S. ABDUL JABBAR KHAN (CHAIRMAN).-M. Nawaz Makhdoom, Extra---Assistant Commissioner has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, against the order dated 21-10-1981, communicated and received. By the appellant on 24-11-1981. He has impleaded Government of the Punjab through the Chief Secretary, Government of the Punjab, Lahore and 173 respondents vide list attached as Annexure IX'.
2. By virtue of this appeal he has prayed that the appellant may be ordered to be placed at serial No. 60 of the Seniority List issued on 30th June, 1981, consequent upon his promotion to the rank of E.A.C. And all benefits and the impugned notification dated 21-10-1981, communicated on 24-11-1981, be set aside. As the respondents in this case are very large in number, therefore, publicity was mode in Daily Mashriq on 1-4-1982, in which all the respondents so impleaded were directed to appear before this Tribunal personally or through their representatives and to pursue the case so advised. On 12-4-1982, Rai Shabbir Ahmad respondent, appeared in person whereas Malik Ahmad Nawaz had already made his written state--ment available. Ex parte proceedings were ordered against all the remaining respondents who failed to appear on the said date of hearing. It was later on adjourned for arguments which were concluded on 2-6-1982, by the parties.
3. Brief facts of the case are that the appellant basically belongs to Naib-Tehsildars cadre and continued to serve as such. In 1974, fourteen res--pondents whose names appeared from 1 to 14 in the first para. Of the Noti--fication No. 2-4/72(SOPI), dated 10-7-1974, were promoted to the rank of E.A.C. Although the appellant was senior to them vide seniority list of Naib-Tehsildars of Sargodha Division as stood on 1-1-1978. It is also a fact established on the record that the appellant was definitely senior in the grade of Naib-Tehsildars to all the 14 promotees who now figure as respondents in this case. However, the appellant was considered for promotion in the next higher grade vide No. 2-1/76(SOS-VII) Vol. II, dated 9-4-1980. The promotion so made, was made effective from 6-4-1980. The appellant made a representation before the competent authority on 9-7-1980 and 1-12-1980 regarding the patent error in assigning the seniority to the appellant after he was duly promoted. Yet the representations of the appellant were still pending, the order dated 31-12- 1980 was passed hereby notification dated 9-4-1980 stood modified partially to the extent that the appellant was assigned seniority amongst the E.A.C. w.e.f. 1-8-1978 above Raja Saeed Akhtar and below Mian Saeed Akhtar. This was done as a matter of pro forma promotion in favour of the appellant. This all happened when his representation was pending before the Government.
However, he was finally told on 24-10-1981, that his representation re--garding fixation of his seniority from the date when his juniors were so promoted, stood rejected. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart--ment and also the learned counsel for the contesting respondents. Learned counsel for the appellant has submitted that notification dated 10-7-1974, reveals that 14 persons were promoted from the category of Naib--Tehsildars/Officiating Tehsildars as Extra-Assistant Commissioners and 19 people were ignored by the Governor of the Punjab for promotion to the rank of E.A.C. On account of their unsatisfactory record of service, According to the learned counsel the name of the appellant did not find mention either in the list of promotees or in the list of persons so super--seded. He has also referred to the final seniority Mist of permanent/ officiating Tehsildars/Naib-Tehsildars of Sargodha Division, as stood on 1-1-1978 and stated that the appellant is placed at Serial No. 13, while the contesting respondents and those promotees of his class in 1974, are shown junior to him. Learned counsel has further referred Annexure C on the re--cord to show that the appellant in this case was promoted as E.A.C. w.e.f. 6- 4-1980, to establish that the appellant got his promotion but the same was shown w.e.f. The year 1980. A reference has also been made by the learned counsel to the order dated 21-10-1981, by which the appellant was told that representation has been finally rejected by the Government.
Learned counsel has also placed reliance on notification dated 6-10-1981, in which Malik Khaliq Dad, E.A.C. Who was from the batch of the appel--lant, was promoted and was also conferred pro forma promotion w.e.f. 24-7-1974, the date when his junior Malik 'Muhammad Munir was promoted.
5. The main point stressed by the learned counsel for the appellant, during the course of the arguments is that it is a well-settled law with regard to the seniority matters that a person senior in lower grade would rank senior in higher grade unless he has been superseded by those who were promoted earlier to him. According to the learned counsel there is nothing on record to show that the appellant was considered alongwith 14 persons who were promoted vide notification of 10-7- 1974 as the very notification has given the names of 19 persons who were duly considered alongwith first 14 persons who were superseded. In this manner learned counsel has argued that the respondents while declining to give) the appellant his due place' of seniority, the respondent has violated' the explanation to rule 2-A of the Punjab civil Servants (Appointments and Conditions) Service Rules, 1974, and relied in this behalf on the case of Dr. Ihsanul Islam, and others v. Secretary, Education Department (1973 PLC I) as well as 1971 PLC 144 and on the case of Mohammad Ashraf Shah v. West Pakistan (PLD 1973 Lah. 42). He has also relied on the ruling of this Tribunal in case of Ch. Kabir Ahmad Khan and 64 others v. Secretary SGA&ID and 52 others by means of a supplementary representation dated 26-9-198. As for matter of precedent learned counsel has relied on the case of Malik Khaliq Dad who has been allowed pro forma promotion on 24-7-1974, vide Notification No. 2-8/81/81-SOS(IV), dated 6-10-1981, which he has claimed an identical case on all four's with the case of the appellant.
