1. S. A. MAHMOOD (CHAIRMAN).-By this appeal under section 4(1) of the Civil Services (Appellate Tribunal) Ordinance, 1969, Mr. Rafiq Ahmad Qureshi, appellant, seeks to establish his seniority over Mirza Muhammad Saeed, Messrs Muhammad Akhtar Qureshi, M. H. Tirmizi, M. A. R. Aziz, Mr. S. S. Kirman, Mian Abdul Hamid, Sh. Abdul Rashid, Mian Shamim Ahmad, Irshad Ahmad, S. Muhammad Ayub Shah, Mian Irshad Nabi, Nasir Ahmad, Muhammad Tahir, Muhammad Saadat Ali, S. H.
2. Mahmud, Ch. Altaf Hussain, S. M. Niaz, and M. Afzal Cheema, respondents 3-20. He prays that the seniority list published in the Gazette of West Pakistan, dated 4-6-1970 be quashed holding that it was drawn up against the P. S. E. I. Rules of 1941, and that he was senior in the rank of Executive Engineer over the respondents: He also prays that the Department may be directed to issue orders of confirmation of the appellant as Superintending Engineer. As to the last prayer, it may be stated right away that we have no jurisdiction to make the order of his promotion/confirmation as Superintending Engineer, though it may follow on the establishment of his seniority, coupled with his selection as Superintending Engineer.
3. Mr. A. G. Humayun, appeared on behalf of respondents 1 and 2. Of the respondents Mirza Muhammad Saeed and Mr. Nasir Ahmad having retired, Mr. Shamim Ahmad being on leave preparatory to retirement and Sh. Abdul Rashid and Mr. Muhammad Afzal Cheema having been removed from service their names have been struck off. Mr. Muhammad Tahir has been deconfirmed, and is no more a confirmed Execu--tive Engineer.
4. The historical background in which the seniority list of 4th June 1970, has been published and the interpretation by the Supreme Court and the High Court of Rule 15 of 1941, Class I, Rules will be found detailed in our order in the appeal by Mi an Bashir Ahmad (Case No. 489/230 of 1970). Whatever, is stated there may be read as a part of this order.
5. We have only to state here that in the impugned seniority list, the appellant appears at serial No.
39. He claims that he should be placed immediately above Mirza Muhammad Saeed, who has been shown at serial No. 14.
6. Mr. Rafiq Ahmad Qureshi, appellant was born on 2-12-1923, was appointed as Temporary Engineer on 5-2-1945, was taken as Assistant Engineer in PSE-II on 6-7-1947, was promoted to PSE-1 Jr. on 26-2-1952, began to officiate as Executive Engineer on 1-7-1950, and was confirmed with effect from 30th June 1954.
7. As held by us in other cases seniority in dispute being in the rank of Executive Engineer, it is determined by the date of confirmation as Executive Engineer, in accordance with the rule of practice prevailing in the Department as stated before us and as confirmed from the official files.
8. We may mention that Rule 15 which is relevant for determining inter se seniority of Class I officers does not in itself contain anything specific for determination of seniority in the rank of Executive Engineer. The appellant and respondents (except Mr. S. H. Mahmood) having all been confirmed on one and the same date viz. 30-6-1954, the date of confirmation does not serve as a measure for determination of their seniority. The only alternative is to determine seniority in accordance with their seniority in the rank of Assistant Executive Engineer in Class I Jr. in the case of Mr. S. H.
9. Mahmood. His promotion as Executive Engineer was postponed by orderdated 8-1-1955, and when notify--ing his date of confirmation as Executive Engineer from 8-1-1956 his basic seniority was restored as has been held by us in the case of Mr. Altaf Hussain. That order may be read as a part of this order. Therefore, even in his case, the seniority vis-a-vis the appellant will have to be determined on the basis of seniority in Class I Junior.
10. Examining the service particulars of the appellant and those of the respondents for determination of seniority in Class I Junior the following position clearly emerges:- Whereas the appellant was appointed to PSE-11 as Assistant Engineer on 6-7-1947, Messrs M. A. R. Aziz, S. S. Kirmani and Mian Abdul Hamid were appointed as Assistant Executive Engineers in Class 1 on that date. They are all direct recruits. They are thus senior to the appellant. Besides the appellant has only three years and five months of service in Class II so that he could count one year and five months for seniority in Class I Jr. and as such these officers namely Messrs M. A. R. Aziz, S. S. Kirmani, Mian Abdul Hamid rank are senior to him under Rule 15 (2) of the Punjab Service of Engineers Class I (Public Works Department Irrigation Branch) Rules 1941.
