Government of Punjab Communication and Works Department, Lahore and 2 others (1).
' This citation comprises two appeals, one by Azmat Ullah (Case No, 98/63 of 1971) and the other by Mehmood Riffat Case No, 151/86 of 1971), both the appellants claiming seniority over the same respondent, {{FOOT NOTE}}
(1) 1975 PLC (CST) 10 {{FOOT NOTE}} ' namely `r". A. Siddiqui, The pertinent point in this case is that all the three contesting officers, namely Azmat Ullah, Mehmood Riffat (the appellants) and Y. A. Siddiqui (the respondents) had been appointed as temporary Assistant Engineers in the P. W. D. Of the former Punjab. The bio-data of their service with regard to their induction in Class II and Class I was different from each other.
Both the appellants had been inducted in Class I Junior with effect from 24th July, 1954 by Notification dated Ist June, 1955. Whereas the respondent was inducted in Class II with effect from 24th July, 1954 and was inducted into P. S. E. (Junior) with effect from the same date i,e, 24th July, 1954 by the Notifications dated 24th April, 1969 and 28th May, 1969. In this case, it was clearly observed by the learned Tribunal as follows would like to make it clear that the seniority of the appellants as Executive Engineers was determinable under paragraph 17 (b) of the Integration Circular on the basis of the dates of substantive appointment to the grade. The appellants remained senior to respondent No, 1 in Class I Junior by reason of induction into Class I Junior by Notification dated 1st June, 1955 when respondent No, 2 was appointed as Class II officer. The two appellants have been inducted in Class I Junior with effect from 24th July, 1954 : the respondent has not yet been confirmed in class I Junior."
65. It was in these circumstances that the learned Tribunal held that the appellants have been absorbed un ler rule 4 (a) must be deemed to be senior to the respondent who had been absorbed under rule 4 (b) of the West Pakistan Civil Engineers (B & R) Class I Rules, 1967. This case is entirely distinguishable from Muhammad Ashraf Khan and M. A. Latif's cases for the reasons that the parties in these cases belonged to different Integrating units and, therefore their seniority had to be determined under paragraph 14 of the Integration Circular. According to the said provisions as stated by us earlier, the seniority of all pre-unification officers is to be determined with reference to the date of continuous appointment, substantive or otherwise, as defined under paragraph 16 which in turn provides that the grade may be defined broadly as consisting of a number of posts of the same category in the same class of service, carrying the same duties and responsibilities in a common scale of pay or in case of officers belonging to different integrating units in comparable scales of pay. No such question was determinable in Azmat Ullah and Mehntood Riffat's cases, as the contesting parties did not belong to two different integrating units. Therefore, this authority is entirely distinguishable and is not at all applicable to the facts of the present case. It is worth noticing that the consideration of giving seniority of officers inducted under paragraph 4 (a) as compared to the ,se who were inducted under paragraph 4 (b) of the Rules of 1967 has been made by the Tribunal while determining the seniority of the contesting parties of only one integrating unit.
No such consideration has ever been made while determining the inter se seniority of two different integrating units, because in that event the only provision which has been made applicable is paragraph 14 read with paragraph 16 of the Integration Circular. {{FOOT NOTE}} 1974 PLC (CST) 16 {{FOOT NOTE}} 'Mian Iftikharuddin v. Secretary to Government of the Punjab Communication 4 Works Department, Lahore and 2 others.
66. This case again is entirely distinguishable from the cases of Muhammad Ashraf Khan and M. A.
Latif, not being a case where the contesting parties had come together on account of integration from two integrating units. The learned Tribunal while giving the facts has itself observed as follows "The appellant as well as M/s Muhammad Iqbal and Iqbal Ahmad Baig, respondents No, 2 and 3 were appointed as Temporary Assistant Engineer in the former Punjab PWD (B&R) Department on 6th October, 1951.
67. Another important feature of this case which serves as a clear line of distinction with the cases of Muhammad Ashraf Khan and M. A. Latif is that the three contesting officers, namely Mian Iftikharuddin, the appellant, and Muhammad Iqbal and Iqbal Ahmad Baig, the respondents, were promoted as officiating Executive Engineers with effect from 21st March 1961, 25th November, 1957, and 28th October, 1957 respectively i, e. Subsequent to the promulgation of the Integration Circular.
