1. S. A. MAHMOOD (CHAIRMAN).-This is a joint Appeal by Sardar Hidayat Ullah Khan Mokal and Mr. S. M. Ashraf, under section 4 of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969, directed against the fixation of their seniority below respondents Nos. 3 to 13 in the latest seniority list circulated on 8-4-1970. The appellants claim that they are entitled to rank senior to them on the ground that while they were appointed to substantive vacancies, the respondents Nos. 3 to 13 were only appointed to temporary vacancies. It may be mentioned incidentally that respondents Nos. 3 to 13 are all promotees, while the appellants are direct recruits. Respon--dents Nos. 3 to 13 were promoted as Assistant Director, Labour Welfare before the appellants were so appointed.
2. Both the appellants were serving as Additional Settlement Commissioners in the Rehabilitation and Settlement Department, when they became surplus, and it was decided to absorb them and the surplus staff in other departments of the Govern--ment. On 21-4-1967, an advertisement appeared in the Pakistan Times on behalf of the West Pakistan Public Service, Commission intimating that 4 (two, permanent and two temporary, likely to became permanent) Assistant Directors in the Labour Department of West Pakistan were giving to be recruited through the Public Service Commission and inviting applications. The two appellants submitted their applications and were selected by the Public Service Commission along with two others. Their order of appointment is of 18-12-1967. Sardar Hidayat Ullah khan Mokal and Mr. S. M. Ashraf,appellants - 1 and 2 were placed at Nos. 1 and 2 in order of seniority. Sardar Hidayat Ullah Khan took over on 26-10-67. Mr. 5. M. Ashraf took over on 4-11-67. Since two permanent posts of Assistant Directors, Labour Welfare were mentioned in the advertisement, it is claimed on behalf of the appellants that they were appointed to substantive vacancies, though in the appointment order dated 18-12-1967, their appointment was shown as officiatingAssistant Director of Labour Welfare. On behalf of the appellants, reliance is placed on the letter of the Secretary to Government, - West Pakistan Labour Department addressed to the West Pakistan Public Service Commission by which requisition for recruitment to 4 vacancies (2 permanent and 2 temporary) was made. It was mentioned in this letter that there were 18 sanctioned posts of Assistant Directors, Labour Welfare in the Labour Department, of which 10 were permanent and 8 were temporary, and under the draft West Pakistan Labour Welfare (Gazetted Posts) Recruitment Rules, 1969, 25 % of the vacancies had to be filled by direct recruit-- ment. In substance it is claimed on behalf of the appellants that since two permanent posts were advertised as being perma--nently available ant appellants were selected by the Public Service Commission and appointed at Nos. I and 2 in order, of merit they were appointed to the two substantive vacancies, which were permanently available. This is contested on behalf of respondents and it is argued that as all permanent posts were filled by others, no permanent vacancies were available, to which the appellant could be substantively appointed.
3. Before us, Mr. Khalil-ur-Rahman, Advocate, has appeared on behalf of the two appellants, Ch. Mohammad Hussain, Mr. Mahmood Akhtar and Mr. Mohammad Amin Qazi have appeared before us with Mr. Asadullah Siddiqui; Advocate. Kh. Said-ud-Din, Mr. Khalil Ahmad and Mr. M. A. Akhund have appeared in person. As Mr. A. K. Qureshi and Mr. N. A. Farooqi, have retired from service, relief is not being claimed against them now. Mr. Baqar Ali. Khan and Mohammad Muss -Khan having been assigned to Karachi and Mr. N. A. Farooqi to Peshawar and he having retired from service, their names have been struck off from the lists of respondents, as they no longer rennin within the jurisdiction of this Tribunal, as the Tribunal is now constituted as a Punjab Tribunal under the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970.
