MALIK ZAWWAR HUSSAIN (MEMBER).-Malik Riaz Hussain, Excise and Taxation Sub-Inspector has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Province of the Punjab through the Secretary, Excise and Taxation Lahore, the Director General, Excise and Taxation, Lahore, the Director Excise and Taxation, Lahore and 12 other persons as respondents. By virtue of this appeal he has prayed that the orders dated 5-6-1980 and 3-8- 1980 passed by the Director-General, Excise and Taxation, Lahore and the Director, Excise and Taxation, Lahore respondents Nos. 2 and 3 be set aside and that he be allowed his due seniority.
2. Brief facts of the case are that the appellant was appointed as a Junior Clerk in the Excise and Taxation Department on 27-11-1957. Ac--cording to the West Pakistan Excise and Taxation Department Subordinate Service Rules, 1956, 20% posts of Sub-Inspectors were to be filled from amongst the Ministerial staff below the rank of Assistants and Senior Clerks of the Board of Revenue belonging to the Division where the vacancy would occur. Later, by an amendment of 18th September, 1973, clause (b) of sub-rule (4) of the said rule was amended as below :- "in sub-rule (4) for the existing clause (b), the following shall be substituted :-
(b) in the case of posts of Sub-Inspectors-
(i) seventy-five per cent. By selection on merits with due to seniority from among members of the West Pakistan Excise and Taxation Department Ministerial Service (Divisional), in the Division where the vacancies occur, who hold the posts of Senior Clerks with at least three years' service as such or five years total service in the department, and have passed departmental examination under the Punjab Excise and Taxation Departmental Examination Rules, 1971 ; and
(ii) twenty-five per cent. By selection on merits with due regard to seniority from among members of the West Pakistan Excise and Taxation Department Ministerial Service (Divisional), in the Division where the vacancies occur, who hold the posts of Stenotypist with at least three years' service as such and not less than ten years service in department and have passed depart--mental examination under the Punjab Excise and Taxation Departmental Examination Rules, 1971 Provided that if no suitable Senior Clerk or Stenotypist is avail--able for promotion against any vacancy of their respective quotas, the vacancy may be filled by selection on merit with due regard to seniority from among members of the Punjab Excise and Taxation Department Ministerial Service (Divisional), in the Division where the vacancies occur, who hold the posts of Junior Clerks with at least five years' service as such and have passed departmental examination under the Punjab Excise and Taxation Departmental Examination Rules, 1971."
The appellant appeared in the examination as required under rules and fulfilled one of the conditions laid down in the Rules for promotion as a Sub-Inspector. In September, 1973, 12 posts of Taxation Sub-Inspector were required to be filled by promotion from amongst the suitable member of the Ministerial Service of Lahore Division and at that time only two persons including the appellant had qualified the prescribed examination vide order dated 6-10-1973, the respondent Nos. 4 to 15 were appointed as temporary Excise and Taxation Sub-Inspector against the posts sanctioned by the Government for the assessment and collection of Cotton fees and were allocated to the Lahore Division. However, the appellant was not appointed at that time. When the appellant came to know that he has not been appointed alongwith the contesting respondents, he filed an appeal/ representations to the Secretary, Excise and Taxation B. O. R. Punjab Lahore on 18- 10-1978 and requested that since he had passed the requisite departmental examination, so he should have been appointed as Excise and Taxation Sub-Inspector. However, by the order dated 29-12-1973 the appellant and four others belonging to Ministerial cadre of the Excise and. Taxation Department of Lahore Division were selected and appointed as temporary Excise and Taxation Sub-Inspector and posted at Lahore for collection of Cotton fees against 5 additional posts of Lahore Division. According to the merit list, the appellant was placed at Serial No. 2. As the ill-luck would have it, the Director issued order on 1-1-1974 whereby the promotion of the appellant and his four other colleagues was kept in abeyance till further orders. However, vide order dated 16-1-1974, the appellant was appointed as Sub-Inspector E & T Lahore against an available vacancy on the Excise and Taxation side; which was caused in consequences of the transfer of Sub-Inspectors from Lahore Division by withdrawing the office order dated 1-1-1974 but subject to the condition that their promotion would be effected from the date of their reporting for duty. The appellant claims that although he was appointed vide order dated 16-1-1974 but his seniority vis-a-vis the con--testing respondents appointed on 6-10-1973 was not determined and the issue remained under process with the Government which was ultimately rejected by the respondents Nos. 2 and 3 by the impugned orders. Hence this appeal. .