Therefore, the question of applying the principle of para. 14 read with para. 16 of the Integration Circular did not arise at all, because they were not officiating Executive Engineers at the time of Integration. In any case, it being not a case of contesting officers from two integrating units, the principles of para. 14 read with para. 16 of the Integration Circular will not be applicable. It will be far-fetched to say that the Tribunal in this case had ever deviated from the principles enunciated in Muhammad Ashraf Khan and M. A. Latif's cases. The facts of that case are, therefore, clearly distinguishable. So far as the discussion of the induction of the officers under rule 4(1)(a) and 4(1)
(b) of 1967 Rules is concerned, and the consideration of the Tribunal that the officers inducted under rule 4(1)(a) are senior to officers inducted under rule 4(1)(b) is entirely irrelevant in this case because it has no bearing for the determination of the seniority of the officiating Executive Engineers, substantive or otherwise, of the Integrating units of 14th October, 1955. {{FOOT NOTE}} 1971 PLC (CST) 261 {{FOOT NOTE}} ' Kamal Mustafa v. Secretary to Government of the Punjab Communication and Works Department, Lahore and 4 others.
' The facts of this case are again distinguished from the facts of Muhammad Ashraf Khan and M. A.
Latif's cases. This again is not a case of the contesting parties belonging to two integrating units as envisaged in the Integration Circular. The facts about the service of the parties, as narrated by the learned Tribunal, is as follows :- "The appellant and respondents Nos. 3 to 5 were recruited as Temporary Assistant Engineers in B & R Department of the Punjab Government on 18th November, 1947, 12th July 1948, 23rd July 1948 and 24th February, 1950 respectively."
68. In this authority, though it has been held that the officers absorbed as members of the Class 11 service under rule 4(1)(a) are senior to those who have been absorbed under rule 4(1)(b) of the Class II Rules of 1967, but no line of deviation is marked from the principles enunciated in Muhammad Ashraf Khan and M. A. Latif's cases, particularly for the reasons that the authority cited does not relate to the determination of seniority of contesting parties of the status of officiating Executive Engineers, substantive or otherwise, on 14th October, 1955 relating to two different integrating units as envisaged in the Integration Circular. Hence the authority is entirely distinguishable. {{FOOT NOTE}}
70. 1975 PLC (CST) 73 {{FOOT NOTE}} Mohammad Shari Ahmad v. The Secretary to Government of the Punjab Communication & Works Department, Lahore and 15 others.
' This authority is entirely distinguishable and has no relevancy whatsoever with Muhammad Ashraf Khan and M. A. Latif's cases, and there has been no deviation from the principles laid down by the learned Tribunal in the said case. The facts of this case are that the appellant having been appointed as Temporary Assistant Engineer in the B & R Br. Of the PWD of the former Punjab Province took over as such with effect from 19th August, 1953 and was promoted as officiating Executive Engineer, with effect from 6th March, 1962. Similarly, respondent No, 2 was recruited as Temporary Engineer in the Electrical and Mechanical Branch of the P. W. D. Of the former State of Bahawalpur from 18th March, 1955 and was promoted as officiating Executive Engineer with effect from 17th February, 1962. Respondent No, 3 was recruited as Temporary Assistant Engineer in the B & R Branch of the P. W. D. Of the former Punjab Province with effect from 23rd September, 1953 and was promoted as officiating Executive Engineer with effect from 20th February, 1962. Respondent No, 4 having been recruited as Temporary Assistant Engineer in the B & R Branch of the P. W. D. Of the former Punjab Province with effect from 8th May, 1954 was promoted as officiating Executive Engineer with effect from 5th March, 1962. Respondent No, 6 having been appointed as Apprentice Engineer in the P W D of the former Bahawalpur State from 15th November, 1953 was promoted as officiating Executive Engineer with effect from 17th February, 1959. Respondent No, 7 having been recruited as Temporary Assistant Engineer in the PWD of the former Bahawalpur State was promoted as officiating Executive Engineer with effect from 13th February, 1959.
71. The facts of this case amply show that none of the contesting parties was promoted prior to the crucial date i. e. 14th October, 1955 as envisaged in the Integration Circular. Therefore, the question of application of para. 14 read with para. 16 does not apply at all. Though in this case, the benefit of seniority has been given to those who were absorbed under rule 4(1)(a) of 1967 Rules as compared to those who were absorbed under rule 4(1)(b). But this does not amount to any deviation from the principles enunciated in Muhammad Ashraf Khan and M. A. Latif's cases. Rather there was no occasion, under the facts of case, for the learned Tribunal to interpret para. 14 read with para. 16 of Integration Circular. The question of determination of the seniority of the contesting respondents as officiating Executive Engineer, substantive or otherwise, on the day of 14th October, 1955 did not arise at all in this case.
