1. S. A. MAHMOOD (CHAIRMAN).-This is an appeal filed by Khadim Ali Shah, Muhammad Hanif Khalid, Tasadduq Hussain and Muhammad Sadiq under section 4 of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, in which they pray for relief against being shown junior to respondents Nos. 2 to 9 in seniority lists 'A' and 'B' issued on 9th June 1967 and 28th March 1969. The appellants further pray that the impugned order assigning to the respondents Nos. 2 to 9 dates of the seniority even earlier than their dates of joining the service may be set aside, and it be ordered that their dates of confirmation and seniority be fixed in accordance with their date of substantive appointment and entry into each particular grade.
2. Khadim Ali Shah, Muhammad Hanif Khalid, Tasadduq Hussain and Muhammad Sadiq appellants were promoted from Grade I to Grade II on 15-5-1957, 1-9-1957, 4-6-1957 and 22-9-1959. On 23rd December 1966. They were respectively confirmed in Grade II w.e.f. 5-5-1965, 15-7-1965, 2-8-1965 and 21-12-1966. They were further promoted to Grade III on 1-4-1961, 1-4-1961, 1-7-1961 and 8-11-1961.
3. They were confirmed in Grade III on 28th March 1969 w.e.f. 17-5-1968, 17-5-1968, 3-7-1968 and 15-12- 1968. It should be borne in mind that when they were promoted to Grade II, respondents Nos. 2 to 9 had not yet entered service as direct recruits in Grade II.
4. Muhammad Siddique, Muhammad Zarif Malik, Muhammad Nazir, Muhammad Nawaz, Bashir Ahmed Shahid, Ghulam Nabi, Abdul Latif and Hanif Ahmed respondents Nos. 2 to 9 were directly recruited in Grade II on 1-2-1965, 21-2-1966, 3-3-1966, 14-3-1966, 2-3-1966, 23-2-1966 1-3-1966 and 1-3-1966 respectively. On 19-6-1967, they were respectively confirmed w.e.f. 1-4-1954, 21-7-1960, 21- 7-1960, 21-7-1960, 21-7-1960, 1-6-1962, 8-7-1962 and 4-3-1963. Thus they were confirmed in Grade II from dates earlier than the dates of confirmation of the appellants and from dates many years before they actually joined service. They were further promoted to Grade III on 26-7-1966, 6-12-1967, 3-7-1967, 1-3-1968, 5-3-1968, 5-3-1968, 5-3-1968 and 28-11-1966. They were all confirmed on 28th March 1969 w.e.f. 28th November 1966.
5. Our attention has been drawn to Article 11 of section 4 of the Advance Chapter No. 1, which provides as follows :-- "Promotions will be made on 12 months probation. Confirmation will be made from the date, on which an individual started working against a permanent vacancy subject to the provision that he completes satisfactorily the probationary period before such confirmation is considered."
6. It is argued on the basis of the above rule that confirmation can only be made from a date, on which an individual started working against a permanent vacancy, subject to his having completed the period of probation satisfactorily before confirma--tion is considered. It is urged that as this rule only permits of confirmation of an employee from the date from which he enters the service of P. W. R., the confirmation of the respondents Nos. 2 to 9 made from earlier dates are contrary to the rule.
7. In the above connection, our attention was also drawn to the following observations of the learned Judges of the Supreme Court in the case of Railway employees reported as Khushi Mohd. and 3 others v. The General Manager (Now Vice Chairman) Pakistan Western Railway Headquarters Office, Lahore and others (PLD 1970 SC 203)
8. "1n fact, it is wholly against all notions of natural justice that persons, who joined service in Grade I should be put in a junior position a3 against those, who joined later, merely because they filled vacancies, which were deemed to be reserved for them. In our view, the ratio of 50 : 50 (in this case 80:20) between the direct recruits and the departmental Promotees merely relates to the policy of their recruitment to the grade and is not to be extended to the fixation of their seniority or their confirmation inter se. All incumbents have to be treated at par in the matter of their seniority in the Grade after they entered it. There is no rule that confirmation in the Grade is also to be made by rotation i.e., to say one direct recruit and one departmental promotee have to be alternatively confirmed."
