1. S. A. MAHHOOD (CHAIRMAN).-This is ail appeal by Mr. Ghulam Hussain, Assistant. Director, Directorate of Labour Welfare, Manpower and Employment Wing, Lahore under section 4 (1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, directed against the orders contained in the Ministry of Health, Labour and Family Planning, Government of Pakistan, letter dated 4-4-1970, and seniority list issued by the Labour Department, Government of West Pakistan, Lahore fixing the seniority of class I officers, by which the appellant was reduced in seniority and Mr. M. A. Syed, formerly known as Ghulam Mustafa, respondent No. 4, was raised in seniority.
2. The appellant is present along with Mr. Zainul Abiddin, Advocate, Mr. M. A. Syed, respondent No. 4, is present in person. No other respondent is-present. It may be mentioned that Mr. S. G. Yusuf, respondent No. 3, and Ghulam Rasool Niazi, respondent No. 6 have retired from service and Mr.Kazam Ali has been assigned to Baluchistan. Their names have, therefore, been struck off from the list of respondents, leaving the Secretary to Government of West Pakistan, - Ministry ofHealth, Labour and Family Planning, Islamabad, Secretary to Government of Punjab, Labour Department and Mr. M. A. Syed, as the only respondents: This appeal arises out of the following facts: Mr. Ghulam Hussain, appellant, was selected as Assistant Manager of Employment Exchange through the Federal Public Service Commission in the 6th batch, and he joined for training at the Staff Training Centre, Delhi, on 23rd February 1946. On 9th April 1946, after the completion of 3 months course of training, he was posted at the Employment Exchange Office at Peshawar. On 16th April 1947, he was promoted as Assistant Manager; Grade I, and on 12th February 1955, he was promoted as Assistant Manager, Grade II. In August 1956, he was promoted as Assistant Manager Grade I, to be re promoted as Assistant Manager Grade 11 on 19th February 1957. He was promoted as Regional Manager/Assistant Director on 20th October 1962, but was reverted on 11th February 1963. He was re promoted as Regional Manager on 7th December 1964.
3. Mr. M. A. Syed, respondent No. 4, who was then known as Mr. Ghulam Mustafa, was selected through the Federal Public Service Commission in the 6th batch. He reported at the Staff Training Centre, Delhi on 6th June 1946 and after completing three months training at the Star Training Centre. Delhi was posted in the office of Employment Exchange, at Abbottabad on 31st August 1946. He was promoted as Manager Grade 11 on 10th March 1955, and as Regional Manager/Assistant Director on E. 15th October 1962.
4. Recruitment of managerial staff for Employment Exchanges used to be made through the Federal Public Service Commission, Government of India during 1945-46 for the posts, which were. originally created on temporary basis for a period of five years. It was on 1-4-53, that the Manpower and Employment Depart--ment was placed on a permanent footing. This gave rise to a claim to the managerial staff to be confirmed in their appointments. It was, therefore, considered necessary to fix the necessity of the managerial staff in the first instance. The seniority was provisionally fixed in the various grades in memo. dated 2nd dune 1951 on the following principles
(i) The seniority of individual officers be fixed in the respec--tive grades of their initial appointment for which they were recruited through F. P. S. C. (India).
(ii) Since the selection of officers in the various grades was made in several batches, at intervals, the relative seniority of officers among themselves in respective. batches to follow chronologically the -groups in which the officers were selected by the F. P. S. C., and within each group the seniority be allotted according to the gradation given by F. P. S. C. to each officer i.e., the number of marks allotted to them or the order of merit in which they were placed.
(iii) Where officers recommended by the Commission in different groups were selected for appointment in the same batch, but their combined seniority inter se taking different groups into account was not fixed by the Commission it was to be fixed on the basis of number of marks allotted to each officer: in the batch, and where the number of marks are the same. an officer older in age be placed higher.
(iv) Under the modified principle all such officers who were selected in an earlier batch and who due to circumstances beyond their control could not receive training in the batch for which they were selected and were consequently trained in subsequent batches will retain the original position in seniority awarded to them by the F. P. S. C. in the batch with which they were selected.
5. (This para. (Para.2 (c) ofMemo. No. EE (A)-29 (1) dated 2-6-1951) was modified in consultation with the Estab--lishment Division vide Memo. No. EE (A)-29 (1), dated 16-9-1953).
6. On the issue of provisional seniority list Mr. Ghulam Hussain appellant made a representation against his ranking at No. 7 in the provisional seniority list, and claimed a higher position mainly by virtue of greater length of service is the Army and by his holding a pension able post; making the appellant senior in the Army as against some of the officers who were assigned higher position than him, though they were holding non-pension --able posts in the Army. The representation was not accepted. Other officers of the managerial staff also represented against the provisional seniority list. As a result of examination of all the representations, the provisional seniority list contained in Memo. Dated. 2-6-1951 was modified and the final seniority list of the managerial staff was drawn up and. circulated with Memo. dated 16th September 1953. In the final seniority list, Mr. Ghulam Hussain, appellant, was assigned 11th position in the grade of Assistant Manager Grade Il, but Mr. Ghulam Mustafa (Mr. M. A. Syed) was assigned 8th position instead of-18th. Mr. Ghulam.
7. Hussain appellant again represented against the final seniority list on 3-3-1962, challenging the very principle, on which seniority was determined. His, representation was not accepted and the decision was conveyed to him on 4-4-1970.
8. The Government of West Pakistan issued seniority list of class II officers of Employment Exchange Wing of Lahore Directorate as on 1st November 1969 in 1970.
