S. ABDUL JABBAR KHAN (CHAIRMAN). - Muhammad Ramzan Chaudhry has bled this appeal under section. 4 of the Punjab Service Tribu--nals Act, 1974, against the order contained in letter No. Lab.
(1) 3 (2)/12 (PT-III) dated 27th November, 1979, of the Punjab Government, Labour Department rejecting the objections of the appellant regarding fixation of his seniority and also against the final seniority list of the officers (Grades 18 and 19) of the Directorate of Labour Welfare as on 26th November, 1979.
2. By virtue of this appeal he has prayed that the impugned order contained in the letter so mentioned above be set aside and the order placing the respondents senior to the appellants be declared without lawful authority as well as illegal. The appellant has impleaded M/s. S.A. Naeem, Mirza Habib Hayat, Mushtaq Hussain, M.A.H. Beg, Ghulam Mahmood Khan Falki, Khalid Naseer Ahmad Khan and Secretary to Government of the Punjab, Labour Department, as respondents.
3. Brief facts of the case are that the appellant joined as Labour Officer on 1st August, 1969, through the West Pakistan Public Service Commission, whereas respondents S. A. Naeem on 27th February, 1963 (ad hoc basis) regularised on 24th December, 1968 Ghulam Mahmood Shah Falki on 27th October, 1969, Khalid Naser Ahmad Khan on 1st November, 1969, Mirza Habib Inayat on 18th June, 1972 (ad hoc) and was regularised on 24th December, 1968, Mushtaq Hussain on 25th May, 1964 (ad hoc) and was regularised on 24th December, 1968 and M. A. H. Beg, on 24th December, 1968.
After the dismemberment of One Unit the seniority list was published by the Provincial Government in which the names of the appellant and Ghulam Mahmood Shah Falki were omitted. They filed and appeal under section 4 (1) of the West Pakistan Civil Services Appellate Tribunals Ordinance, 1969. Learned Tribunal was pleased to accept the appeal vide its order dated 30th July, 1971, and was pleased to observe "it was the allocation which was to determine their seniority in the region of allocation and the right of promotion." The Tribunal further gave direction to- the competent authority to include the names of the appellant and other in the seniority list of the region of allocation within 3 months. In January, 1970, some vacancies of Assistant Directors of Labour were to be filled by promotion. Respondents were promoted as Assistant Directors Labour Welfare while appellant was not promoted as he lacked 3 years experience as Labour Officer. However, the appellant was also promoted as Assistant Director on 19th April, 1973. It may be mentioned here that respondents Nos. 1, 2 and 3 were promoted as Assistant Directors on 7th January, 1970, on regular basis while Respondent No. 4 as promoted as such were. f. 20th May, 1972 and Respondents Nos. 5 and 6 were promoted alongwith the appellant on 19th April, 1973. S. A. Naeem respondent stood promoted as Deputy Director were. f. 11th June, 1973 whereas all other Respondents were promoted in the months of May and June, 1976 but earlier than the appellant who was promoted on 23rd December, 1976, as Deputy Director. The Provincial Govern--ment issued a provisional seniority list of Deputy Directors Annexure `F' on 28th January, 1979, in which the appellant was shown junior to Respon--dents Nos.1 to 6. This gave a cause of grievance to the appellant who filed a representation against the said seniority list. However, the matter stood concluded on 27th November, 1979, when the appellant was told that his representation has not succeeded and the respondents would remain senior to him. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned counsel for the respondents, learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance. It has been argued on behalf of the appellant that the list of 1979 was violative of all the cannon of natural justice as the, appellant was not heard in person at the time of disposal of objections. It has been further argued that the earlier pro--motion of the respondents as Deputy Directors was in the exigencies of the Department and thus could not be equated with regular promotion. Learned counsel for the appellant has vehemently argued that as the appellant was declared senior in the list prepared by the Public Service Commission, therefore, he would be deemed to be senior as a Labour Officer and would carry that seniority alongwith him as Assistant Director as well as Deputy Director because he was never superseded by his colleagues.
5. On the other hand learned counsel for the respondent has taken preliminary objection by submitting that the appeal was not maintainable under section 4 (1) of the Punjab Service Tribunals Act, 1974, as the appel--lant had not exhausted the remedy available to him under section 21 (2) of the Punjab Civil Servants Act, 1974. This point was further elaborated by submitting that the orders so passed in this behalf was by the Secretary Labour Department who was subordinate to the Chief Secretary, therefore, revision should have been made to the Chief Secretary within 60 days of the said order.