11. Mr. Muhammad Akhtar Qureshi and Mr. M. H. Tirmlzi were taken in Class 11 on 8-1-1947 and 26-12- 1946. They were appointed to Class I Jr. on 23rd August 1950. Thus they each had three years and seven-months and three years and 8 months of Class II service less two years to their credit for purpose of senior--ity in Class I Jr. Therefore when appointed in Class I on 23rd August 1950, they were senior to the appellant, who was appointed in Class I Jr. on 25-12-1952. Mian Shamim Ahmad, Mr. Irshad Ahmad and S. Muhammad Ayub Shah and Mian lrshad Nabi, Mr. Muhammad Saadat Ali, Mr. S. .H. Mahmood, Ch. Altaf Hussain and Mr. S. M. Niaz are all direct recruits in PSE-1 Jr. They did not have any Class II service to their credit; therefore, they count their seniority from the date of appointment as Assistant Executive Engineers. These dates are 6-7-1947, 6-7-1949, 10-8-1949, 15-8- 1949, 6-7-1949,16-8-1949, 23-8-1950, 23-8-1950, 23-8-1950, 28-8-1950, 23-8-1950, and 23-8-1950.
12. As the appellant is entitled to credit two years, seven months and 20 days of Class II service in Class I Junior, his date of appointment to that Class would be deemed to be 6-7-1951. Therefore, respondents Mr. Muhammad Akhtar Qureshi, Mr. M. H. Tirmizi, M. A. R. Aziz, S. S. Kirmani, Mian Abdul Hamid, Mr. Shamim Ahmad, Mr. Irshad Ahmad, Mr. S. H. Mahmood, Mian Irshad Nabi, Mr. Nasir Ahmad, Mr. Muhammad Tahir, Mr. Muhammad Saadat Ali rank senior to him in Class I Junior. They would retain their seniority over the appellant when they were all confirmed on the same date. On this calculation Ch. Altaf Hussain and Mr. S. M. Niaz who were appointed to Class I Jr. on 23rd August 1950, are also senior to him.
13. The seniority of the appellant shown in the seniority list is challenged on behalf of the appellant by Mr. I. U. Haqe, Advocate on the ground that seniority not having been settled under the 1941-Rules, has to be determined under role 15 of the West Pakistan Irrigation Engineers Service (Class 1) Rules, 1967. It is contended on behalf of the appellant that if seniority is deter--mined on the rule of continuous officiation as provided in rule 15, the appellant becomes very much more senior than he is shown in the seniority list, Thus the argument is that his seniority should count from 1-7-1950 when he began to officiate as Executive Engineer.
14. It is not correct to say that seniority of the Irrigation Engi--neers was not determined under the 1941-Rules. Several gradation and seniority lists were printed and published from time to time.
15. There was one list issued in March 1962, which was challenged by Mr. Khalilur Rehman and 9 others including the appellant by Writ Petition No. 8 of 1962, which was dismissed on 4-6-1962. Another seniority list was published by the Provincial Govern--ment in September 1962, That list was no doubt quashed by the High Court of West Pakistan at Lahore on 17-7-1964 in Writ Peti--tion No, 125 of 1960 by Syed Hamid-ud-Din Ahmad. Seniority having previously been determined under the1941- Rules, that seniority was served under sub-rule (3) of rule 15 of the 1967 --Rules when it provided notwithstanding anything contained in sub-rule (1) the persons absorbed in the service under clause (a) of rule 4 shall retain their inter se seniority assigned to them before the coming into force of these rules in accordance with rules, or orders etc. then in force. Clause (a) of Rule 4 refers to persons holding in a substantive capacity immediately, before the coming into force of these rules, posts included in the cadre of the service. The parties to this case fall within this category, and, therefore, their seniority was saved by subsection (3) o section 15. Besides the 1967-Rules did not intend to be retros--pective in operation and had to be applied prospectively. Therefore, the seniority as on 13-10-1955, has to be determined under the 1941-Rules, which were then in force and which were not repealed by the 1967-Rules. For these reasons, we are unable to hold that the seniority of the appellant vis a vis the respondents has to be determined under the 1967 Class I Rules.
16. There is no criterion available in rule 15 of the 1941-Rules for determining inter se seniority of the appellant, vis-a-vis the respondents. It is possible, however, to decide the question of inter se seniority of the parties in this case on the basis of B the decision of the Supreme Court in the case of Mr. Minhas where promotions as Executive Engineer have taken place on the same date, which is the case here also, as the parties except Mr. S. H. Mahmood) were all confirmed as Executive Engi-- neers on the 30th June 1964, seniority in the next lower rank decided their seniority in the rank of Executive Engineer also.
17. In the case of Mr. Minhas before the Supreme Court it is not indicated whether his promotion as Executive Engineer was in substantive or officiating capacity. Therefore, the criterion which can determine seniority in the rank of Executive Engineer is either officiating or substantive promotion.
18. W e under--stand from the parties that the rule of seniority in the rank of Executive Engineer invariably followed by the Department is take the date of confirmation, i.e. substantive entry into the E grade and to determine seniority accordingly and not the date of officiation. There is no contradiction of this in any quarter. It being the case that departmental practice has been invariable followed for so many years in the Department, we have adopt the date of confirmation as Executive Engineer, i.e. substantive entry in the Bade as the basis of seniority and ignored the date of officiation, For the reasons stated above, there is no force in this appeal, which is dismissed with no order as to cost.