72. 1974 PLC (C S T) Note 3 at p. 2 : ' S. Mubashir Hussain v. Province- of Punjab through Chief Secretary to Government of the Punjab, Lahore and 2 others.
' This case, which was decided on 4th June, 1973, has not at all discussed the provision of paragraphs 14 and 16 of the Integration Circular, nor any deviation has been made from the interpretation made in Muhammad Ashraf Khan and At A. Latif's cases. This authority is not relevant to the fan is of determination of seniority as officiating Executive Engineers at all. It only talks of the determination of seniority as Assistant Engineers. The West Pakistan Irrigation Engineers Service (Class I) Rules, 1967, have been interpreted in this case and the officers absorbed under rule 4(1)(a) have been declared senior to those absorbed under rule 4(I)(b). This is neither case of the contesting officiating Executive Engineer belonging to different integrating units nor is there any interpretation of paragraphs 14 and 16 of the Integration Circular. {{FOOT NOTE}}
73. 1974 PLC (C S T) Note 4 at p. 2 : {{FOOT NOTE}} ' Naeem Akhtar Khawaja v. Secretary to Government of the Punjab Irrigation & Power Department and 56 others.
' This case again relates to the interpretation of rule 4(1) (a) of West Pakistan Irrigation Engineers Service (Class H) Rules, 1967. It is not a case of contesting patties belonging to two integrating units on the basis of their being officiating XIENs, substantive or otherwise, on 14th October 1955.
Therefore, the facts of this case as also the authority is entirely distinguishable. It only talks of the seniority of officers who were absorbed under rule 4(1) (a) and 4(l)(b) but that has no connection whatsoever with the determination of the seniority of the contesting parties belonging to two integrating units as officiating XENs. Substantive or otherwise on 14th October, 1955. {{FOOT NOTE}}
74. 1974 PLC (C S T) Note 7 at p. 4
75. {{FOOT NOTE}} ' Ahsan Hussain Zaidi v. Secretary to Government of the Punjab Irrigation & Power Department, Lahore and 49 others.
' This authority is again distinguishable. It does not talk of the con--testing officiating XENs belonging to two Integration Units, nor of the determination of seniority as officiating Executive Engineers, substantive or otherwise. The discussion with regard to rule 4(1) (a) and rule 4 M(b) of the West Pakistan Irrigation Engineer Services Class II Rules, 1967 in this case is entirely irrelevant so far as the facts of Muhammad Ashraf Khan and M. A. Latif's are concerned. {{FOOT NOTE}}
76. 1974 PLC (CST) Note 8 at p. 5 {{FOOT NOTE}} Abdul Salam v. Secretary Communication and Works Department Lahore and 7 other's, ' This case again is not between contesting parties belonging to two Integrating Units, nor has the seniority of officiating Executive Engineers, substantive or otherwise, on the date of integration I. e.
14th October, 1955, been considered in this case. Therefore, to say that there is any deviation from the principles enunciated in Muhammad Ashraf Khan and M. A. Latif's cases is entirely baseless.
Anyhow, para. 17(b) of the Integration Circular dated 25th November, 1955 has been applied on the facts of this case. It clearly shows that there had been any question of determination of the seniority of the parties as officiating Executive Engineers, substantive or otherwise, on 14th October, 1955 i,e, the date of the Integration, the same must have been resolved according to paragraphs 14 and 16 of the Integration Circular. The discussion. With respect to absorption under rules 4(1)(a) and 4(I)(b) of the West Pakistan Services of Civil Engineers Rules, 1967 is entirely irrelevant as there was no contest of officiating Executive Engineers, substantive or otherwise, belonging to two Integrating Units as it was in Muhammad Ashraf Khan and M. A. Latif's cases. {{FOOT NOTE}}
76. 1974 PLC (CST) Note 10 at p. 6 : {{FOOT NOTE}} ' Ch. Abdul Majid v. Province of Punjab through Chief Secretary to Government of Punjab; Lahore and 101 others.
' This case is entirely irrelevant and is distinguishable. The appellant was recruited through Public Service Commission as temporary Assistant Engineer with effect from 22nd November, 1966, whereas all the 100 respondents were initially appointed as Temporary Engineers with the approval of the Public Service Commission from dates ranging from 1955 to 1963. The facts of this case clearly indicate that none of the contesting parties was officiating Executive Engineer, substantive or otherwise on crucial date i,e, 14th October, 1955, as envisaged in the Integration Circular.
