1. S. A. MAHMOOD (CHAIRMAN):-The appellant is aggrieved of his seniority as assistant against respondents Nos. 4 and 5, who have been declared to be senior to him. The prays that he should be declared senior to them and given the benefit of rule 10.5 of C. S. R. (Pb.) Vol. 1, Part I, generally known as the Next Below Rule.
2. Mr. Muhammad Munir Butt appellant was appointed as Apprentice Clerk on 1-1-1938 in the office of the Deputy Commissioner, Amritsar. He was confirmed as such on 1-12-1940. He was confirmed as Junior Clerk on 2-2-1943.-He was promoted as officiating Senior Clerk on 13-9-1946. On Independence, he migrated to Sialkot and he was given the charge of Junior Clerk, although he had been officiating as senior Clerk at Amritsar.
3. He represented to the Deputy Commissioner, Sialkot on 5-11-1947 that as he was officiating as a Senior Clerk from 13-9-1946 in Amritsar he should be given an officiating chance as Senior Clerk, it was noted about this application that the facts stated in this application had been verified to be correct. The case was submitted to the A. D. M. by the office Superinten--dent with the remarks that he had by then been appointed as Naib Tehsildar for resettlement work by the Commissioner, Lahore Division. The question of his officiating-appointment as Senior Clerk did not arise. He suggested filling of the papers. This was agreed to by the A. D. M.
4. The appellant proceeded on deputation as Naib Tehsildar in the Rehabilitation Department on 20- 11-1947 and stayed there till 24-8-55. He proceeded on leave, rejoined the D. C's. Office on 16-7-1957 as officiating Senior Clerk. He was promoted as Assistant on 18-11-1958. He was confirmed as Selection Grade Clerk on 20-11-59 and as an Assistant on 1-9-61.
5. The particulars of respondent No. 4, Hakim Muhammad Zafar, are that he joined as Junior Clerk in D. C's. Office, Sialkot on 15-4-1944. He was confirmed as Junior Clerk on 6-5-1947. He was confirmed as Senior Clerk on 15-8-1947. He proceeded on deputation as Assistant in the Rehabilitation Department on 24-12-1948 and reverted to D. C's. Office on 4-4-1953. He was confirmed on this date as Assistant.
6. Respondent No. 5, Mr. Akhtar Ali, was appointed as temporary leave reserve Clerk in D. C's. Office, Sialkot on 18-10-39. He was confirmed as Junior Clerk on 1-8-44. He was confirmed as Senior Clerk on 15-8-1947. He was promoted as officiating Assistant in the Office of Assistant Director for Refugees ofJ. & K. on 4-4-1953, where he was on deputation. He was reverted to D. C's. Office on 31- 3-1956. The Service Book shows that he was reverted as Senior Clerk on 5-1-1960. He was confirmed as Selection Grade Clerk on 20-11-1959. No orders are available about his confirmation.
7. It has been urged on behalf of the appellant that he should have been given the benefit of promotion while he was on deputation as Settlement Naib Tehsildar under rule 10.5, C. S. R. (Pb.), Vol. I, Part I. for facility of reference, rule 10.5 is reproduced below:- "10.5 (i) A Government servant transferred to foreign service shall remain in the cadres or cadres in which, he was included in a substantive or officiating capacity immediately before his transfer. He may be given such substantive or officiating; promotion in those cadres as the authority competent to order promotion may decide. In giving promotion such authority shall take into account- (a)the nature of the work performed in foreign service, and
(b) the promotion given to juniors in the cadre in which the question of promotion arises.
(ii) In any individual ease the competent authority may grant a Government Servant, outside his cadre or cadres but in his own line, such promotion as it considers he would have got, had he not been transferred to foreign service.
8. Note l.-The words in his own line used in the above rule refer to posts which a Government servant may normally look for promotion in his own department or office.
9. Note 2.-This rule should not be interpretedin such a manner as to allow adventitious increments to a Government servant in foreign service merely because no might, had he remained in Government service, have been fortunate enough to secure promotion to a post outside the cadre of the service to which he belongs."
10. Respondent No. 4 was confirmed as Junior Clerk on 6-5-1947. Respondent No. 5 was confirmed as Junior Clerk on -1-8-1944 and the appellant was confirmed on 2-2-1943. Accord--ing to rule 16 of the Punjab District Subordinate Service Rules, 1942, the seniority of members other than Superintendents in each cadre of the service was to be determined by the dates of their substantive appointment to such class. In view of this, the appellant is senior to respondents Nos. 4 and 5 as Junior Clerk, but instead of considering the claim of the appellant under rule 10.5, C.S.R., quoted above, the two respondents were confirmed while he was on deputation. Secondly it has been urged that he was officiating as Senior Clerk at Amritsar. The general policy followed by the Punjab Government for the refugees of the East Punjab who migrated to West Punjab was that they were given the same posts from which they came, but the appellant was appointed as a Junior Clerk in Amritsar. Thirdly he served in World War II from 18-12-1940 to 19-8-1946. He made a representation that he should be given benefit of this service, but no orders were passed on his representation. He claims that had he been given the benefit of his appointment as Senior Clerk, he would have been appointed as officiating Senior Clerk at Sialkot and would have been confirmed earlier as such, because, respondents Nos. 4 and 5 were Junior to him. Moreover, if he had been given-the War Service benefit, he would have been confirmed in 1938 as Junior Clerk. In view of this he would have been promoted much earlier as Senior Clerk as against both the respondents.
