1. S. A. MAHMOOD (CHAIRMAN).-This appeal under sec--tion 4(1) of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969 is by Mr. S. A. Ahmed, Officer on Special Duty (Industrial Estates)/Joint Director, Directorate of Industries and Commerce, by which he claims seniority over Malik Nawazish Ali and Masood Hussain Shah, Additional Directors, Directorate of Industries and Commerce, respondents 2 and 3. Respondent No. 2 is represented by Malik Shaukat Ali, Advocate and Syed Masood Hussain Shah by Mr. Muhammad Ismail, Advocate. The Government of West Pakistan is represented by Mr. Muhammad Younas, P. P. The appellant was represented by Dr. Tasuddaq Hussain.
2. The service histories of the appellant and respondents 2 and 3 may now be stated. The appellant was selected by the Public Service Commission and directly recruited against a permanent post in Senior Class I as Additional Weaving Superintendent for a period of three months temporarily that the scale of Rs. 600-40---1000. He was given additional charge of Textile Advisor for two years, from 26th March 1951, On 20th December 1952, he was confirmed as Weaving Superintendent of Government Printing and Demonstration Centre, shahdara w. e. f. 8-6-1951. On 16-3-1953, his pay- scale was to Rs. 600-40-1,000-50-1,150. It was again revised on 9-3-1953 and raised to 600-40- 1,000/50---1,200, and his starting salary was fixed at Rs. 880.An integrated seniority list, Annexure `D' as on 15-10-1955 was circulated, in which he was placed at serial No. 5, while respon--dent No. 3 was shown at No.7. Respondent No. 2 was not shown in this list, as he was hen an employee of the Central Government. The appellant objected to Capt. K. A. Sheikh and Sh. Fazal Elahi and others being shown senior to him in this list. On 2-1-1956, he was sent on deputation as General Manager, 1furewa-la Textile Mills with a deputation allowance of 40 per cent. On 10-6-1958, the designation of his office was changed to that of General Manager, Government Weaving and Finishing Centre, Shahdara. In 1960, he became General Manager, Fauji Textile Mills, Jhelum with a deputation allowance of 25 per cent. On 10-8-1964, he was appointed officer on Special Duty (Industrial Estates where he remained up to 3-5-1969, when he proceeded for practical training in U. K., under the Colombo Plan, returning from U. K. on 18 December 1969. On 20th December 1969, he was appointed Joint Director (Research) in the Directorate of Industries. On 1-7-1970, he was again posted as Joint Director (Development) in the Headquarters Office of the Director of Industries. He has been led to file this appeal because in the civil list and in the tentative seniority lists as on 1-1- 1968, prepared and circulated y the Department of Industries, he is shown junior to respon--dents 2 and 3. The seniority in dispute is as Deputy Director and Joint Director.
3. Malik Nawazish Ali, respondent No. 2, was appointed as Deputy Assistant Controller, Purchase in Junior Class I by Government of India on 18-5-1942. He became Assistant Director (Disposal) in Class I in the scale of 450-30-750 w. e. f. 3-8-1946. He was made permanent and confirmed as Assistant Director in Class I w. e. f. 15-8-1947 by Notification, dated 1R-3-1955. On 1-1-1949, he was appointed as Deputy Director (Supply) in Class I senior in the scale of 750-35-925/50-1,275 against a regular post and was confirmed as Deputy Director w. e. f. 18th March 1955. As a result of abolition of the Depart--ment of purchase in the Government of Pakistan, the services of Malik Nawazish Ali were transferred to the Provincial Govern--ment by Gazette Notification, dated 27th November 1959, in which he was notified as officiating Deputy Director (Supply), Industries Department, but the entry was corrected in the West Pakistan Gazette of 4th December 1959, and he was appointed Joint Director w. e. f. 19/20th November 1959. He was promoted as Additional Director of Industrial (Supply Wing) from 9-7-1969. He, therefore, ranks higher than the appellant. He was promoted to Class I senior on 1-1-1949 before the appellant was appointed to Class I senior. He was promoted as Joint Director nearly 10 years earlier than the appellant and is now Additional Director of Industries.
4. Syed masood Hussain Shahwas taken in Class II as stores Officer in the Directorate of Industries on 7-4-1943 acid w--s promoted to junior Class I as Store Purchase Officer on 23rd November 1946. He was taken in Class I Senior in the scale of Rs. 600-40--1,000/50-1,150 on 19-11-1953 i.e., subse--quent to the appellant, and was confirmed w. e. f. 14-11-1955. He was appointed as Joint Director Industries before the appellant, and Additional Director of Industries on 11-7-1969. It is probably because Syed Masood Hussain Shah was' promoted earlier as Joint Director and is now Additional Director that he was shown senior in the civil list and the tentative seniority lists as on 1-1-1968.
