1. BASHIR AHMAD KHAN (MEMBER).-The appellant filed an appeal in July 1970. -A revised statement of her case was submitted in January 1971. She contends that her name does trot appear in the seniority of officers of WPES-11 Admn. Branch (Women's Section) of Rawalpindi Region published by the Director, Education, Rawalpindi Region on 7-4-1970. Instead she has been shown in the gradation list of Subordinate Education Service Anglo Vernacular Section Women Branch, which is corrected up to 1-6-1962. She has also not been granted selection grade of the subordinate service.
2. She prays that respondents 1 to 3 be directed to correct the seniority position of the appellant from 1949 onwards in the Subordinate Education Service and also assign the correct position of the appellant in Grade II service.
3. Our attention has been drawn on behalf of the appellant to the extract from the Gradation List of Grade III of subordinate service corrected up to 1-4-1948 in which the appellant was shown senior to Miss Z. A. Rehman, Miss B. Manzoor, Miss Maqbool Hussain, Miss Karam Bu, Mrs. Mumtaz Cheema and Miss R. D. Butt. The other respondents were junior to them in this list. The seniority list corrected up to 1-4-1949 shows that the six lady respondents mentioned earlier were confirmed on 1-4-1948, although their dates of officiating promotion differ. The appellant was senior to the six ladies in Grade III but they were shown senior to her in Grade II. Our attention has been drawn to the judgment of this Tribunal in Case No. 61/43 of 1970-Mrs. Z. Aslam v. Secretary to Government, in which it was held that the date of confirmation being the same and as the Director of Education has not used his discretion about fixation Of seniority, the seniority of the officials should be fixed as in the lower grade.
4. It has been claimed that this principle should also be made applicable in this case and the seniority of the appellant may be revised by declaring her senior to her juniors in Grade III of the subordinate service.
5. The scales were revised on 1-1-1950. The ordinary grade was Rs. 130 --10 -200/ l0 -250 and selection grade was Rs. 250-15-355. This scale was to be granted to 15 % of the cadre posts. The appellant was continued in the ordinary grade. In August 1957, some officials were granted selection grade, but the appellant did not get it as there was no vacancy, according to the, seniority list of 1949. It has been argued that had her seniority corrected up to 1-4-1948 remained intact, s o should have been granted selection grade.
6. The Finance Department issued a notification on 24-8-1959 in which the posts of Headmistresses of High Schools were added to the posts under the West Pakistan Education Service Class II (Adorn.
7. Branch) in the scale of Rs. 250-20-450/25-600/25-750 The following note appeared in the notification:- "The posts of Headmistresses should be deemed to have been upgraded from the date of the notification and the corres--ponding number of selection grade posts in the subordinate Service reduced."
8. The appellant was appointed as Headmistress of the High Stool, Mianwali on 15-5-1950 and she is still Headmistress and is in the subordinate service. She has not been given the benefit of absorption in Class II.
9. The subordinate service grade was revised again on 1-12-1962. The consolidated scale was Rs. 250- 15-310/15-400. The selection grade was revised to Rs. 325-20-525. The appellant was given the revised time scale.
10. It has been explained on behalf of the respondent that the appellant was considered for vacancy subsequently on 24-8-1959 and was superseded under the advice of the Public Service Com-- mission. She was superseded by the advice of the Commission dated 19-5-1966.
11. The Department has explained that 45 posts were upgraded to Class II by the Finance Department in their notification dated the 24th August 1959. In addition to this, there were 12 posts which fell vacant before the issue of the notification upgrading the posts of Head mistresses and 17 posts fell vacant after this notification 43 Headmistresses were approved by the D. P. I. against 45 upgraded vacancies. The appellant's claim eras not considered as she did not hold selection grade post. In all 11 ladies are said to have been ignored by the D. P. 1.
12. The appellant was given Grade II of Rs. 150-10-190---10-220 by the D. P.I. vide his order dated the 11th October 1948. Another order was issued on the 26th October 1948 as a clarification in which it was said that the following 10 ladies had been given selectional promotion to the grade of Rs.