Therefore, the learned Tribunal had no occasion to discuss the provisions of rule 14, read with rule 16 of the Integration Circular as it was not a case of integration at all. The facts being entirely distinguishable the authority has no bearing at all on the facts of the present cast. {{FOOT NOTE}}
77. 1974 PLC (CST) Note 54 at p. 29 : {{FOOT NOTE}} ' Khushi Muhammad v. Secretary to Government of the Punjab Communication & Works Department, Lahore and 12 others.
' This case again does not show that there was any contest between officiating Executive Engineers, substantive or otherwise, on the date of integration, i,e, 14th October 1955, belonging to two different Integration Units. At the most, the discussion of rule 4(1)(a) and rule 4(1)(b) of the Rules of 1967 has been made in this case and the officers absorbed under rule 4(1)(a) have been considered senior to those who were absorbed under rule 4(I)(b), but this has no bearing on the facts of the present case. As it was not a contest between the officers of the rank of officiating Executive Engineer, substantive or otherwise, of two Integrating Units, there was no occasion for the learned defunct Tribunal to discuss paras 14 and 16 of the Integration Circular. Therefore, it cannot be said in this case also that there has been any deviation from the principles enunciated in Muhammad Ashraf Khan and M. A. Latif's cases. {{FOOT NOTE}}
78. 1974 PLC (C S T) Note 60 at p. 32 : {{FOOT NOTE}} ' Ehsan Elahi Johri v. Secretary, Communication & Works Department, Lahore and 10 others.
' In this case the provisions of rule 15(2) of the West Pakistan Service of Civil Engineers (II & R) (Class I) Service Rules, 1967 have been interpreted and it has been held that seniority as Assistant Engineer or as temporary Assistant Engineer is not relevant for the purposes of determination of seniority as Executive Engineer, because, according to this authority, the date of continuous appointment is determinative of seniority subject to operation of explanations appended to rule 15 ibid, and officers senior in Class I Junior will maintain their seniority in Class I senior. In this case also there was no contest between officiating Executive Engineers, substantive or otherwise, of two integrating units, nor has there been any deviation from the principles enunciated with respect to paragraphs 14 and 16 of the Integration Units in the cases of Muhammad Ashraf Khan and M. A..
Latif. This case too is entirely distinguishable.
79. Some of the appellants have also made a grievance that the Government Notification with which the respondent allowed pro forma promotion to many of the contesting respondents so that they could claim their status above the appellants, came into field to make the case of the appellants, weak. We have taken this point into consideration and found that the right to bestow proforma promotion is a right which the Government enjoys and this right is not open to question.
This practice has been in vogue for a long time; instructions have been given from time to time with regard to its scope, but nowhere do we find that such like promotions were banned at all. Even up till now, Government has not taken away this prerogative from the authorities above the appellants or the contesting respondents. We are conscious of the existence of certain instructions that this treatment be meted out to only very deserving persons and in very special cases. In view of the above we have no hesitation to hold that this contention of the appellants is liable to be repelled as being without any force.
80. After concluding the case of Bahawalpur group we now take up the cases of Mazhar Saeed Qureshi and Mian Muhammad Afzal. The case of these two appellants is based upon interpretation of rules 4 (a) and 4(b) of the West Pakistan Irrigation Engineers Service Class 1 Rules, 1967. We have discussed in the earlier part of our judgment that rule 4 does not relate to seniority, therefore the appellants do not get any benefit on account of the fact that they have been inducted into service under rule 4(a). We have also discussed in detail that induction of answering respondents in Class I Junior would, in no way, benefit the appellants as this exercise was redundant and irrelevant in accordance with the schedule attached to the Integration Circular. In this circular it has been specifically provided in item 4 that 100% Class I Junior posts were to be filled on direct basis.
