1. S. A. MAHMOOD (CHAIRMAN).-By this appeal under section 4(1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, Mr. Kamal Mustafa, Superintending Engineer, Punjab Public Engineering Department, now on deputa--tion to Saudi Arabia Government Ministry of Agri. & Water, Riyadh, seeks the following reliefs:-
(i) That the impugned orders promoting appellant's juniors to P. S. E. Class II during his suspension period be set aside' and the appellant be deemed to have been promoted prior, to all those Engineers junior to him, and that the wrong done to the appellant during his suspension period should be redressed and his seniority, as it stood before his suspension in 1952, and as shown in the Civil List, of 1953, should be restored.
(ii) That the appellant be confirmed in the West Pakistan Service of Civil Engineers (B & R) Class II against pre-Integra--tion vacancies since he has been promoted to Class I w. e. f. 16-11-47 by Notification dated 14-7-1969.
(iii) That the appellant's claim to the above relief is further established by the fact that he was promoted to Class II (Junior) along with his seniors Messrs Manzoor Abbas Akbar and Muhammad Rashid Vehra and his juniors, including Messrs Muhammad Fazil Qureshi, Muhammad Shafique Qureshi and others.
(iv) That in the event of grant of prayer No. 1, he may be deemed to have been promoted as Executive Engineer immediately after Mr. Muhammad Rashid Vehra at item No. 49 of the, Provincial Integrated Seniority List of Superintending Engineers/Executive Engineers of B & R Department.
(v) That in consequence, the appellant be deemed to be promoted as S. E. prior to all the persons junior to him, and that his present seniority in the Department should be correctly shown 3 of in the list of Superintending Engineers published under section of West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, and that he should be shown as senior to Mr. Mazharul Haq.
(vi) That the appellant's name be shown immediately after the name of Mr. Muhammad Rashid Vehra at item No. 40 in the Provincial Integrated Seniority List of 29th October 196) of Superintending Engineers promoted after Integration on West Pakistan basis published by the West Pakistan Communication & Works Department.
(vii) That in the Public Health Engineering Department, the appellant should be placed senior to Mr. Muhammad Fazil Qureshi, and Mr. Muhammad Shafique Qureshi according to his present seniority, established by his promotion to Class II and Class I (Buildings & Roads) Services of Engineers.
2. The seniority in dispute is in all ranks.
3. Mr. Kamal Mustafa, appellant, was represented by Mr. Said Akhtar, Advocate. Respondents 1 and 2 were not represented by counsel, but Mr. Gill, Section Officer, appeared for the Communication and Works Department. Mr. Muhammad Fazil Qureshi respondent No. 3 was represented by Mr. Khalid Farooq, Advocate. Mr. Muhammad Shafique Qureshi and Mr. Mazharul Haq, respondents 4 and 5 were present in person. They argued their own cases.
4. The appellant and respondents Nos. 3 to 5 were recruited as Temporary Assistant Engineers in the B & R Department of the Punjab Government on 18-11-47, 12-7-48, 23-7-1948 and 24-2-1950, respectively. Mr. Muhammad Fazil Qureshi and Mr. Muhammad Shafique Qureshi, respondents Nos.
5. 3 and 4 were both recruited as Temporary Assistant Engineers in the Public Health Engineering Circle under the B & R Department. Thus the date of recruitment of the appellant as Temporary Assistant Engineer is earlier than the date of appointment of respondents 3 and 5. To establish his seniority over them, the appellant has drawn our attention to the gradation list (Appendix 12) as on 1-1-53, in which the appellant was shown at No. 11, Mr. Muhammad Fazil Qureshi at No. 15, Mr. Muhammad Shafique Qureshi at No. 16 and Mr. Mazharul Haq very much lower down. In the gradation list as on 1-1-1955, the appellant was shown at No. 7, Mr. Muhammad Fazil Qureshi at No. 10, Mr. Muhammad Shafique Qureshi at No. 11 and Mr. Mansharul Haq at No. 27. It may, however, be mentioned that appointment as Temporary Assistant Engineers, which had to be made through the Public Service Commission was not an appointment to any Service. Temporary Assistant Engineers when Appointed were eligible for appointment to P. S. E. Class II, and before 1967 there were no rules applicable to them, by which their seniority could be fixed or determined.