11. It has been argued on behalf of respondents Nos. 1, 2 and 3 an that the appellant was not getting the pay of Senior Clerk at Amritsar and was therefore, treated as a Junior Clerk on the basis of the pay last drawn by him, but it has been explained by the appellant that according to the letter issued on the 23rd November 1946, by the Assistant Secretary to Government, Punjab, Revenue Department to all Commissioners, the benefit of pay granted to War Service Men by 2-2-43 was withdrawn from 1-12-1946. Prior to this he was getting the pay of the Senior Clerk. This restriction was abolished on 30-12-1950 by Assistant Secretary to Government Punjab Revenue Department but in spite of these instructions, he was neither paid the salary of senior Clerk nor was he given the benefit of appointment as Senior Clerk which was the general policy of the Punjab Government to appoint refugees against the same posts which were held by them in East Punjab, before Independence. The issue involved in this case is the seniority of the appellant and the two respondents. In view of this, all matters which are material for the fixation of seniority of the parties have to be taken into consideration. The fact that the Government policy was to appoint persons against same posts which were held by them in East Punjab was not implemented in this case, did affect his seniority adversely and needs rectification.
12. It has been argued on behalf of respondents 1 to 3 thataccording to rule 12 of the Punjab District Subordinate Services, Rules, 1942, all posts in the services are selection posts and no member of the service shall be deemed to have had promotion withheld by reason of his not being selected. It has been elucidated that as the posts were selection posts, nobody could claim automatically the right of promotion while he was ondeputation. The general provision under rule 10.5, which is generally called the Next Below Rule, could not apply in this case, because the promotion was by selection.
13. Brit we are unable to agree with this interpretation. We have examined the files pertaining to the promotion of Senior Clerks in the year 1950. There were six vacancies of Senior Clerks in the office note, it was mentioned that Mr. Muhammad Munir Butt, Settlement Naib Tehsildar and a Refugee Clerk in this office had applied for his appointment as Senior Clerk. The Superintendent noted on 26-2-50 that the claim of all the applicants contained in the katcha cover placed below and other officials in Bill Clerk's note have been considered and he recommended 10 persons in which the name of the appellant does not appear and the D. C. merely said "I agree". The note of the Superintendent does not discuss the merits of the: claim of the appellant. His claim was that according to the general policy of the Punjab Government he deserved to be posted as Senior Clerk Independence, but he was posted as Junior Clerk. This aspect of tie case was not discussed. If it was intended not to apply title Government policy, there should have been a speaking order by the competent authority stating why it was not proposed to do so, We are unable to agree that the competent authority applied its mind on this issue and passed orders about his appointment as Senior Clerk on the basis of his appointment as officiating Senior Clerk at Amritsar.
14. We cannot also agree with the argument that his merits were considered at the time of confirmation of Senior Clerks and he was not found to be fit. We have examined his Character Roll.
15. We do not find any mention in the office note that the Character Roll of the appellant was ever examined on merit. In fact, the Character Roll has entries up to 24-10-46 and next entry relates to the year 1959. In view of this, it cannot be said that his merits were examined at the time the confirmation were made and he was ignored on merits.
16. He made a representation to the Commissioner, Lahore Division (Annexure 'G') about his seniority among Assistants. A reference was made by the Commissioner, Lahore Division to the Board of Revenue (Annexure 'B') in which he stated that it bag been proved beyond any shadow of doubt that the petitioner justified in his claim and aggrieved as the mandatory provisions is of rule. 10.5 of C. S. R., Vol. I, Part I were totally ignored in his case, besides debarring him of his six years Military Service. Hisrepresentation against this grievance was rejected by the Commissioner in 1957. He desired that he should be allowed to review the orders of his predecessor. He proposed that the appellant should be given pro forma seniority as assistant w.e.f. 23-12-1948 in view of the fact that Hakim Muhammad Zaffar, his next junior, was promoted as assistant on 24-12-1948. The Board of Revenue in its letter dated 27-8-1970, did not agree to his proposal, As a result of this, the Commissioner, Lahore Division informed the appellant that the orders already passed by the D. C.
17. (Annexure 'E') promoting his Juniors substantively earlier cannot be upset. He is now aggrieved by this. We asked the representative of the D. C. 's Office, Sialkot to produce any orders of Ds C. Where he had used his discretion on the Application of rule 10.5 Of C. S IL on the representation of the appellant, bait we have been only referred to the case in which his application for absorption as a Senior Clerk was considered on the basis of his officiation as such at Amritsar. Thus his claim tinder rule 10.5, C S. R., was never examined.
18. It has beep argued that according to rule 2.21 of C. S. R. the appellant was not In foreign, service and rule 10.5 does not apply. Firstly, the appellant was drawing his pay from the Provincial Government which is not mentioned in the nature of posts which are termed not to fall within the definition of foreign services, as given in rule 2.21. The word "Foreign Service" cannot be construed in a limited sense. The rule reflectsis the general principle that if a person is sent on deputation, he cannot be made junior to his juniors by promoting the latter in his absence. This protection is essential otherwise no Govern--ment servant would ever proceed on deputation, if by doing so he has to lose his seniority in his parent department. The rule has to be applied to this case. His claim should have been considered when a vacancy had arisen and his juniors were con--sidered especially for a substantive vacancy.
19. The benefit of war service has not been given to the appellant. This also requires examination by the competent authority and in accordance with the latest legal pronouncements about the benefit of war service to persons who were appointed against reserved vacancies.
20. We are of the view that the claim of the appellant about his appointment as Senior Clerk on migration to Sialkot on the bass of his officiation as such at Amritsar has not been considered in the light of the policy on this subject. Secondly, his merits were not considered while he was on deputation as Settlement Naib Tahsildar for his promotion as Senior Clerk. Thirdly, his claim for war service benefit has not been examined. We would, therefore, direct the competent authority to re- examine the entire, case, express specific opinion about these three issues and re-fix the seniority of the parties. The appeal is disposed of accordingly.