5. The appellant claims seniority over respondent No. 2 of the ground that he still remains an employee of the Central Govern--ment and is on deputation to the Provincial Government, still retaining his lien on a permanent post in the Central Government. His contention is that he can not be promoted to a rank higher than Deputy Director by the Provincial Government i.e., as Joint Director and Additional Director, without his having been soil promoted by the Central Government.
6. This--contention is not supported by any rule. We cannot, therefore, accept it. It is true that respondent No. 2 still retains his lien in the Central Government, because he was confirmed as Assistant Director and Deputy Director in the Central Government, but has not been provided with a perm4nent post by the Provincial Government. Since he has been posted against a temporary post, his lien has had to be maintained in the Central Government under the rules, but there is no doubt whatever that he is being treated far all intents and purposes as a Provincial Officer. He is being shown as a Provincial Officer, and there is no intention of reverting him to the Central Government. His parent Depart--ment in the Central Government was abolished and the Government of West Pakistan decided to absorb him. In this connection letter No. SOXX (S & G D)
7. 13-1-63 dated 5th April 1963 may be seen. In these circumstances, we have n JA that he is, for all intents and purposes, a Provincial Officer, entitled to rank in seniority with the other Provincial Officers. Indeed if he were not a Provincial Officer, the appellant could not ask us and we could notth determine his seniority under the Ordinance. The appellant is unable to make out a case that he is senior to Malik Nawazish Ali, respondent No. 2. dismiss is appeal qua respondent No. 2.
8. Syed Masood Hussain Shah is on leave preparatory to retirement and is due to retire on 6-1-1971. As stated already, e came into Class I Senior on 19-11-1953, when the appellant came into Class I Senior on 9-3-1951. When he was promoted as Joint Director on 19-1-1962, service rules has not been notified was no bar to the appellants' appointment as Joint Director. We have seen the relevant Government file and find that when respondent No. 3 was promoted as Joint Director, the case of the appellant was not considered at all, in the view Folding an isolated pest, he was not eligible in the line of promotion, as Joint Director. This view was on draft rules, which were still in draft form and had no binding force. The rules had not come into force, and there was no disqualification attaching to the appellant, and no obstacle in the way of his promotion as Joint Director. His case had, therefore, to be considered for promotion along with that of respondent No.
3. As his case was not considered, it is obvious that he cannot be deemed to have been superseded by respondent No. 3 in accordance with Explanation II to rule 9 of the West Pakistan Industries Service (Class I) Rules, 1962, which cam into force on 16th April 1962. It is under these rules that their inter seniority will not have to be determined. Rule 9 of the Rules provides as under:-
9. Seniority.--(1) The seniority inter se of the members of the Service in the various grades thereof shall be determined-
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission; provided that a person selected for appointment to the service in earlier selection shall tank senior to a person selected in a later selection; and
(b) in the case of members appointed otherwise, with reference to the dates of their continuous appointment therein; provided that if the date of continuous appointment in respect of two or more officers is the same, the older officer, if not junior to the younger officer or officers, to the next below grade, shall rank senior to the younger officer or officers.
9. Explanation II-If a junior officer in a lower grade is promoted to the higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniority is the fixation of his seniority in the higher grade.
10. Explanation II-If a junior officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subse--quently (2)------------------------------------------ The above rule makes .it clear that when respondent No. 3 was promoted, the appellant was not superseded because his case was not considered at the time of his promotion. From the service particulars of the appellant, it is clear enough that he has had a distinguished record of service, which does not in any way compare unfavourably with that of respondent No. 3. The case I of the appellant not having been considered along with that of the respondent No. 3 at the time of his promotion, and he having been ignored because a rule was being notified, which rule was also altered, the latter cannot be held to have superseded the appellant. When respondent No. 3 was promoted, the appellant was not disqualified from promotion as Joint Director. The rule was also suitably amended in 1964 and the appellant was eligible for promotion as Joint Director from the post General Manager. The appellant must retain his basic seniority as Deputy Director along with consequential rights. The appellant is, therefore, entitled, in view of his basic seniority over respondent No. 3, which he has not lost by super-session, to the benefits of promotion which are due to him as having been senior to respondent No. 3 and as not having lost his seniority over him.
11. We, therefore, accept the appeal of the appellant qua respondent No. 3, and declare the appellant to be senior to the respondent No. 3 in Senior Class I and entitled 'to all conse--quential benefits of his seniority. We leave the parties to bear their own costs.