4. With respect to respondents; it may be mentioned that for promotion from thepost of Labour Officer to that of Assistant Director it was not necessary to consult the Public Service Commission prior to the issue of Notification No. S. O. VI-17-56/64, dated 9-11-1965. It was on the issue of this notification that the promotion as Assistant Director became referable to the commission. Messrs Kh. Said-ud-Din, A. K. Qureshi, Baqar Ali Khan, Ch. Mohammad Hussain, Mahmood Akhtar, Mohammad Amin Qazi, Mohammad Musa Khan, Khalil Ahmad and Nisar Ahmad Saleem, having been promoted as Assistant Directors, Labour Welfare on 4-4-1964, 9-4-1964, 1-6-1965, 13-1-1964, 13-8-1964, 9-6-1964, 3-11-1964, 29-7-1964 and 1-6-1965, respectively, i.e. prior to the above Notification, their cases did not require to be referred to the Public Service Commis--sion for approval as Mr. N. A. Farooqi and Mr. M. A. Akhund were so appointed. on 1-12-1966 and 20-1-1967 respectively approval of the Public. Service Commission had to be obtained for their promotion.
5. Their cases were referred to the Public Service Commission for approval in June 1967, The Public Service Commission has not yet finalized its advice about them and we are told that the matter is under correspondence between the Government and the Public Service Commission.
6. As the seniority in dispute being in the rank of Assistant Director, Labour Welfare, the dates of continuous appointment of the appellants (who are direct recruits) and the dates of appointment of respondents substantive or otherwise are material. The dates of continuous appointment of Sardar Hidayat Ullah and Mr. S. M. Ashraf are 26th October 1967 and 4th November 1967. The dates of appointment of respondents 3 to 13 as indicated in the seniority list of 1970 range from 4-4-1964 20-1-1967. The respondents 3 to 13 were all promotees, who were promoted as Assistant Directors earlier than the appellants, and have longer period of appointment, and yet the appellants claim seniority over them on the ground that while respondents were appointed to temporary vacancies, they (the appellants) were recruited to substantive vacancies. Their claim to seniority is based on para.17(c) of the Integration Circular read with rule 10(2)(b) of the West Pakistan Labour Welfare (Gazetted Posts) Recruitment Rules, 1969. On behalf of the respondents it is contended that the rules of 1969 have no relevancy since they were enforced after the respondents and the appellants were promoted and recruited as Assistant Directors, and these rules have no retrospective operation. It should, however, be men--tiondd that the rule of seniority existed at the time of promotion of the respondents and appointment of the appellants in para.17(c) of the Integration Circular dated 25th November 1955, which provided that the seniority of the direct recruits vis-a-vis promoted officers will be regulated with reference to -their respective dates of the appointment to the service. This date, in the case of direct recruits; will be the date of appointment "on probation or otherwise" and in case of promoted officers it will be the date of substantive appointment. It is, therefore, argued, on behalf of the appellants that their inter se seniority is, to be determined by the date of substantive appointment to service of the respondents, (but they have not yet been substantively appointed) and the date of appointment to the service of the appellants (substantive or otherwise) i.e. the actual dates whatever be the nature of appointment.
7. The West Pakistan Labour Welfare Rules were on the avail for a long time, even as early as 1965.
8. This clearly appears from Notification, dated 26th May 1965, when Messrs N. A. Saleem and Jamil Ahmad Bhutto were promoted as Assistant Directors on a purely temporary basis in newly sanctioned posts, reserved for direct candidates. As reservation of seats for direct recruits was provided for in. the draft rules, the promotion of the two officers was specifically made against vacancies reserved for direct recruits. Thus when the respondent e and the appellants were appointed as Assistant Directors, the rules were in the form of draft rules without, of course, all statutory force, but were being used as guidance for filling posts and vacancies and making appointments. The rules came into force from 1st August 1969, when they were published in d the Gazette of West Pakistan, and were henceforth applicable to the members of the Service. Rule 10(2) of these Rules is relevant for determining inter se seniority of the appellants as well as of the respondents 3 to 13. Rule 10(2) provides as follows:- "10. (2) Seniority in various grades of the service of the members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined-
(a) in case both the officer appointed by initial recruitment and the officer appointed otherwise have been appointed against substantive vacancies, or both have been appointed against temporary vacancies, with reference to the date of appointment to such vacancy in the case of the officer appointed by initial recruitment, and to the date of continuous appointment against such vacancy in the case of the officer appointed otherwise; provided that if the two dates are the same, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment ;
(b) in case the officer appointed by initial recruitment has been appointed against a substantive vacancy and the officer appointed otherwise has been appointed against a temporary vacancy, the officer appointed by initial recruitment shall rank senior to the officer appointed otherwise ; and
(c) ---in case the officer appointed otherwise is appointed against a substantive vacancy and the officer appointed by initial recruitment is appointed against a temporary vacancy, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment.--- In view of the above rule, the question, which requires consideration firstly, is whether the appellants were initially recruited and the respondents were otherwise appointed. Weconsider the appellants to be initially recruited to the service, because they have not been appointed to the service either by promotion or transfer from another service. In this connection, the definition of initial recruitment in clause (f) of rule 2 ofthe rules may be seen. The respondents 3 to 13 not having been on fed by initial recruitment and being promoted officers, they were---appointed otherwise- -- and the 2nd question which requiresdetermination is: What was the nature of vacancies to which the appellants and the respondents were appointed.
