1. S. A. MAHMOOD (CHAIRMAN).-The appellant was show senior to respondent No. 2 in the seniority list published by respondent No. 1 vide notification dated the 25th February 1970. Respondent No. 2 challenged this order and gave a notice to respondent No. 1 under section 80 C. P. C. As a result of this, the case was re-examined and respondent No. 2 was declared to be senior in accordance with order dated the 4tb September 1970.The appellant is aggrieved of this order and has appealed that it should be set aside.
2. The facts of this case are that the appellant was appointed as Agriculture Assistant on 28th September 1949. He was promoted as Assistant Food Specialist in Class II on 26-7-1963.
3. Respondent No. 2 was appointed as Agriculture Assistant on 31-3-1939. He was also promoted simultaneously as Assistant Horticulturist, Murree in WPAS-II. It was stated in this order that these promotions were temporary and did not confer any right or title and no one could claim any right or seniority on the basis of this order. The promotion of Haji Ghulam Mustafa was for a period of one year during which he was kept under special report after which a final decision was to be taken about him. It was also stated in this letter that their seniority would be regulated by their seniority in the cadre of Agriculture Department.
4. The case of promotion of Mian Abdul Ghafoor, Assistant Horticulturist to the post of Assistant Food Specialist, Lyallpur was referred to the Commission by the West Pakistan Agriculture Department on the 18th December 1963. In the same letter, it was stated that the case of promoting Haji Ghulam Mustafa for approval of the Commission in the prescribed pro forma, will be sent on receipt of special report from the Director, Agricultural Research Institute, Lyallpur, The approval of the Commission tray, however, be accorded to enable the officer get his pay beyond a period of six months. Subsequently, the Government of West Pakistan, Agriculture Department made are reference about the appellant and respondent No. 2 on the 27thJune 1964, in which it sought approval of their continuation beyond a period of six months and sought advice whether Haji Ghulam Mustafa should continue beyond a period of one year on the basis of his then present record. It also recom--mended that M/s. Haji Ghulam Mustafa and Mian Abdul Ghafoor should be considered for regular promotion to WPAS-II. An advice was received from the Public Service Commission on the 21st August 1965 agreeing to the promotion of Mr. Abdul Ghafoor to WPAS subject to me condition that if his senior Mr. Ghulam Mustafa whose case was separately under considera--tion was also appointed, he would rank senior to Mr. Abdul Ghafoor in Class II. It was on this basis that order appointing the appellant was issued on the 14th September 1965, and the condition laid down by the Public Service Commission was reproduced that if his senior Mr. Ghulam Mustafa whose case was under consideration was also promoted to Class II, he would rank senior to Mr. Abdul Ghafoor in Class II.
5. A reference was made by the Provincial Government to the Commission that the post of Assistant Horticulturist and Assistant Food Specialist are to be filled in accordance with the West Pakistan Agriculture Service (Research Wing) Class. 11 Rules, 1963 from among their Research Assistants, who have three years experience. Both Haji Ghulam Mustafa and Mian Abdul Ghafoor possessed the requisite qualifications and necessary experience in the line of their promotion. Mr. Ghulam Mustfa who was kept under observation for a period of one year was reported to have worked satisfactorily. But the Commission advised in their letter dated the 18th February 1965 that it did not consider Haji Ghulam Mustafa suitable for promotion to: Class II and asked the Government to send a fresh proposal for promotion to the post of Assistant Horticulturist. The Agriculture Department represented against the advice of the Commission in their letter dated the 18th February 1965, stating that the merit of Haji Ghulam Mustafa justified his promotion. Adverse remarks earned by him were from an officer not well disposed towards him. It was further stated that the remarks against him were arbitrary and were not communicated to him. The report earned by him during the year 1967 onwards were satisfactory and were not adverse. The Commission advised the Agriculture Department in their letter dated the 13th December 1965, in reply to the reference from the letter that the case of Haji Ghulam Mustafa for promotion to the post of Assistant Horticulturist had been reconsidered again on the ground given in the letter of the Provincial Government but they saw no justification for revising their previous advice dated 16th January 1965. It was reiterated that fresh proposals for promotion should be sent to the Commission.