13. 150/220 in lieu of their holding posts of Headmistresses and District Inspec--tresses of Schools:-
(1) Miss M. Akram, Headmistress, Govt. Girls Middle School, Chichawatni.
(2) Miss Fatima Karim, Headmistress, Govt. Girls Middle School, Toba Tek Singh.
(3) Miss Gulzar Akhtar, Headmistress, Govt. Girls Middle School, Akalagarh.
(4) Miss Maqbool Hassan, Assistant District Inspectress of Schools, Sialkot,
(5) Miss Z. Karam Bakhsh, A. D. I. of Schools, Lahore.
(6) Miss Khushnood Bano, Headmistress Govt. Girls Middle School, Bhakkar.
(7) Miss Akhtar Aziz, Headmistress, Govt. Girls Middle School, Chunian.
(8) Mrs. Mumtaz Cheema, Headmistress, Govt. Girls Mliddle School, Shakargarh.
(9) Miss Manzura Shah Bukhari, A. D. I. of Schools, Lyallpur.
(10) Miss,R. D. Butt, A. D. I. of Schools, Rawalpindi.
14. All of them were confirmed on the same date, but the following ladies were shown senior to the appellant in the 1949 list, although they were junior to her in Grade III:--
(1) Miss Maqbool Hussain;
(2) Miss Karam Bakhsh;
(3) Miss R. D. Butt;
(4) Mrs. Mumtaz Cheema.
15. It was also alleged by the appellant that Mrs. Makhdumi, D. P. I. passed an order on 6-7-1957 agreeing to give her selection grade, but no order was issued. Again Mr. C. M. Sadiq, D. P. I. passed an order on 3-1-1961 that the appellant should be given selection grade from 1-4-1955. Again he passed an order on 4-5-1951 that one vacancy should be reserved for her till the inquiry which was pending against the appellant was com--pleted. The Government Pleader has stated that he has instructions that no such orders were passed.
16. The appellant also alleged that in 1949 she, was told by the D. P. I. that there was no selection grape vacancy left for her on the basis of her seniority. The reply from D. P. I. Rawalpindi was also similar.
17. It has been argued on behalf of the respondents that the confirmation of the appellant should have been after the expiry of the period of probation. She was promoted on 1-4-1948 to Grade II whereas Miss B. Manzoor was promoted on 2-3-1948 and Miss Maqbool Hussain on 10.3-1918 and Miss R. D. Butt on 18-2-1948. Mrs. Mumtaz Cheema on 4-3-19:18, Miss Z. A.
18. Rahman and Miss Naqvi were also appointed before this date, although no dates were given. It is argued that as these ladies were officiating earlier in Grade II, therefore, they are senior to Miss Naqvi. The appellant and the six ladies, including Miss Z. A. Rahman, Miss B. Manzoor, Miss Maqbool Hussain, Miss Karam Baksh, Miss R. D. Butt and Mrs. Mumtaz Cheema were promoted on 1-4-1948.
19. Their date of continuous officiation was not relevant for purpose of seniority, as the seniority has to be determined from the date of confirmation. The learned counsel's for respondent No. 1 has argued that for the purpose of rule 8, the confirmation shall be the day after the expiry of the pro-- bation and not earlier. According to rule 7 of the Punjab Subordinate Education Service Rules, 1937, members of the service who were recruited direct against permanent vacancies had to remain on probation in the first instance for one year. None of the six ladies or the appellant had completed one year on the date of confirmation. The appointing authority used its discretion to confirm the six ladies before they had completed their probation and the appellant was confirmed on the samedate on which she was put on probation. This was permissible under the general instructions of the Punjab Government. The Education Department cannot now challenge that the period of probation should have been allowed to run in full before confir--mation. Under the circumstances, the date of continuous officiation of the six ladies is not relevant for the purpose of fixing their seniority qua the appellant.
20. The six ladies and the appellant will be governed by the proviso to rule 8 and it has to be seen whether the Director used his discretion for inter se seniority of the appellant and the respondents.