6. With regard to the merits of the case it has been submitted that the seniority so claimed by the appellant on the strength of the list formu--lated by the Public Service Commission was misconceived on the ground that the appellant as well as respondents were allocated to different regions and had to contest their seniority in the said region and were entitled to avail the chance of promotion at such places. Learned counsel has further emphasized this point by submitting that in accordance with the' provisions contained in sub-rule 2 (c) of rule 6 of the West Pakistan Labour Welfare Service (Class I) Service Rules, 1969, promotion to the rank of Assistant Directors were to be made on the basis of strength of Regional Sub-cadre, therefore, it would be hollow claim to say that the appellant . Should have been promoted on the strength of joint seniority list of the entire service. Learned counsel has further pointed out that there was some confusion to the final seniority list in which date of regular appointment of the respondents S. A. Naeem as Assistant Director has been shown as 3rd September, 1974, whereas factually he was regularly appointed on 7th January, 1970, and requested that the same may be" corrected. It has been further urged that seniority of a civil servant counts; towards seniority from the date of appointment in that grade as provided in section 7 (2) of the Punjab Civil Servants Act, 1974. As the respondents were regularly appointed much earlier than the appellant, therefore, they have been rightly considered senior by Respondent Deptt. With regard to the legal objection of the appellant that he should have been heard at the time when his objections were being considered by the Government. Learned counsel has pointed out that section 3 of the Punjab Civil Servants Act, 1974, does not specify that the appointing authority should give personal bearing to each person before finalizing the seniority list.
7. We have given our anxious thought to the arguments so advanced by the parties and have carefully checked the dates of appointments of the appellant as Labour Officer vie-a-vie the respondents. We have already given these dates in the earlier part of our judgment and we have satisfied ourselves that these are correct according to the record of this case so produced before us. From these dates it is quite obvious that the appel--lant Mohammad Ramzan Chaudhry was appointed Labour Officer on regular basis from 1st August, 1969, and thus would be junior to the contesting respondents by virtue of their regular appointment which are definitely the earlier dates than that of the appellant. The record of this case reveals that when the time came to fill certain vacancies of Assistant Directors Labour Welfare, it was found that the appellant who had joined as regular appointee on 1st August, 1969 was lacking requisite qualification which demanded at least 3 years service as Labour Officer, therefore, he was not promoted and thus left behind his colleagues. On the other hand Respondents Nos. 1, 2 and 3 were promoted as Assistant Directors Labour Welfare on 7th January, 1970, on the recommendations of the Provincial Selection Board approved by the Governor. Similarly Res--pondent No. 4 was promoted as Assistant Director Labour Welfare on 20th May, 1972 and Respondents Nos. 5 and 6 and the appellants were promoted as Assistant Directors were. f. 19th April, 1973. These pro--motions were made in accordance with the S&GAD Circular No. SOIV (S&GAD) 16-14-64 dated. 1st October, 1969 which provides that service in "ad hoc capacity" will count as experience for the purpose of minimum qualifications of a post. Similarly on the basis of 3 years service as Assistant Director Labour Welfare as required under the rules Respondent No. I was promoted as Deputy Director Labour Welfare from 11th June. 1973 on the recommendation of the Selection Board. It would be useful to mention at this stage that the appellant had only 2 months service as Assistant Director Labour Welfare and thus was not eligible for promotion. In this way in the seniority list of 1974, respondent No. 1 was rightly shown among the Deputy Directors Labour Welfare. However, in this list the name of the appellant was shown amongst the Assistant Directors Labour Welfare and he did rank senior to respondents Nos. 2 to 6. According to the record of this case we also find that when the case for promotion to the rank of Deputy Director came before the Provincial Selection Board Messrs Ghulam Mahmood Shah Falki, Mirza Habib Inayat, Mushtaq Hussain, M.A.H. Beg, were approved as Deputy Directors Labour but the case of the appellant was deferred by the said Provincial Selection Board. Subsequently the Provincial Selection Board considered the selection of the appellant and approved the selection but the Board did not give retrospective effect to the promotion of the appellant, therefore, he would be considered as Deputy Director Labour Welfare were. f. 23 December; 1976.
8. All these facts so recounted in the earlier part of our judgment, would show that the appellant was junior to all the contesting respon--dents except Ghulam Mahmood Shah Falki Respondent No. 5 and Khalid Naseer respondent No. 6 as Labour Officer and was senior to all the contesting Respondents except Mr. S. A. Naeem as Assistant Director. This fact has been admitted in sub-para. 'V' of the parawise comments signed by the Secretary to Government of the Punjab, Labour Depart--ment. However, it cannot also be denied that the Promotion Committee who deferred therd case of the appellant, found his C.R. Not upto date and did not give retrospective effect to the promotion .Of the appellant when they ultimately promoted him on 25th November--- 1976. May it be so, the fact remains that the appellant would retain his seniority over respondents Nos. 2 to 6 in the rank of Deputy Directors on the strength of section 7 (2) of the Punjab Civil Servants Act, 1974, which lays down as under :---- "Seniority in the grade -to which a civil servant is promoted, shall take effect from the date of regular appointment to the post and grade provided a civil servant who was selected for promotion to higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
It has also not been disputed that the appellant was ever superseded when his case was considered along with Respondents Nos. 2 to 6 and what happened was that the Promotion Committee deferred his case for, want of complete record. In these circumstances, the impact of section 7 (2) read with rule 8 Explanations 2 and 3 to the Punjab Civil Servants) (Appointments and Conditions of Service) Rules, 1974, will be fully applicable in his case.
9. In view of the above although the appellant has got no case against Respondent No. 1 (S. A.
Naeem) yet be will be deemed senior to all the Respondents Nos. 2 to 6. However, this Tribunal has no power to interfere with the Waiter pf promotion so granted to hiscolleagues by the Promotion Committee. We, therefore, proceed to accept the appeal in the terms as indicated above. However, there will be no order as to costs.