According to the provisions of Integration Circular, the seniority of the appellants and the seniority of the answering respondents had to be reckoned from the dates of their taking over as officiating Executive Engineer which,, in the present case, is many years earlier to the crucial date i. e. 14th October, 1955. These appellants were also in fact nothing but SDOs on the said date whereas the answering respondents were officiating Executive Engineers. Even otherwise, both these appeals are hopelessly time-barred. The seniority list of 1972 has been challenged in 1978 by these two appellants. No application for condonation of delay was filed alongwith the appeals and was only presented when the case was at the stage of arguments. The Tribunal heard them on merits subject to all just exceptions. We have elaborately discussed the principle governing the condonation of delay in our judgment of Ghulam Qadir Dahar v. Government of the Punjab in Appeal No, 154/795 of 1980. In that case the judgment of Mr. Justice Sardar Mohammad Iqbal as he then was, and Justice B. Z. Kaikaus was relied upon that section 5 of the Limitation Act does not destroy the right of a person but only bars the remedy when certain rights have accrued in favour of the opposite party and that, therefore the principle of limitation should be applied strictly if such rights have already accrued. But whet no vested rights have accrued the law should be brought into play in accordance with the merits of each case. In the present case, the appellants have filed these appeals after a period of six years, whereas the other appellants in this case challenged the impugned seniority list within time. In this manner the right of seniority has accrued to the respondents spread were many years. Therefore, we are bound to take note of the fact that the right of the respondents is not affected and is fully safeguarded. In this connection, we have the advantage of looking into section 5 of the Limitation Act alongwith a number of rulings viz. 1974 SCMR 423424 ; 1981 PLC (C S) 20 ; PLD 1976 SC 258, 265, 267 ; 1980 PLC (C. S.) 190 and many others cited in this behalf. The preponderance of opinion in all these cases is, as taken by us in the earlier part of our judgment, that the law of limitation is to be strictly applied and no condonation should be made when it is found that a person has acted with indolence and without any justification. In the present case no justification has been made by the appellants to persuade us to condone the delay of six years, particularly when their other colleagues came promptly before us, challenging the impugned seniority list. We therefore dismiss the appeals of the appellants both on merits as well as being hopelessly time-barred.
81. The case of Mian Muhammad Yunis before us suffers from incurable defects a. This case was disposed of by this Tribunal on 20th April, 1980 and the points raised by him were considered and rejected. His is a case of res judicata and the same cannot be revived through the miscellaneous application which he has laid before us. The only argument advanced in this matter by the appellant was that in fact he was agitating certain points which had not been taken in the appeal filed earlier before this Tribunal. This argument is of no avail in view of explanation 4 to section 11, C.
P. C. Wherein it is specifically provided that any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and subsequently in issue in such a suit, and that a matter which has directly and substantially been in issue in a former suit between the same parties, litigating under the same title, could not specifically be agitated by the said person again. For these reasons we have no hesitation to dismiss the appeal of Mian Muhammad Yunis on the point of res judicata.
82. In the case of Saeed Ahmad Zafar we find that his case is fully governed by our earlier discussion on paras. 14 and 16 of the Integration Circular read with rule 15 of the 1967 Class I Rules, and, therefore according to merits, his appeal was liable to succeed and his claim of seniority stood fully established. Unfortunately, the impediment in his way is insurmountable. In February/March, 1953 he was considered alongwith M/s. M. H. Zaidi, Rana M. Qayyum, Qazi Khan and Ch. Masood Ahmad for promotion, but was superseded on account of the fact that his record did not allow that he should be promoted on merits. Once again, his case was considered alongwith M /s. Ibrahim Chishti, A. K. Khalid, Sh. Muhammad Akram, Ch. Wali Muhammad and Jasim Khalid Jafery, but was again rejected. Rule of supersession is an established law which needs no elaboration. Once a person is considered and superseded be loses his seniority. In the appellant's case, his date of promotion/officiation to the post of Executive Engineer would be the one which was given to him when he stood duly promoted during the course of time. In view of this reasoning we have no hesitation to hold, that the appellant cannot claim seniority over the respondents which otherwise stood established if the mishap of supersession had not occurred during his career.
83. In the light of the above discussion in which we have taken into confederation the claims of all the appellants, out of which some of them also surge as respondents, we are of the considered opinion that the impugned list of 1972 formulated by the respondents vide Irrigation & Power Department's Notification No, Estt.-I-SY/1/72 dated 14th October, 1972, is fully in accordance with the rules laid down in the Integration Circular, paras. 14 and 16 and the spirit of rule 15(5) of the 1967 Rules and that no exception can be taken against it.
84. The result is that we proceed to dismiss the appeals of M/s. M. A. Hamid Rahmani, Rao Riazur Rahman, Mirza Saeed Ahmad Baig and Ch. Nazar Muhammad as being without merits. The appeals of Mian Muhammad Afzal and Mazhar Saeed Qureshi fall as being time-barred as well as being without merits. The case of Mian Muhammad Yunis is dismissed as being hit by the principle of res judicata and the appeal of Saeed Ahmad Zafar is dismissed on account of his having been superseded twice during his service. There will be no order as to costs.