9. The above observations are fully applicable to the facts of this case. The ratio of 80:20 is not relevant for purpose of fixation of seniority, seniority being normally dependent on the date of entry into service. In the case of P. W. R. seniority has to be determined on the basis of confirmation and dates of confir--mation of the parties have beet fixed with a view to determine seniority. But in fixing these dates, dates have been assigned much earlier than entry into service of respondents Nos. 2 to 9, which could not be done. What we have stated above is relevant to the dates of confirmation of respondent& 2 to 9 in Grade II.
10. We may mention that the Railway Board has also conveyed in its letter No. E-67 P. M. 2/18-II, dated the 26th June 1970 it decision to adopt the principle of reckoning seniority of direct recruits vis-a- vis promotees from the date of their substantive appointment. Thus the above principle has been accepted by the Railway Board though with prospective effect. According to Rule 11 of section 4 of Advance Chapter No. I, which is an, existing rule, confirmations have to be made from the date of appointment. For the reasons stated above, we direct that the dates of confirmation of the appellants and respondents Nos. 2-9 in Grade II be re determined and re fixed in accordance with the principles enunciated by the Supreme Court and stated above. The new dates of confirmation of appellants and respondents determined by the Department will determine their inter se seniority.
11. In Grade III, the appellants as well as respondents Nos. 2 to 9 are both promotees, and their basic seniority in Grade II should normally be maintained in Grade III, unless other relevant factors necessitate a super session. In Grade III, also the date; of confirmation of the appellants and respondents should be re fixed keeping in view their basic seniority in Grade II now to be determined by the Department in order not to disturb their inter se seniority unless otherwise necessary.
12. The learned counsel for the appellant raised 4 preliminary objection in this case that in view of the dissolution of the Province of West Pakistan and the enactment of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, which came into force on 27th October 1970, the employees of the P. W. R., though posted at places within the jurisdiction of the Punjab Province, were not left with a right of appeal, and an appeal in--stituted under the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969 could not be continued, heard and decided by this Tribunal in the changed circumstances. This appeal having been instituted on 29th July 1970, the rights of appeal as attaching to the appeal op that day will continue to apply until it is finally decided, unless there be an express provision to the contrary. It was so laid down by the Privy Council in the Colonial Sugar Refining Company Limited v. Irving (1905 AC 396) and A 1 R 1923 P C 148. These cases have been followed by our Courts: one of these cases is a Full Bench case reported as T L D 1964 Pesh.250. Our Supreme Court took a similar view in PLD 1964 SC 865, and other cases.
13. On the day, the appeal was instituted, sections 4 and 7 of the West Pakistan Civil Services (Appellate Tribunals) Ordinance (XVIII of 1969) gave a right of appeal against fixation of seniority to a Government Servant as defined in its S. 2(c). A Government Servant was defined as follows :-- "2 (c). ---Government servant--- means a person serving in connection with the affairs of the Province of West Pakistan (not being a member of an All Pakistan Service or of a Civil Service of the Centre)."