3. We have heard the learned counsel for the parties. It has been argued on behalf of the appellant that the respondents Nos. 4 to 15 were promoted as Sub-Inspectors in violation of the service rules because they had not passed the required departmental examination prescribed under the Rules which was amended vide dated 18-9-1973. It has further been argued that when the Contesting Respondents were appointed on 6-10-1973, he was the only persons eligible for promotion because he had passed the required departmental examination. Thus, ho. Was ignored in an illegal manner.
While concluding the arguments`, the learned counsel for the appellant has argued that the appointment of the contest--ing Respondents was in the nature .Of ad hoc appointment because they did not fulfil the required conditions as laid down in the Rules and that the appellant being the only person who fulfilled the required qualifica--tions, was entitled to count the seniority w.e.f. 6-10- 1973, reckoning him senior than the Contesting Respondents. Controverting these arguments the learned District Attorney has submitted that vide No. 2829-73/2243-E (E & T I), dated 3-11-1973, the Government of the Punjab, relaxed the conditions of passing the departmental examination prescribed under rule 5 (4) (b) of the West Pakistan, Excise and Taxation Department Subordinate.
Service Rules, 1966 for the purpose for promoting the Senior Clerks of the Department as Excise and Taxation Sub-Inspectors. Since the rule prescribing departmental examination was relaxed by the Government, as such the promotion of the contesting respondents was regularized. It has further been argued that according to the rule of seniority laid down in rule 9 of the Service Rule and rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the contesting respondents are definitely senior than the appellant because according to these rules the seniority is to be counted in their case with reference to the date of their continuous appointment in the grade. Since the appellant was promoted firstly on 29-12-1973 and then on 16-1-1974 much after promotion of the contesting respondents, so he will have to be declared junior to the contesting respondents. Mr. M. M. Ashraf, Advocate appearing on behalf of Anwar Ashraf, Respondent No. 15 has adopted the arguments of the District Attorney and has submitted that since he possessed better academic qualification, so he was promoted in preference to the appellant from the quota of Junior Clerks.
4. We have given our anxious thoughts to the arguments of the parties and have also perused the record carefully. According to the rule of seniority, the seniority inter se of persons appointed to posts in the same grade in a functional group is to be determined in the case of persons appointed otherwise, with reference to the date of continuous appointment in the grade provided that if the date of continuous appoint--ment in the case of person or persons appointed to the grade is the same, the older if not junior to the younger in the below grade, shall rank senior to the younger person. According to the explanation of rule 8 regarding the seniority, it has further been laid down that if a person junior in a lower grade is promoted to the higher grade by superseding his senior and subsequently the later is also promoted, the promoted first shall rank senior to the one promoted subsequently provided that a junior promoted to a higher grade shall be deemed to have superseded his senior only if both the junior and the senior were considered for the higher grade and the junior person was appointed in preference to the senior. The record shows that the Contesting Respondents Nos. 4 to 14, who were senior Clerks or Steno-typists were promoted as Sub-Inspectors vide order dated 6-10-1973. The respondent No. 15 who was a Junior Clerk was also promoted on 6-10-1973, while the appellant was promoted as a Sub-Inspector on such after date.
So keeping the rule of seniority and the dates of promotion' of the appellant vis-a-vis that of contesting Respondents No. 4 to 14, we can safely conclude that the appellant is definitely junior to these respondents. However, the case of respondent No. 15 is different than those of contesting respondents Nos. 4 to 14. From the perusal of memo. No. 6060/E, dated 21-11-1973 from the Director, Excise and Taxation to Secretary, Excise and Taxation B. O. R. Punjab, Lahore, it appears that the appellant was placed at Sr.. No. 41 of the seniority list of Junior Clerk while Mr. Anwar Ashraf, respondent No. 15 figured at Sr. No. 65 of the said list. Thus, the appellant was senior to respondent No. 15 in the lower grade. This memorandum also shows that according to the ratio worked out in the light of the Service Rules lastly amended by the Notification dated 18-9-1973 only one Junior Clerk was eligible for promotion as Sub-Inspector out of the 12 posts. Since it was decided to fill in the post purely on merits so the respondent No. 15 was selected as he possessed the Degrees of M.
A. And LL. B. As such the appellant was not considered for promotion at that time.Thus, it is clear that when the respondent No. 15 was promoted as Sub-Inspector, the appellant was not considered alongwith him. As such it cannot be presumed that the contesting respondent No. 15 was selected and promoted in preference to the appellant, by his supersession. Thus, the appellant shall be deemed to have carried his seniority in the lower grade of Junior Clerk to the higher grade of Sub-Inspector. Thus, the appellant would rank senior to the respondent No. 15.
5. In view of the above analysis we hold that the appellant is senior to Anwar Ashraf, respondent No. 15 but he has rightly been declared junior to the contesting respondents Nos. 4 to 14. The result is that the appeal is accepted to the extent indicated above. There will be no order as to costs.