6. On 1-6-1955, Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi were appointed to Class II service w.e.f. 24th July 1954 in supersession of the appellant, who was under suspension at the time. The relevant file shows that their promotion was made in supersession of the appellant.
7. They were placed on probation w.e.f. 24-7-1954 by order dated 1-6-55. They both have been confirmed from 24.7-54 as appears from gradation list corrected up to 31-3-1961. Mr. Muhammad Shafique Qureshi was confirmed w.e.f. 24-7-54 by order dated 15-9-59. When the West Pakistan Service of Civil Engineers (B & R) (Class II) Rules, came into force, with a view to absorb Temporary Engineer in regular service, the notification dated 29th September 1965, but their date of appointment was not changed. On 14th July f969, when the appointment of the appellant to Class II was notified, his appointment was ordered from 10th November 1947. Therefore though the appointment of Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi to Class II was made in supersession of the appellant, the appellant was assigned an earlier date of promotion by a subsequent notification. This notification stated that for the purpose of seniority he was confirmed against a pre-1963 vacancy and would count his inter se seniority w.e.f. 18-11-47. Mr. Mazharul Haq was appointed temporarily to Class II by notifica--tion dated 20th February 1968. He was appointed and confirmed as Assistant Engineer in Class II w.e.f. 24th February 1950 by notification dated 25th March 1969.
8. It is 'in this background that the seniority of the parties has to be determined in Class II. It may be mentioned fn this connection that there were no notified rules applicable to Class II Service in B & R Department but the draft rules were being utilised by the B & R Department for fixation of seniority though they had no legal force. According to the advice, however, of the S. & G.A.D. contained in para. 209 of file No. E-110/34/59, seniority in Class II was to be determined in accordance with the appointment orders of officers i.e., orders by which they were either appointed directly or were promoted. Thus persons recruited in one batch were to be considered as one group for purposes of determining their seniority and their, seniority was to be determined in accordance with P. S. E.
9. Class II Draft Rules, which laid down that the direct recruits taken in a year were to be shown senior to promotees. While fixing inter se seniority of the officers promoted from temporary Assistant Engineers and those promoted from Overseers, the former were to rank senior to the latter. The inter se seniority of the promotees, as it obtained before their promotion, was not to be disturbed and in cases where a senior, for some reasons, was promoted after his junior, his original seniority had to be, restored in the higher grade. This applied to the cases of Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi, who were appointed to Class II service w.e.f. 24-7-1954.
10. In the case of the appellant vie-a-vie Mr. Mazharul Haq, seniority in Class II had to be determined under the 1957-Rules, since their appointment to Class II was notified under these Rules. Mr. Mazharul Haq concedes that he was junior in Class It to the appellant on the basis of date of continuous appointment as provided in these Rules. But there is no specific rule provided for fixation of inter se seniority of Messrs Muhammad Fazil Qureshi and Muhammad Shafiq Qureshi vis- a-vis the appellant, and we will revert to this question later.
11. On behalf of the respondents, it has beets urged that as the appellant was appointed to a pre-1963 vacancy, he could not be assigned a vacancy from a date prior to the date of Integration; and secondly that since Mr. Muhammad Fazil Qureshi and Mr. Muhammad Shafique Qureshi superseded him in 1955. He could not be assigned a date or appointment to Class II earlier than them, or they should have been assigned an earlier date of appointment. On behalf of the appellant, our attention has been drawn to sub-rule (3) of rule 8 of the West Pakistan Service of Civil Engineers (B & R) (Class II) Rules, 1967, which provides that a temporary Engineer appointed to a post, in the cadre under the provisions of this rule, shall count his seniority from the date of his continuous appointment as temporary engineer and for the purpose of sub-rule (2), he should be deemed to have been appointed to the cadre w.e.f. the date of his continuous appointment as temporary engineer. On this basis, it is vehemently urged that he is entitled by statute to count his seniority and membership of the Class II cadre from the date of appointment as temporary engineer, and this date could only be altered or changed by the Provincial Government under the proviso to sub-rule (3), which enables the Government to fix a later date in consultation with the public service commission for any sufficient reason, but action has not so far been taken under this proviso. Therefore, as it is the appellant is entitled to count his seniority and date of continuous appointment from 18-11-1947.
