1. S. A. MAMOOD (CHAIRMAN).-By this appeal under sec--tion 4(i) of the West Pakistan Civil Services (Appellate Tribunal) Ordinance, 1969, Mohammad Arshad claims seniority over-Mr.Abdur Rauf, Jafar Hussain, Mahmoodul Hassan, Muhammad Amin and Muhammad Iqbal, respondents Nos. 3 to 7, as officiating Assistant. The brief facts out of which this appeal. arises are that the appellant joined service as Clerk II. Grade or Junior Clerk in the Punjab Irrigation Secretariat at Lahore on 15- 3-1948 was confirmed as Junior Clerk on 26-10-48, was promoted as Officiating Clerk I Grade on 10-9-1952, and was confirmed as such on 29-9-1955. None of the respondents 3 to 7 is a confirmed Senior Clerk. Therefore, undoubtedly the appellant was senior to respondents 3 to 4 under rule 9 of the Punjab Public Works Department. Irrigation Branch (Secretariat) Clerical Service Rules, 1943. The appellant was promoted as Officiating Assistant on 21-2-1956 and so were respondents 3 to 7. They continue as officiating Assistants. The particulars of the appellant and respondents are stated below in the following table:--- S. No.NameDate of appointment as Clerk 2 GradeDate of Confirmation as Clerk 2 GradeDate of officiating appointment as Senior ClerkDate of Confirmation as 1 Grade ClerkDate of actual promotion as Officiating Assistant nd nd st 1.M. Mohd.
2. Arshad, appellant.15-3-48 26-10-48 10-9-52 29-952 21-2-56 2.M. Abdur Rauf (2) respondent 3.15-3-48 13-4-49 10-9-52 Nil 20-2-56 3.M. Jaffar Hussain, respondent 44-1-52 4-1-52 6-8-56 20-8-56 4.M. Mahmudul Hassan respondent4-8-48 10-1-52 28-10-53 15-3-57 5.M. Mohd.
3. Amin (2) respondent 6.28-10-48 5-2-53 1-3-54 18-10- 6.M. Mohd.
4. Iqbal (2) respondent 7.28-6-49 18-5-53 30-10-54 7-2-58 As a result of Integration of the Provinces of West Pakistan, the Punjab P.W.D. Irrigation Secretariat was abolished and its staff was transferred on 9-11-55 by the Chief Engineer, West Pakistan to the newly created offices of Chief Engineer, irrigation West Pakistan and Deputy Chief Engineers, Lahore, Lyallpur, and' Multan Regions. While the appellant was assigned to the office of the Deputy Chief Engineer; Lahore Region, the respondents 3 'to 7 remained in the office of the Chief Engineer, Irrigation, West Pakistan.
5. On 30th of- April 1962, when the office of the Chief Engineer, West Pakistan was abolished, its staff was assigned to different offices, and the appellant was transferred to the office of Chief Engineer, Lahore Region, as officiating Assistant w. e. f. 1st May 1962. From that date, the appellant and respondents 3 to 7 were in the same regional office. The offices of the Deputy Chief Engineers were abolished and substituted by regional offices headed by the Chief Engineers.
6. On 1-5-1969 a seniority list was published in which the appellant war; shown junior to respondents 3 to 7, although in the classified list of the Provincial Cadre, corrected up to 1-1-1955, he was shown senior to them. The seniority fixed in the seniority list on 1-5-1969 was based on presumptive dates of promotion, on supposed seniority of the parties. Another seniority list was published on 4-3-1970, but this seniority list has since been withdrawn by the Chief Engineer, Irrigation, Lahore by his letter dated 11th August 1970. While rule 9 of the Punjab P. W.D. Irrigation Branch (Secretariat) Clerical Service Rules provided the date of confirmation as a rule of seniority, the West Pakistan Irrigation'
7. Department Ministerial Service (Regional Offices) Rules, 1962 provide the date of continuous appointment as the rule of seniority. These Rules did no specifically supersede the 1943 Rules, but- being later rules supersede the earlier rules to the extent of inconsistency and repugnancy. There is no dispute between the parties that by operation of 1943 Rules, the appellant was senior to respondents Nos. 3 to 7 as he was confirmed as a Senior Clerk, when none of the respondents 3 to 7 was so confirmed. It may also be mentioned here that though appellant and respondent No. 3 joined service on the same day, the former was senior to the later by reason of age. Respondent No. 4 had joined earlier as second Grade Clerk, but in a different cadre and office. He has become junior to appellant, who has since been confirmed as Senior Clerk. The question for determination is whether the appellant is senior to respondents Nos. 3 to 7 in the rank of Assistant. All of them are Officiating Assistants. It has been argued on behalf of respondents 3 to 7 that the cadre became separate with the creation of offices of the Deputy Chief Engineers. The Senior Clerks had to be promoted in the vacancies of Assistants in the respective area. They should get seniority from the dates each vacancy of Assistant arose within the office of the Chief Engineer and the offices of the three Deputy Chief Engineer. We have examined two volumes of file of Case No. 226 of 1955 and the two volumes of Case No. 230 of 1955 and Case No. 111 of 1914/57/B and find that the Chief Engineer, West Pakistan was consistently passing transfer orders of ministerial Government servants of all ranks from the jurisdiction of the one Deputy Chief Engineer to the other Deputy Chief Engineer's jurisdiction or to his own office and vice versa. Such transfers were ordered in the ranks of Superintendent, Head Assistant, Assistant, Clerks Grade I and Grade II. Thus in practice, these posts were interchangeable.