6. A further reference was made by the Administration Depart--ment to the Commission on the 28th February 1966 in which the merits of the case of Haji Ghulam Mustafa were discussed. It was stated that Government did not consider it necessary to expunge the adverse remarks because his latest reports for the years, 1964 and 1965 were good and justified his retention in Class II. It was suggested that the Commission should reconsider his case for promotion to Class II keeping in view the report for the year ending 3lst December 1965, which was not before the Public Service Commission when the advice was tendered by them. The Commission advised in their letter dated the 8th November 1966, that it has reconsidered the case of Haji Ghulam Mustafa and now they agreed to his promotion to the post of Assistant Horticulturist Class II. He would, however, be deemed to have been superseded by his junior Mr. Abdul Ghafoor, who had been approved earlier.
7. It has been argued on behalf of the appellant that respondent No. 2 has been superseded by the appellant. Reliance has been placed on Explanations II and III of Rule 9 (l) of the West Pakistan Agriculture Service (Research Wing) Class II Rules, 1963. The two Explanations are reproduced below :- Explanation 11.-If a junior officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subse--quently.
8. Explanation III.-A junior officer appointed to a higher grade. shall be deemed to have superseded a senior officer only if both the junior and the senior officers were considered for the higher grade and the junior officer was appointed in preference to the senior officer.
9. The advice of the Commission has not been specifically over--ruled by the Governor - Respondent No. 2 represented against his super session by the appellant, but he was informed on 24-1-67 that he would be deemed junior to the appellant in view of the advice of the West Pakistan Public Service Commission. He again represented against this and he was informed by the Provincial Government on 10-6-1967. that as he has made no now point, his representation has no force and therefore, Government filed it. The existing decision was said to be final. Respondent No. 3 again represented against this decision and he was informed on 27-3-1967 by the Agriculture Department that his representa--tion has been considered in consultation with the Commission and Government saw no justification for reviewing its previous order and the representation has, therefore, been rejected. In view of the three examinations by the Provincial Government, the order could not be reviewed for the fourth time It has been argued on behalf of respondent 2 that his rights are protected under Explanation I to Rule 9 (1) which is reproduced below :--- Explanation l.-If a junior officer in a lower grade is promo--ted 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.
10. It has also been argued that temporary promotion of appellant in public interest although he continued later on permanently in the higher grade would not adversely affect the interest of respondent No. 2. Secondly, it has been urged that respondent No. 2 was being considered for a different post than the one for which the appellant was considered, there was no comparison bet-- ween the merits of the two officers. In view of this, he cannot be said to have been superseded. The third argument is that the right of respondent 2 was protected by the Commission while conveying the approval to the promotion of the appellant in which a condition was laid down that the case of Haji Ghulam Mustafa was under consideration and if he was promoted, he would stand senior to the appellant. The case of respondent No. 2 and the appellant were referred to the Commission simultaneously and he should not suffer in his seniority on account of delay by the Commission. He should rank senior to the appellant because he is senior in the lower rank. It has also been argued that the Commission cannot advise on the merits of seniority in individual cases.
11. According to Rule 9 (1) (6), the seniority inter se of the members of service in the various grades is to be determined in the case of members appointed otherwise, with reference to the dates of their continuous appointment therein. As both the parties are promotees, this rule is applicable to them.
12. The appellant as well as respondent No. 2 were promoted on a temporary basis on 26-7-1963. It was stated in the letter that this would not confer any right. Both the officers were in the non- gazetted rank and Class II is a gazetted rank. It is necessary to consult the Commission about the suitability of candidates for such promotions under regulation 4 of the West Pakistan Public Service Commission (Limitation of Functions) Regulations, 195 7. Prior to the consultation with the Commis- -sion an appointment can be made for a period not exceeding six months under intimation to the Commission under Regula--tion 3 (4) ibid. It is the function of the Commission to determine the suitability of a candidate for promotion. This function cannot be abridged and unless the Commission's advice is received about the suitability of a person, his appointment will only be an ad hoe appointment and will not be a regular appointment giving him a right of becoming a member of the service. The Services and General Administration Department has re-affirmed this position in their circular letter dated 25-6-1965 by laying down as follows about recognition of ad hoc service for purposes of seniority:-- "Ad hoc appointments will not confer any right on them in the matter of appointment to the same post nor the service will count towards seniority."
