S. ABDUL JABBAR KHAN (CHAIRMAN). -Muhammad Aslam, Agriculture Officer (Economics and Marketing), Sheikhupura, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Secretary to Government of the Punjab, Agriculture Department, Lahore and Messrs Muhammad Afzal Khan, Nisar Ali Malik, Muhammad Akram, Ashfaq Hussain, Hazoor Ahmad Hazoor Haib Ullah, Nasir Ahmad, Muhammad Yaqub and Abdul Razaque Kaifee, as respondents.
2. By virtue of this appeal he has prayed that he may be shown senior to respondents Nos. 2 to 10, on the basis of his continuous appointment were. f. 2-5-1967, in the seniority list as conveyed to the appellant.
3. Brief facts of the case are that the appellant was appointed as Agriculture Assistant in the Agriculture Extension Wing, Hyderabad Region, by the Deputy Director Agriculture Quetta Division. In the year 1969, at his own request, the appellant was transferred to Lahore Region. The appellant could not resume duty in Lahore Region because the transfer was held in-abeyance, and the appellant was entrusted with Election work by the Deputy Director of Agricultural Quetta Division. In the meantime One Unit was dismembered and the services of the appellant were allocated to Government of Baluchistan, Agriculture Department, Quetta. However, under the policy of the Government that the officers working in the Provinces other than the place of domicile would be repatriated to their respective Provinces. The appellant moved an application before the respondent No. 1 that he may be accommodated in the Punjab Agriculture Department.
Consequently the Director of Agriculture (E & M) Punjab, ordered the absorption of the appellant in the Economic and Marketing Wing in the office of Deputy Director Agriculture Punjab and the Deputy Director Agricultural, Quetta, was requested to relieve him from his duties. After this was done the appellant was assigned the seniority in accordance with the date of continuous appointment. Later on the seniority of the appellant was disturbed and he was shown from the date of joining the Economic and Marketing Wing, Punjab were. f. 11-3-1971. The appellant aggrieved against this order, filed a representation before respondent No. 1 which was accepted by respondent No. 1 and his seniority was fixed accordingly from 3-5-67, and placed above to respondents Nos. 2 to 10. In view of the above, appellant filed representation with a copy to the M.L.A. With the request that after due fixation of seniority of the appellant, he may be promoted with retrospective effect and consequential benefit of seniority" be also given to him. To the utter surprise of the appellant, respondent No. 1 instead of according proforma promotion and benefit of seniority, cancelled his earlier order dated 4-9-1977, without assigning any reason. The appellant made representation against the said arbitrary change of seniority but the same was rejected.
Hence this appeal.
4. Written statements were filed only by respondents Nos. 3, 4 and 5, whereas ex parte proceedings were ordered against respondents Nos, 6 to 10 on 23-9-1981. It is also on the record that nobody appeared on behalf of respondents Nos. 3 to 5 and case was adjourned to 16-8-1982, by awarding payment of costs of Rs. 100 to the appellant. Counsel for the respondents Nos. 3 to 5 did not appear on 16-8-1982 nor any cost was paid, therefore, ex parte proceeding was taken against them.
5. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the, record of this case carefully with their assistance.
6. It has been submitted on behalf of the appellant that once an order granting seniority to the appellant from the date of continuous appointment was made by respondent No. 1 and decisive step had been taken to that effect, he was not competent to pass the order dated16-10-1977 and consequential order dated 4-4-1981, wherein the appellant has been deprived of his due seniority and the respondents Nos. 2 to 10 had been placed above to him: A grievance was made that no justification for cancellation of his earlier order was given by respondent No. 1, thus the appellant has been condemned unheard and without any justification. Learned counsel for the appellant has challenged the note in the remarks column in the seniority list that the appellant had sought transfer to Punjab at his own request and, therefore, he had been given lowest position in the Economic and Marketing Wing. The learned counsel has asserted that no such under--taking was given by the appellant, therefore, the note was factually incorrect. He has based his this plea on the terms and conditions of the transfer order dated 22-2-1971, wherein there was no mention that the appellant would be relegated to the seniority as he has come to Punjab at his own request.
7. On the other hand, objections have been made on behalf of respon--dents Nos: 3 to 5 in the written statement so filed earlier and not pursued later on, that the appeal was time-barred as the impugned order dated 16-10-1977, had attained finality and the same cannot be agitated after a period of four years. With regard to the merits of the case it has been submitted that the order dated 4-9-1977 was bogus and was obtained through a fraud with the connivance of Mr. Abdul Ghani, Section Officer, therefore, the same was cancelled by the Secretary vide order dated 4-4- 1981. It was emphasized that the appellant was transferred at his own request on compassionate grounds for personal reasons and with his consent he was given lowest position in. The cadre.