21. Our attention has been drawn to a note by the office of the Director of Education Punjab dated 4- 10-1948. The relevant portion of the office noting is:- "Those A. D. I's or Headmistresses who are officiating in the scale of Rs. 150-220 prior to 1-4-1948 will automatically become senior to those who got promotion from 1-4-1948, although the latter were senior in the lower grade."
22. The names in the office order were arranged according to seniority on this basis. The case was put up to the then Deputy Director of Education, Mr. Ghulam Rasul Shauq, who put his signature below this note as a mark of his approval. It was argued by the learned counsel for the appellant that it was not a competent order as it was passed by the Deputy Director and not by the Director of Education as required by proviso to rule. Our attention was drawn by the learned counsel for respondents Nos. 1 and 2 that Miss Naqvi represented against her seniority in 1959 to the Director of Education who passed an order on 16-3-1959 as follows:- "The Subordinate Education Service Rules, 1937 govern these ladies. Rule 8 of these rules says that if two or more members are confirmed in the same class of post on the same date, their seniority shall be determined by the Director whose decision shall be final The Director has already decided their seniority vide Mr. Shauq's note dated 5-10-1948 in file No. 18/78-48-W. These ladies will, therefore, maintain their seniority that was given to them by the then n. P. L"
23. This position was reiterated by the. Director Education in his note dated 28-4-1959. It has been stressed that as the Director of Education used his discretion i.e. 1959 it should be deemed to be a decision under proviso to rule 8. But this con--tention cannot be accepted as both the order dated the 16th March 1959 and 28:h April 19s59 by the then Director of Educa--tion only rely on the order passed by Mr. Shauq on 5-10-1948. The issue, therefore, is whether the order passed by the latter is valid or not. This very issue was examined by the Tribunal in case No. 61/43 of 1970 Mrs. Z. Aslam v.
24. Secretary Education Department and others and it was held that as Mr. Shauq was a Deputy Director,an order passed by him cannot be held to have been passed by the Director, who alone was competent to use the discretion under proviso to the said rule. Seniority the lower grade was adopted for purpose of determining seniority of the appellant in that case in the higher grade.
25. We have further examined file No. 18/78-48-W. It shows that the then Director of Education passed an order on 10-8-1948 about promotion in the following words:- "As regards the actual promotions, I have asked office to prepare a seniority list of B. A. B. Ts. including their total length of service to determine actual promotion."
26. The office prepared a list according to this direction and the name of Miss Naqvi appeared at serial No. 3 according to the length of service in an unsigned note dated 2-10-48 marked to H. A. W. There is a note below this unsigned note by Mr. Shauq that the D. P. I. has approved the above promotions excepting Miss Z. A. Abid and No. 3 above if she does not go to Mianwali. She did go there, presumably, the intention of the D. P. I. was to maintain the seniority list and in view of the reasons stated in Case No. 61/43 of 1970, we hold that Miss l will be treated as senior to the six ladies in Grade II of Rs. 150-220, as she was senior to them in Grade III.
27. The second issue is that she should be granted selection grade. It has been contended by the appellant that she was not granted selection grade because no selection grade was available for her whereas her juniors were granted this grade. According to rule 13 of the Punjab Education Service Class II Rules, promotion to the selection grade shall be made strictly by selection and no member shall have any claim to such promotion as of right. But the selection grade pertains to the subordinate service and not to Class II service. There is no such provision in the Punjab Subordinate Education Service Rules, 1937. It has been contended that it was the practice of the Department to take into consideration the merits of each individual and seniority was not the only criterion.
28. Moreover, our attention -has been drawn to proposition laid down in PLD 1954 Dacca 57:- "It appears to me that the promotion to the selection grade is made by selection and the Surgeon- General is the authority to make it. An officer has Do right to occupy the selection grade unless he is selected by the Surgeon-General. The Court has no say in the matter; it cannot usurp the function of the Surgeon-General to say who is to be and who is not to be or who ought to have been or who ought not to have been selected here can be no doubt that the respondent was eligible for the selection grade; but the fact is that he was never selected by the Surgeon-General whose judgment alone counts; subject to such revision by the Government as may be provided for."