8. A perusal of file of Case No. 11 I -B of 1914 shows that a joint list of Clerks Grade I ex-Punjab for promotion as Assistant was maintained by the Chief Engineer of West Pakistan from 28th January 1956 to 30th April 1969. No separate lists were maintained for the three offices of the Deputy Chief Engineers for this purpose. On this basis, the Chief Engineer of West Pakistan passed orders of promotions from the rank of Clerk Grade I to the rank of Assistant. Promotions were made on the basis of a joint seniority list by the Chief Engineer; West Pakistan. It clearly shows that the cadre of the Clerks Grade I remained joint till the regions were created as a result of re--organization on 1st of May 1962 and the appellant along with respondents Nos. 3 to 7 became members of the regional minis--terial service of Lahore Region. We hold that the cadre former Punjab Irrigation Department clerical strength remained jointfrom 14-10-55 to 1st of May 1962 in spite of the creation of different offices of Chief Engineer, West Pakistan and Deputy Chief Engineers of Lahore, Sargodha and Multan. The vacancies which occurred in the rank of Assistants in the offices of the Chief Engineer, West Pakistan and three Deputy Chief Engineers up to 30-4-62 had to be assigned on the basis of joint seniority of Grade I Clerks. Respondents Nos. 4 to 7 could not be given earlier dates of presumptive appointment .as Assistants on this basis, as they were Junior to the appellants senior Clerks.
9. We have also examined two Volumes of Case No. 111 of 1914/57-B in which the order of promotion of the appellant and Mr. Abdul Rauf, respondent No. 3 Assistant of the Office of Chief Engineer, Lahore, Was passed on 8-2-56. This order was passed by the Additional Chief Engineer (Administration)
10. West Pakistan, who had the delegated authority of the Chief Engineer, West Pakistan. The orders promoting the appellant and respondent No. 3 were also issued on the same day, i.e. 21-2-56. The later took over as Assistant on the 20th of February 1956, being at that time in the office of the Chief Engineer, West Pakistan and the appellant took over as Assistant on the 21st of February 1956, i.e. a day later, as he was in the office of Deputy Chief Engineer. Respondent No. 3 has argued that as the rule of seniority under the West Pakistan Irrigation Department Ministerial Service (Regional Offices)
11. Rules, 1962 provides the date of continuous appointment, he is senior to the appellant, as hetook over a day earlier. The relevant rule of seniority is as follows:-
9. Seniority.-(1) The seniority inter se of the members of the service in the various grades there of shall be determined-
(a) In the case of members appointed by initial recruitment in accordance with the order of merit assigned by the appointing authority; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection; and
(b) In the case ofmembers appointed otherwise, with reference to the dates of their continuous appointment therein; provided that if the date of continuous appointment in the case of two or more members of the service is the same, the older official in the next below grade, shall rank senior to the younger official or officials."
12. Explanation 1-If a junior official in a lower grade is promoted 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 this seniors m the fixation of his seniority in the higher grade.
13. Explanation II.-If a Junior official in a lower grade is pro--moted to a higher grade by superseding a senior official and subsequently that official is also promoted; the official promoted first shall rank senior to the official promoted subsequently.
14. Rule 9(1)(b) provides that if the date of continuous appoint--ment of two or more members of service is the same, the older official in the next below grade shall rank senior to the younger official or officials. The date of birth of the appellant is 1-1-1925 and that of the respondent is 1-4- 1925. The former is older and will thus rank senior to respondent No. 3.Secondly, he could not -take over as Assistant before the issue of promotion order.
15. In the written statement, objection has been raised that as the seniority list published on 4-3-1970 has since been with-drawn by the Chief Engineer, this appeal is pre-mature, but we see no force in this contention. The competent authority was required in November 1969 to publish a seniority list within three months of the Government letter dated 1-11-69, and if the competent authority has failed to publish a list, the right o appeal cannot be denied to the appellant by withdrawal of the latest seniority list. Cause of action having arisen to the appellant, he is entitled to have his seniority determined, which we have examined and pronounced upon.
16. Consequently, we hold that the appellant is senior to respondent No. 3 on the ground of age although they were promoted as Assistant on the same day. Respondents Nos. 3 to 7 cannot be given the benefit of presumptive appointment from an earlier date on the basis of vacancies which may have occurred in the office of the Chief Engineer and three Deputy Chief Engineers, as the ministerial cadre of the offices of the Chief Engineer, West Pakistan and the three Deputy Chief Engineers remained joint till 1-5-1962. All the promotions of Assistants were made before this date.
17. In view of this, the appellant gets seniority over respondents Nos. 3 to 7. We, therefore, accept the appeal, but leave theparties to bear their own costs.