8. Learned counsel for the Department (Mr. Haroonur Rashid Cheema, D. A.) has taken a stand as indicated in the written statement of respondents Nos. 3 to 5 and has adopted the grounds so given by them.
9. We have given our anxious thought to the arguments so advanced by the parties and are of the opinion that the issues involved in this case for determination are as under :-
(a) Whether the appellant joined the Province of Punjab of his domicile at his own request with clear: undertaking that he would be placed junior most or he was to be repatriated to Punjab without any such undertaking ?
(b) Whether the earlier order passed in his favour granting him seniority from the date of his continuous appointment, was a bogus order or a valid order issued by the Government ?
(c) Whether this appeal is time-barred ? .
To settle the first point, we have looked into Annexure `A-12' at page 26 of the appeal dated 12-2- 1981, from the Government of the Punjab, Agri--culture Department to the Under Secy. (RII) Service, General Admn. And Information Department. This letter is sufficient to conclude the first issue without any ambiguity as it has been stated in this letter that the appellant, before dismemberment of One Unit was sent back to the Province of Punjab at his own request and had also accepted the conditions of being placed junior to the junior most in the Extension Wing of the Agriculture Depart it has been clearly mentioned in the said letter that these circumstances, changed his first offer so given by him, could not materialize. According to the letter it is found that subsequently in January, 1971, the Director of Agriculture Lahore, was asked to intimate, if there was any vacancy of Agriculture Assistant to accommodate the appellant. The Director Agriculture, Lahore, vide his memo. No. 707(4-10911-Estt. Dated 26-1-1971, informed the Government that due to the tight position of the vacancies, the appellant could not be accommodated on the Extension side in the Punjab. This being the situation, the appellant through his applica--tion dated 9-2-1971, requested the Government for his transfer to the Economic and Marketing Wing of Agriculture Department Punjab and his application was passed on to the Director Agriculture (E & M) Punjab, by the Government for accommodating him in E & M Wing vide their order dated 18-2-71. In compliance to the said order the -Director Agriculture (E & M) Punjab directed the Deputy Director Agriculture, Quetta Division to relieve the appellant to join Economic and Marketing Wing.
Accordingly the appellant joined the Economic and Marketing Wing Punjab on9-2-1971. We do not find from any record so made available to us by the respondents that during the course of his joining the Economic and Marketing Wing Punjab, the appellant ever gave any undertaking that his transfer was at his own request or that he would accept the lowest position in the seniority. We have further examined the case of the appellant and find that the appellant was simply directed to join duty in Economic and Marketing Wing of the Directorate of Agricultural (E & M) Punjab, Lahore and no proper order was issued for his transfer for he gave any undertaking that be, on joining Economic and Marketing Wing of Agriculture Department, would get the lowest position in the cadre.
10. With regard to the plea taken by respondents Nos. 3 to 5 in their written statements that seniority so awarded to the appellant was through a fake document maneouvered by some Section Officer, we do not find any such evidence on the record to accept this contention. In view of the above we have no hesitation to repel this argument as being without any foundation.
11. With regarding to the objection of limitation in this case, we have examined the record and find that the appellant wasted no time in filing the representation against the cancellation of his seniority but the same remained un-answered till 1981, when impugned order dated 4-4-1981, was passed and communicated to the appellant. The date of appeal i. e. 30-4-1981, reveals that the appeal was filed in time within 30 days of the final order dated 4-4-1981. In view of the above, we hold that the appeal is within time.
12. In view of the above analysis of the entire facts of this case and also keeping in view the fact that a decisive step was taken in granting the seniority to the appellant vide order dated 4-9-1977, we have no hesitation to, hold that cancellation of the same was absolutely unjustified and was an act, in violation of the fundamental principle of justice and principle of locu potentiae. If at all the Government wanted to revise its earlier order it was under obligation to give reason as well as to give chance to the appellant to contest his case before it. The very attitude of the respondents in this case also leads to an irresistible conclusion that although they had made tall and wild claims regarding the sanctity of Government order in favour of the appellant, yet when called upon to prove the same, they chose the safer course of absenting themselves, to save their faces.
13. The result is we accept the appeal, set aside the impugned order and direct that the appellant be placed senior to the respondents No 2 to 10 by restoring the earlier order dated 4-9-1977, so passed in favour of the appellant. However, parties will bear their own costs. To be communi-- cated to the parties.