14. On the day of institution of the appeal, the appellant was not serving in connection with the affairs of the Province of the West Pakistan, but the Article 19 of the Dissolution Order gave power of adaptation and by necessary adaptation and Article 17(i) of the Dissolution Order, the appellant would be deemed to be a Government Servant, serving in connection with the affairs of the new Punjab Province, notwithstanding that no actual adapta--tion had been made, as the Tribunal was authorised to construe the law with all such adaptations, as may be necessary to brine it in accord with the provisions of the Order. When clause (i) of Article 17 of the Dissolution Order further provided that every person not being a member of All Pakistan Service, or a civil service of the Centre, who immediately before the appointed day was in the service of Pakistan in connection with the affairs of the Province of West Pakistan, at whatever place he may, for the time being, be serving, shall be deemed to be serving in connection with the affairs of the new Province, in which such place is situate, the inference is irresistible that the parties to this case have to be deemed to be serving in connection with the affairs of the Province of the Punjab because they were posted at Lahore, which lies within the Punjab Province. Therefore, by operation of law, the parties had to be deemed to be serving in connection with the affairs of the new Province of Punjab, in which this Tribunal as reconstituted as a Punjab Tribunal, has jurisdiction. On the day, on which this appeal was filed, the Tribunal, as constituted, under Article 19(3) of the Dissolution Order was continued as a West Pakistan Tribunal. Our jurisdiction over West Pakistan was continued by the Dissolution Order, and it was on the 5th August 1970 that we were sworn in as a Punjab Tribunal having jurisdiction within the limits of the new Punjab Province only and were notified -as a Punjab Tribunal w.e.f. 1st July 1970, though this Notification could not have retrospec--tive effect.
15. On the day, on which this appeal was heard, the Punjab Civil Services (Appellate Tribunals)
16. Ordinance (IV of 1970) had come into force w.e.f. 27th October 1970. Its section 14(3) provided that all appeals pending with the West Pakistan Civil Services (Appellate) Tribunal, the appeals of Government Servants within the meaning of clause (c) of section 2 shall be deemed to have been preferred under section 8 of this Ordinance. It was argued that the intention-of Ordinance IV of 1970 was to restrict the scope and meaning of Government Servant as defined in clause (c) of section 2 of the Ordinance. This contention is, however, misconceived as will appear from the definition of Government Servant in clause (c) of section 2 of Ordinance IV of 1970. Instead of restricting the meaning of Government servant, the scope and meaning of Government Servant has in our view been enlarged to include a person, who is a member of Civil Service of the Province, or holds a civil post in connection with the affairs of the Province of Punjab or is an employee of the Government of the Punjab, whose services have been placed, for the time being, at the disposal of any other Government or Authority.
17. On behalf of the P. W. R. it has been argued that the appellant does not fall within the definition of Government servant, because he is not now serving in connection with the affairs of any one province, but of all the provinces, which, therefore, takes him out of the purview of the definition of clause (c) of section 2 and deprives him of a right of appeal against an order of seniority. We are not inclined to accept this contention, because under sub-clause (ii) of clause (c) of section 2 all that is necessary is; the holding a civil post, in connection with the affairs of the Province of the Punjab. There is no dispute that the parties hold civil posts. The only contention raised on behalf of the P. W. R. is that they are not serving exclusively in connection with the affairs of the Province of the Punjab. The matter is rendered beyond doubt by clause (iii) of Article 7 of President---s Order No. 1 of 1970, which provides that all employees of the Government of West Pakistan engaged for the purposes of P. W. R. and serving immediately before the appointed day, shall as from that day, be deemed to be employees of the President serving, however, in connection with the affairs of the new provinces. It should be noted that particular care has been taken to state that persons engaged for the purposes of P. W. R. shall be deemed to be serving in connection with the affairs of the new provinces, though they are to be deemed as employees of the President. Thus particular care has been taken to emphasise that such persons continue to be employees in connection with the affairs of the new provinces and sub-article (i) of Article 17. makes it clear beyond any doubt that a person shall be deemed to be serving in connection with the affairs of that new province, in which his place of posting falls. Thus by operation of this Article, the parties have to be deemed to be serving in connection with the affairs of the new province of the Punjab. Thus this Tribunal has jurisdiction to entertain this appeal, which was filed before the Tribunal, under section 14(3) of Ordinance IV of 1970, and there is no force in the preliminary objection raised on behalf of the P. W.
18. R.
19. For reasons stated above, we accept this appeal as V indicated above and direct that the seniority of the parties shall be determined as indicated above.