13. In view of this position, the date of continuous appoint--ment of respondent 2 is 16-11-1966, the date on which his appointment orders were issued after the Public Service Com--mission declared him to be suitable. The date of continuous appointment of the appellant is 14-9-1965, the date on which his order of appointment was issued after the receipt of the recommendation of the Commission. It was, however, stated in the advice of the Commission that his appointment was subject to the condition that if his senior Mr. Ghulam Mustafa whose case was under consideration was also promoted to Class II, he would rank senior to Mr. Abdul Chafoor in Class II. The counsel for respondent 2 relies on this and has argued that because of this, Mr. Ghulam Mustafa regained tits seniority over the appellant in Class If. On the other hand, he assails the advice of the Commission dated 8-11-1966 that Haji Ghulam Mustafa may be promoted to Class If, but he would be deemed to have been superseded by his junior Mr. Abdul Ghafoor, who had been approved earlier. The stand is not consistent. Respondent No. 2 wishes to take advantage of the earlier advice of the Commission in his favour, but wants us to disregard the advice of the Commission dated 8-11-1966 in which it declared him to be junior to the appellant. Reliance has been placed on West Pakistan Government Notification dated the 16th December 1967, according to which an amendment was made in Regulation 7 of the West Pakistan Public Service Commission (Limitation of Functions)
14. Regulations, 1957, "it shall not be necessary to consult the Commission in the matters of seniority, except the principles on which it may be fixed." Firstly, this amendment cannot have retrospective effect to debar the Com--mission from expressing an opinion about the seniority of respondent No.
2. Moreover, it has to be examined whether the advice of the Commission is consistent with the provision of the Rules. A reference to Explanation I to rule 9 (1) shows that the rights of a senior person are protected against a temporary promotion of a junior official to a higher grade. In the case in question, the claim of respondent 2 was under consideration of Commission. They had not made up their mind about the merit of respondent No. 2. The rider provided by the Commission while advising about the promotion of the appellant that he will rank senior to respondent 2 was consistent with this explanation, as he was senior to the appellant in the lower grade. Thus the observation of the Commission in its advice is based on the rule. The facts of the case reveal that the case of respondent 2 was considered on merits by the Commission thrice. Each time the Commissionrejected the case of respondent 2 on merit and did not consider him suitable for promotion. If a person's merits are considered and he is found to be unsuitable, then the verdict about his suitability is available. It then becomes a clear case of super session qua others who were held to be suitable. As the C-emission had finally advised about respondent 2 that he could not be promoted because of certain adverse entries, his merits would be deemed to have been finally considered and decided. He would, thus stand superseded by the appellant, who was considered to be suitable in an earlier advice. Explanation 11 of Rule 9(1) clearly lays down that if a junior officer in a lower grade is promoted to a higher grade by Superseding an officer subsequently, that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently. Respondent No. 2 was considered suitable for promotion after he had earned three annual confidential reports. The advice of the Commission about his seniority was, therefore, consistent with the rules. The selection was subsequent on the 16-11-1965 thus he has been clearly superseded by the appellant. The advice of the Commission was also consistent with the rule.
15. The two posts are interchangeable and are on the same cadre. The source of recruitment is also the same. According to the rules, their seniority is to be fixed in Class 11 under Rule 9.Their cases were considered by the Commission simultaneously. According to the facts of this case, the Commission did make an attempt to save the seniority of respondent No. 2. But it finally declared him to be unsuitable on merits and re-- examined the case on two occasions at the request of the Admini--strative Department and yet found him unsuitable. His super ses--sion was complete qua the appellant. He is thus hit by Explanation II of Rule 9 (1) and stands junior to the appellant. Under the circumstances, the impugned order in Annexure 'F' passed by the competent authority is quashed and the appellant is declared to be senior to respondent No. 2. The appeal is accepted with no order as to cost.