6. On the other hand learned District Attorney assisted by the representative of the Department has submitted that the selection of the said 14 persons so mentioned in the 1974 notification was made on their exceptionally brilliant and outstanding ability, therefore, the Government was fully competent to select them for the posts of E.A.C. While admitting that the said 14 persons were junior to the appellant as Niab-Tehsildars but has denied his claim on the basis that he was not found exceptionally brilliant and possessing outstanding ability, therefore, the B.O.R. Did not consider him fit for promotion and as such did not recommend his name. Mr. M. A. Riaz learned counsel has come out with an objection that the appeal of the appellant would be time-barred as he was claiming relief against a cause of action which arose in 1974 and for which no appeal was filed at the relevant time. For this he has relied on Malik Jehangir Khan etc. Mohammad Ayub Rizvi etc. Government of West Pakistan (1980 PLC (C. S.) 33) decision given by this Tribunal.
7. With regard to the merits of the case learned counsel has mostly relied on the arguments so advanced by the learned District Attorney, that in fact the appellant was promoted-a.-- E.A.C. From the quota of Tehsildars and not from the cadre of Naib-Tehsil dar-cum-officiating Tehsildars therefore, he would not be in a position to claim seniority on the said basis.
8. We have given our anxious thought to the arguments so advanced before us by both the parties and after consulting the record of this case, which was so made available to us from Board of Revenue, we find that the appellant was definitely senior to all the 14 persons so promoted in the year 1974, from the list of Naib-Tehsildar/Officiating Tehsildars. We have further satisfied ourselves from the record and find that the appellant was never considered alongwith 14 persons so promoted in 1974, therefore, we have no hesitation to hold that he was neither ignored nor superseded at the said time. With regard to the claim of learned' District Attorney that 14 persons so promoted were considered more brilliant and with better record than the appellant, we repel the claim as absolutely not warranted from the record. Nowhere on the file it has been said that the persons so promoted were extraordinary brilliant whereas the appellant was much lesser in these qualities. We have also satisfied ourselves that the appellant was promoted from the same category of Naib-Tehsildars/ Officiating Tehsildars and thus, belongs to the same category and not to the category of Tehsildars as claimed by the learned counsel for the respon--dents. With these undisputed facts on the record what emerges is that according to the law laid down, the appellant would be entitled to rank senior to those who had been promoted to 1974, as well as against others, who were promoted between 1974 and 1980, as being a person senior in the lower grade would rank senior also in higher grade because he was note superseded.
9. With regard to the claim of the respondents' counsel Mr. Masud Ahmad Riaz, Advocate, that the cause of action arose to the appellant in 1974 and he kept quiet, therefore, his appeal would be time-barred, it would be sufficient to say that the appellant has nowhere agitated against the promotion of 14 persons or others who have been promoted and has only agitated his claim of seniority over them, when he himself had been placed at par in the category of E.A.C. Alongwith them. It is on the record that his representation was finally rejected on 21-10-1981, and the communication was made on 24-11-1981, therefore, the appeal of the appellant is within time and is not hit by Law of Limitation.
10. We have also examined the case of Malik Khaliq Dad who vide notification dated 6-10-1981, was conferred pro forma promotion as E.A.C. Were. f. 24-7-1974, the date when his junior Malik Muhammad Munir was promoted and was assigned the seniority were. f. The same date. This case is absolutely on all fours with the case of the appellant and there is no justification left with the respondents to discriminate the case of the appellant as against the case of Malik Khaliq Dad, We cannot permit two yardsticks to the respondents to assess the case of identical nature. We have also failed to understand the logic as well as philosophy of the Government notification dated 9-4- 1980, which partially modified the appellant seniority were. f. 1-8-1978, placing him above Raja Saeed Akhtar and below Mian Saeed Akhtar. If he is to be assigned earlier seniority, the date would be reckoned from the date so given to Malik Khaliq Dad, which is from the date when his juniors were promoted when he was not being superseded.
11. In view of the above analysis of the entire case of the appellant vis-a-vis the case of the respondents, we are of the considered opinion that the appellant, who was neither considered nor superseded in 1974, when juniors to him were promoted, would be entitled to be placed on Serial No. 60 of the seniority list above Abdul Qayyum and below Mumtaz Ali now at Serial No. 59 of Half- yearly Gradation and Distribution List corrected up to 30th June, 1981, we proceed to accept the appeal, set aside the impugned seniority list, which be corrected as indicated above. How--ever, parties will bear their own costs.