29. This Tribunal is, therefore, unable to substitute its judgment for that of the Director of Education and it cannot pass an order granting the appellant the selection grade.
30. The third issue in this case is that the name of the appellant does not appear in Class II and she should be brought on the seniority list. The Finance Department of the West Pakistan issued a notification on 24-8-1959 according to which the posts of Headmistresses of the High Schools were upgraded from 1 G-8-1959 and the corresponding number of selection grade posts in the subordinate service were reduced. We enquired from the representative of respondent No. 1 as to how the upgraded posts were filled. W e were told that the posts were given to those headmistresses who were holding selection grade. The Depart--ment was directed to produce the relevant files on the subject File No. SOE-III-1/34-64 has been examined. The note of the Section Officer reveals that the original recommendation of the Director of Education, Lahore Region was lost and a dupli--cate unsigned copy was obtained for dealing with the case of upgraded posts and other posts. It has been argued on behalf of the appellant that the appellant was holding the post of Headmistress on 15-5-1950 continuously and as she was holding this post on 24-8-1959, therefore, she should have been auto--matically promoted to Class 11. We find that the Director of Education discussed the merits of all the claimants and the following note was given about Miss Naqvi at serial No. 61:- "Miss Naqvi, B. A. B. T. Headmistress, Government Girls High School, Chakwal previously was not promoted to selection grade on account of adverse remarks. The Director of Education, Rawalpindi Region has not recommended her case on account of adverse reports. Last time, she was recom-- mended for promotion to Class II on compassionate ground and her case was sent to the former D.
31. P. I.--- The above note is not categorical, but we have examined the context of the note and find that when the Director of Education intended to use one of the upgraded posts, he used a particular serial number and he used the next serial number of upgraded posts for the lady recommended. In this case he utilized the balance of upgraded post No. 7 for the appellant. Moreover, Pie specifically stated in his note that he does not recommend a 1adly for promotion, and gave reasons. He did so in 10 cases. This presumption was also supported from the note of the Section Officer dated 17-7-64 while dealing with this he mentioned the names of 10 other ladies who were not recom--mended as fit for promotion. The name of the appellant was not included among them thus it shows that the Director in fact recommended the appellant and this position was accepted by the Secretariat.
32. Moreover, a perusal of this note shows that only untrained or unwilling Headmistresses were not recommended by tire Director of Education. Miss Naqvi was neither untrained nor unwilling to act as Headmistress. This recommendation of the Section Officer was eventually al proved by the Secretary Education on 3-9-1964. But somehow there was an omission of the name of Miss Naqvi in the order of promotion issued by the Secretariat on 12-9-1964. But as the Secretary who is the competent authority of Class II Officers did approve leer promotion, her omission from the order docs not divest her of her right of promotion. We have not been shown an order of the Secretary rejecting her for promotion against one of the upgrading post.
33. Moreover, these posts were not referable to the Commission under Regulation No. 4.2 of the We Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957. The question of considering the merit of Miss Naqvi did not arise. She was to be fixed against one of the upgraded posts as she was a trained Headmistress and the upgrading of the post was of general nature. The suitability of her promotion was not to be considered. We, therefore, hold that she shall be deemed to have peen promoted to Class II with effect from 24-8-1969. Her seniority should be determined from the date of her promotion.
34. We hold that the appellant was senior in Grade II of the subordinate service over the six ladies on the basis of her confir--mation with erect from 1-4-1948 and being senior to them in the lower grade. There is no competent order of the Director of Education making her junior to them. This Tribunal is unable to direct the competent authority to grant her selection grade as it involves consideration of merits of the appellant and this Tribunal has no jurisdiction on this aspect of the case. She will be deemed to have been promoted to Class II from 24-8-1959 as her name was recommended by the Director of Education and approved by the Secretary, Education Department.
35. Her omission by the Section Officer in the order dated 12-9-1964 is either deliberate or inadvertent and cannot undo the order passed by the Secretary Education about her promotion. Her seniority in Class II should be fixed on this basis. The appeal is accepted to this extent with no order as to costs.