9. Mr. M. A. Syed, respondent No. 4, raises a preliminary objection that this appeal is not competent before this Tribunal, on the ground that the decision, which is now impugned by the appellant is that of the Central Government, which does not fall within the definition of the competent authority or the Govern--ment of the Punjab and thus an appeal under section 3 of the Ordinance does not lie. It has been conceded that the services of the appellant and respondent-No. 4 have been transferred to the West Pakistan Government from 1962 with the transfer of subjects from the Central Government' to the Provincial Gov--ernment's legislative competence; but it has been contended that as the legal and constitutional rights of the transferees were protected, these rights cannot be-affected subsequently by any order of this Tribunal, Thirdly we are referred to the decision of the Central Government, dated 19th November 1962, which provides that the revised seniorities which may be fixed according to the principles above stated, shall have prospective effect in the seniority list, and that all promotions/confirmations already made on the basis of that seniority shall not be disturbed. It is argued that as respondent. No. 4 was confirmed from 10-3- 1955, and promoted as Regional Manager from 15-10-1962, no order can be made, which affects his position as such or pro--motion. Fourthly, it is contended that the claim is time-- barred because this appeal is directed against a decision taken in 1953.
10. On behalf of the appellant, we are referred to the seniority list issued by the Provincial Government in the Labour Depart--ment published in 1970 as on 1-11-1969 and it is urged that this is a list published under section 3 (1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969 and that an appeal lies to this Tribunal under section 4 (1). The reply of respondent No. 4 to this contention is that this list, being based on the 1953 decision of the Central Government, does not give rise to a right of appeal to the appellant. Section 3 (1) directs the competent authority shall prepare and notify in the Gazette, A list of seniority of Government Servants under its administrative control. Such a seniority list was published by the Provincial Government in 1970, and a right of appeal is conferred by then Ordinance against the ranking, and the fixation of the appellant's seniority in that list. Aright of appeal accrues to the appellant within three mouths, but it is not contended on behalf of the respondent No. 4 that this appeal is not within time. It is further argued on behalf of the respondent that the Central Government does not fall under the definition of "competent authority", which is defined as appointing authority or such other authority as has been delegated the powers to make decisions regarding seniority of a Government servant under the relevant rules. The seniority list issued as on 1st November 1969, has been notified by the competent authority as defined in section 2 (a) of the Ordinance; though it may have followed or been based on an earlier decision of the Central Government as to seniority. We therefore, hold that this appeal is competent under section 4 (1) of the Ordinance. The seniority list published in 1970 gives rise to aright of appeal arid this Tribunal is competent to adjudicate on it. There is no question of any legal rights being adversely, affected. This Tribunal is empowered to decide the appeal on its merits. The intention of the decision of the Central Government 4ated 19th November 1962 is not to take away nor can affect legal rights available to the appellant under section 4 of the Ordinance. The question of affecting promotion, or confirmation by us does not arise.
11. The policy decision of the Establishment Division, accord--ing to which respective seniority, of the parties had to be determined has been stated above. The rule is that where officers recommended by the Commission were selected for appointment to the same batch, as the appellant and respondent No. 4 were, their seniority inter se not having been fixed by the Commission, had to be decided on the basis of number of marks allotted to them by the Commission, and where the number of marks were the same, an officer older in age had to be placed senior. In order to determine whether they were selected in the same batch, what marks the parties obtained and their ages, we sent for the relevant file from the Government of Pakistan, Ministry of Health, Labour and Family Planning, Department of Manpower and Employment, from which we find that the appellant and respondent No. 4 obtained 275 marks each before the Federal Public Service Commission, and were selected in the 6th batch. This being the case, their respective seniority has to be determined according to age. The date of birth of the appellant being 17-3-1917 and that of respondent No. 4 being 11-3-1918 the appellant bad to rank senior to respondent No. 4. In actual fact, the appellant was placed senior to respondent No. 4 in the provisional seniority list, but was later reduced in seniority and the' position of respondent No. 4 was raised from 18th to 8th. We have seen the basis on which this was done and find that his position was raised on, the ground that he did not join duty for reasons beyond his control. Accepting that to be the case, the seniority of the appellant was not affected, because as indicated already, the number of marks obtained by them being the same, the older of the .two had to rank senior, because they were selected in the same batch. We find that in a similar case, one Mr. Syed was held to be senior to Mr. Ismail on ground of age, but surprisingly the case of the appellant and respondent No. 4 was wrongly decided. Mr. Ghulam Mustafa referred us to remarks in ink against the typed note in the file, which fixed seniority of the parties as well as others. In the remarks it is stated that persons at serial Nos. 8, 9 and 10 (Mr. Ghulam Mustafa being at No. 8) seniority was fixed by F. P. S. C. and that seniority of those at Nos. 7, 9, 10, 11: and 13 (Mr. Ghulam Hussain appellant being at No. 11) was fixed by Government of India.
12. That being the case, and the seniority in the provincial seniority list being that the appellant ranked senior to respondent No. 4; the inference would be adverse to respondent No. _ 4 and not in his favour. There is no authenticity attached to the remarks as they are in ink and are not signed by any officer, If the Federal Public Service Commission had fixed any seniority the Commission would have fixed seniority for the whole batch and not for a part of the batch. If the commission fixed seniority of the 6th batch, all the members of the 6th batch including the appellant should have found mention in the list, which is not the case. The appellant does not figure amongst the persons whose seniority was fixed by the Public Service Commission. In these circumstances, we have to fall back on the rule of seniority as laid down by the department and the Establishment Division and decide inter se seniority of the appellant qua respondent No. 4 on the basis of their respective ages.
13. For the reasons stated above, we declare Mr. Ghulam Hussain appellant senior to Mr. M. A. Syed, respondent No. 4. We accept his appeal, but leave the parties to bear their own costs.