12. It is anamolous that though Mr. Muhammad Fazil Qureshi and Mr. Muhammad Shafique Qureshi superseded the appellant in 1955 in being appointed to Class II Service, the appellant has an earlier date of appointment to the Service than Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi, whose date of appointment is 24-7-51, and thus a claim to higher seniority. Even the date of appointment to Class II of Mr. Mazharul Haq, respondent No. 5, viz. 24-2-1950, is earlier.
13. Thus both the appellant and Mr. Mazharul Haq claim their seniority from earlier dates. We, therefore, consider that this was a suitably case for the Government to have take action for assigning a later date under the proviso to sub-rule (3) of rule 8 of the West Pakistan Service of Civil Engineers (B R) (Class II) Rules, 1967 in consultation with the Public Service Commission, or for assigning earlier dates to Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi.
14. It seems to us that the basic seniority of the parties in Class II as Assistant Engineer is important, because it has a bearing on seniority in other higher ranks also, since there is no clear evidence of supersession by any officer in the higher rank. Since Mr. Mazharul Haq and the appellant were appointed to class II from 18-11-1947, and 24-2-50 respectively under the 1967-Rules, these dates serve as dates of their seniority. Mr. Mazharul Haq has conceded that in Class II, the appellant is senior to him.
15. In respect of seniority of the appellant vie-a-vie Mr. Muhammad Fazil Qureshi and Muhammad Shafique Qureshi, though the assigned date of seniority of the appellant is earlier, being 18-11-47, and the date of appointment of Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi being 24-7-1954, is later, we consider Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi to be senior to the appellant in Class II. Our reasons for holding so are that when Messes Muhammad Fazil Qureshi and Muhammad Shafique Qureshi were appointed to Class It on 1-6-55 and 29-6-55, they superseded the appellant, who was not considered suitable for appointment to Class II. They were all Temporary Assistant Engineers, when Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi were selected and preferred for appointment to Class II, and the appellant remained a Temporary Assistant Engineer, as he was not considered suitable for appointment to Class II. While Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi became members of Class II Service from 1-6-55, the appellant was appointed to Class II Service on 14-7-69, i.e., nearly 14 years later. Whereas Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi automatically became members of the Service under rule 4(1)(a) of the West Pakistan Service of Civil Engineers (Buildings and Roads) (Class II) Rules, 1967, the appellant was absorbed as a member under rule 4(1)(b), having been appointed under rule 8.
16. Messrs Muhammad Fazil Qureshi and Muhammad 8hafique Qureshi were all persons, who immediately before the constitution of the service were holding substantively the posts included in the cadre of the service, while the appellant was one of those who were appointed to the Service under these Rules, either under rule 7, 8 or 9. We consider that the existing members of the Service must, on general principles, be treated as senior to those, who became members of the service after the enforce--ment of the Rules. There is no specific rule applicable, white determines inter se seniority of existing members of the service vie-a-vie those appointed to the-service under the rules. The date of actual appointment must in the circumstances of this case be taken as a basis for seniority. When this fact is coupled with the fact that the appellant was superseded by MessrsMuhammad Fazil Qureshi and Muhammad Shafique Qureshi in being appointed to Class II Service, there can be little doubt that the latter must be treated senior to the appellant. We are holding them to be senior to the appellant in Class II and is order to remove all doubts there should refixation of the date of appointment of the appellant to Class II under the proviso to sub-rule (3). of rule 8 of the West Pakistan Service of Civil Engineers (B & R) (Class II) Rules, 1967.
17. It is not possible to determine inter se seniority of the parties in Class I (Junior) as Assistant Executive Engineer for the simple reason that the Notification appointing them has not assigned to them any date of seniority in the grade. Whereas the appellant and Mr. Mazharul Haq were promoted as Temporary Assistant Executive Engineer in Class I .(junior) by Notification dated 25th January 1969, Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi were promoted by-- Notification of 13th February 1969. It was specifically stated in the Notification that the date of promotion shall be notified later. We presume that the dates to be assigned to them will maintain their basic seniority in Class II. We have not been able to discover any material fact showing that the appellant has superseded Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi in this rank. The effect of later promotion of Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi is not their supersession by the appellant in view of the Explanation I to rule 15(2) of 1967-Rules. The fact that their promotion was notified three weeks later does not make them junior to the appellant as Assistant Executive Engineer, since there has been no supersession on comparative examination of their records. Of course, the appellant being basically senior to Mr. Mazharul Haq in Class II, he would retain his seniority in Class I (junior) when promoted by the same Notification.
