S. HAFIZUR REHMAN (MEMBER).-The appellant, Sh. Muhammad Manzoor Elahi, Assistant in the o lice of the Additional I. G. Of Police, impugns, through this appeal, the orders dated 10th June, 1972 and 13th July 1980 whereby his claim to having been appointed on 25th July, 1943 as Junior Clerk against a War Reserved Vacancy was rejected as also his consequent claim to be declared senior to respondents Nos. 4 to 33. The order dated 10th June, 1972 was made by the Additional I. G. P.
While the representation to Government (Home Secretary) was turned down on 13th July, 1980.
2. The matter, aridly stated, is as follows. The appellant joined service as Junior Clerk in the office of I. G. Police, Punjab, on 12th April, 1948. Before that he had put in War Service extending to 4 years 8 months and 17 days. Persons with War Service were entitled to various benefits towards age, increments, pension and seniority under the Punjab Government Services (War) Amendment Rules,' 1943'. The appellant was given benefits of age and increments but was not given seniority.
For the purpose of the said War Service Rules the assumed date of his appointment was worked out by the Department as 25th July, 1943. The appellant applied for benefit of seniority as well through various representations. However, by order dated 10th June;1972 the Competent Authority, i,e, the Additional I. G. Police, Punjab, rejected his representation on the ground that he had not been appointed as Junior Clerk against a War Reserved Vacancy. He represented to the I. G. Police and also sought an interview which was granted 'to him. On hearing the appellant the I. G. Police passed the following interim order "He is present in my office and has pointed out that according to his information there had been as many as 43 vacancies/posts. Registrar has been asked to examine this point and put up."
' Thereafter the appellant had been submitting representations to Respondent No, 2 for decision giving details of the War Reserved Vacancies which became available in the said office during the relevant period viz. 18th September, 1943 to 31st December, 1945, with reference to the Police Gazettes. Ultimately the I. G. Police referred his case to the Home Secretary who turned down the claim by letter dated 25th August, 1980 on the ground that the appellant was not appointed against a post reserved for ex-servicemen. Hence this appeal before us.
3. The parties were heard and the record sent for and examined. It was contended by learned counsel on behalf of the appellant that the appellant had, in the first instance, made out a case before the Department that there were 43 War Service vacancies, but subsequently he was able to dig out as many as 57 vacancies. He gave minute details of the vacancies by way of the names of persons appointed against those vamcies, alongwith the numbers and dates of the Notifications of their appointments against those vacancies. He has also given relevant extract from the Police Gazettes in question to support the facts and figures. It is clear from his representations that he placed these facts and figures before the respondent Department as well. In response thereto Respondents Nos. 1 to 3 have stated that the 57 vacancies enumerated by the appellant were of temporary or resultant nature. This means that the existence of the said 57 vacancies is duly admitted by the Department for the first time. However, the only objection of the Department is that "these were of temporary or resultant nature". The learned counsel averred in this connection that in view of the clarification made by the Government on 16th January, 1968 in the above-quoted instructions, that the nature of the vacancy is immaterial, there was no substance whatsoever in the Department's objection. In any case, War Service benefits were given to only one official, namely Muhammad Ibrahim of the Department, and none of the other vacancies were utilized by the Department. Therefore, for the purposes of the appellant it was even sufficient if there were only two vacancies. At least 15 vacancies have now been conceded by the Department in the Written Statement. It has not been controverted by the Department that all the vacancies were filled by non-War service candidates, and not by War-service candidates, or that War-services concession of seniority under the 1943 Rules has given to any War-service candidates except to Muhammad Ibrahim. Finally the case of Manzur Hussain Jafri v. Secretary Education (1) was cited by learned counsel as precedent. This judgment of the Punjab Service Tribunal was itself based on a decision of the Supreme Court which had held that the 1949 letter of the Government about War Service benefit to be granted only where War Reserved Vacancies existed could not overrule or contravene the statutory rules of 1943.
4. On the other hand, the learned District Attorney has contended that no War Reserved Vacancy existed against which the appellant could be appointed and as such there was no question of grant of the concession asked for to the appellant. He stated that the temporary posts created in the clerical cadre of the Police during the period for which rule 3 of the 1943 War Services Rules remained in force, were abolished w. e. f. 1st April, 1946, whereas the appellant was appointed on a date after this, i,e, 12th April, 1948. The learned D. A. Also argued that the appellant's contention about a war Reserved Vacancy having been given to only one person was only correct in the context of the pre-Independence time when non-Muslims were also here. This point was, however, answered by learned counsel for the appellant by stating that 15 vacancies admitted by the respondents related to the post-Independence period.
5. The basic questions of fact involved in the present case are whether there occurred any War- Reserved Vacancies in the office of I. G. Police during the period from 18th September, 1943 to 1st January, 1946 and if so how many.
(ii) If the reply to question No, 1 is in the affirmative, then whether such vacancies were exhausted or any of these was available for the appellant.
6. Before resolving these factual issues it would be useful to quote from the Government instructions dated 16th January, 1958 printed at Page 795 of the Establishment Manual Vol, II (Revised) which define the term "War Reserved Vacancy".
' The matter has been examined and the Government have come to the conclusion that these War-Service candidates who were appointed to a vacancy which occurred during this period, have to be given the benefit of seniority on account of War Service. {{FOOT NOTE}}
(1) 1981 PLC (C S) 422 {{FOOT NOTE}} irrespective of the fact whether it was a temporary or permanent vacancy. The nature of the vacancy is not the determining factor: the only ' relevant point is that the vacancy occurred during the period 18th September, 1943 to 1st January, 1916......."
These instructions, which have the force of Rules, make it clear that any vacancy which occurred during the period in question is a War-Reserved Vacancy, irrespective of its nature or duration. The next question is whether any vacancy was available to which the appellant could lay a claim.
7. The 57 vacancies pointed out by the appellant, both in his representation to the Department and the Government and in his appeal before us have not been specifically denied as such ; only it has been said in the written statement that : -- "A checkup of the notification has revealed that the vacancies enumerated by the appellant were of temporary or resultant nature. None of the notification shows as to when the aforesaid vacancies originally occurred/created. It is thus not possible for this office to accept the claim of the appellant at this belated stage."
This shows that the existence of the 57 was not actually denied. It was further stated by the respondents that the temporary posts created in the Police Clerical Cadre during the period for which rule 3 of the 1943 Rules remained in force, were abolished with effect from 1st June, 1946. Here the respondents have confused posts with vacancies. These temporary posts have to be different from the said 57 vacancies. There is an obvious distinction between post and vacancy because there can be many vacancies over a period of time against one and the same post. For example, if there is one post and the incumbent resigns a vacancy occurs. Another vacancy of the same post may occur if and when the next incumbent retires or dies or vacates the post otherwise.
Accordingly even if some temporary posts were abolished in the Department it does not necessarily follow that there were no vacancies, so long as the fact is not denied that there occurred 57 vacancies in this cadre.
8. The upshot of the above discussion is that we declare that the appellant is deemed to have been appointed as Junior Clerk w. e. f. 12th April, 1948 against a War Reserved Vacancy for the purpose of seniority under Rule 6 of the War Service Rules, 1943 from the assumed date of his appointment as such, viz. 25th August, 1943 worked out by Respondents Nos. 1 and 2. We also accept the claim of the appellant that he is entitled to proforma promotions as Senior Clerk, Assistant and as Superintendent on the basis of his improved seniority as Junior Clerk. We have already conceded such a claim in the case of Manzur Hussain Jafari v. Secretary Education, cited on behalf of the appellant.
9. Consequently the appeal is accepted in terms of paragraph 8 above. There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.