18. While the appellant was appointed to Class II (senior) as officiating Executive Engineer on 28th November 1958, Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi were so promoted on 20th January 1954, and 5th December 1953 respectively. Therefore, they were promoted more than four years earlier and since they were basically senior to the appellant in Class II, they must retain their seniority over the appellant in Class I, (senior) by reason of earlier appointment to the grade of Executive Engineer. Indeed, under rule 15(2) of the 1967-Rules, they rank senior to the appellant when it provides as follows:- "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 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 the sub-rule causes or will cause hardship to one or more members of the Service, assign to the persons concerned such seniority as it considers equitable."
19. To this rule are appended three explanations. Explanation I provides that if a junior officer in a lower grade is promoted to a higher grade temporarily in the Public interest even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade.
20. Explanation II is that if a junior officer in a lower grade is promoted to a higher grade by superseding his senior officer and subsequently that officer is also promoted, the officer promoted shall rank senior to the officer promoted subsequently.
21. Explanation III is that a junior officer appointed to a higher grade shall be deemed to have superseded a senior officer if both the junior and senior officers were considered for higher grade and the junior officer was appointed in preference to the senior officer.
22. Explanation I clearly saves the seniority of Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi from being superseded. They were not superseded in the rank of Assistant Executive Engineer by reason of their promotion three weeks later than the appellant.
23. Mr. Mazharul Haq claimed before us that when he was promoted on 27-7-57, he superseded the appellant and thus became senior to him in this rank. His main contention was that he had begun to officiate from 18-7-55 and though reverted on 11-8-55, was again appointed officiating Executive Engineer and as be therefore began to officiate much earlier than the appellant, be should be considered to have superseded the appellant. We were asked to look into the official file, which it was claimed, would show that he had superseded him by a comparative examination of their records. We have seen the relevant file and found that they were both approved for promotion by the same order, and there is no supersession of the appellant by Mr. Mazharul Haq. It is true that Mr. Mazharul Haq began to officiate continuously four months earlier than the appellant, but his earlier appointment was based on grounds of clemency. The noting in the official file is to the following effect:- "Since, however, Messrs Anwarul Haq and Mazharul Haq T. A. Es., had been selected and appointed to hold charge by the former Punjab Government in 1955 in preference to their Class II officers, it was proposed that for the purposes of Officiating promotion as Executive Engineer, their position may be maintained. Although they cannot claim such a preference over Class II officers of other integrating units as a matter of right, yet on the ground of clemency that these Officers were wrongly promoted by the Chief Engineer of his own after Integration and have subsequently been reverted by Government they may be given preference."
24. This note was approved and earlier promotion order of Mr. Mazharul Haq was issued, but this does not, in our view, amount to supersession on merit of the appellant by Mr. Mazharul Haq and, therefore, the appellant does not loss his basic seniority, but maintained it despite the fact that he was promoted four months later. Thus we hold that in Class I (Senior) the appellant is senior to Mr. Mazharul Haq, but is not senior to Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi. It may be mentioned that the appellant and the three respondents have been confirmed as Executive Engineer by the same Notification dated 31-12-70, which does not assign to them any date of officiation other than the actual date of promotion.
25. As officiating Superintending Engineer, the appellant and Mr. Mazharul Haq were promoted w.e.f. 1- 8-67 while Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi were so promoted much earlier from 1-8-1964 and 4-9-64 respectively. Under rule 15(i)(b) of 1967-Rules, the date of continuous appointment being the rule of seniority Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi are senior to the appellant. They maintain their basic seniority and the appellant does not establish his seniority over them. The appellant is, however senior to Mr. Mazharul Haq, though he was promoted on the same date since the app.1lant is basically senior to Mr. Mazharul Haq.
26. For the reasons stated above, we hold the appellant to be senior to Mr. Mazharul Haq in all ranks but dismiss his claim to seniority against Messrs Muhammad Fazil Qureshi and Muhammad Shafique Qureshi, respondents. The parties will bear their own costs.