9. It is an admitted position conceded on both sides that up to February 1962 there were 3 permanent posts of Assistant Directors and in February 1962, 7 more permanent posts of Assistant Director were sanctioned, raising the number of permanent postsfrom,3 to 10). During 1964-65, 10 permanent and 6 temporary posts of Assistant Directors, Labour Welfare, were sanctioned. During 1965-66, 10 permanent and 7 temporary posts were, sanctioned. During 1966-67, and1967-68, 10 permanent post and 8 temporary posts were sanctioned; and during 1969-70, 10 permanent and 33 temporary posts were sanctioned it has not yet determined how many sanctioned posts are going to remain in, the Labour Welfare Department after dissolution of the Province on 1-7-1970.
10. It transpires that though there were 10 permanent posts, none of the respondents was appointed on probation to a substantive vacancy. We have seen their promotion orders, which indicate clearly that they were appointed in officiating capacity. Indeed it is clear from the written statement filed by respondents Nos. 3, 7, 10 and 13 that they were not appointed to any substantive vacancy. It was by notification of 8th April 1963, that Messrs A. M. Sumro, Mohy-ud-Din, Abdul Aziz Bhatti, Raja Iftikhar Ahmad, Father-ud-Din, Muhammad Ashraf, S. M. Shafi, N. A. Talpur, Maqbool A.
11. Sheikh and Qazi Masood Afzal were appointed to officiate as Assistant Directors: The appointment of Mr. MaqboolA. Shdeikh and Qazi Masood Afzal was made for six months only The promotion of Mr. N. A. Saleem and Mr. Jamil Ahmad Bhutto by notification dated 26th May 1965 was made on a purely temporary basis against posts reserved for direct candidates and their appointment was subject to the approval of the Public Service Commission. None of the respondents 3 to 13 can claim substantive appointment on probation, though there being 10 permanent sanctioned posts of Assistant Directors and there being reservation of 25 % of the posts for direct recruits the promotees were entitled to substantive appointment and confirmation against 8 of there permanent posts, and thus 8 of the senior most promotees can be deemed to have been substantively promoted in the vacancies available for 8 promotees. In fact this arrangement appears to have been made by the Department in making the appoint--ments of Mr. N. A. Saleem and Mr. Jamil Ahmad Bhutto in the newly created vacancies in a temporary capacity in the vacancies reserved for direct recruits. Thus from 1965, 8 vacancies were Par-marked for promotees and 2 for direct recruits. The 8 senior most Assistant Directors were officiating as Assistant Directors since 1964-65 and have a preferential right to substantive appointment and confirmation in the 8 vacancies to which they could normally be promoted. Thus they should have been confirmed against 8 of the vacancies. If the department has failed to confirm them or make their appointment substantively against available 8 permanent posts, D it is no fault of theirs and for the fault of the Department, they cannot be made to suffer loss of seniority, other benefits and service rights. We, therefore, direct that eight promotees be confirmed against 8 of the permanent vacancies of Assistant Directors as if they were substantively appointed to 8 posts, since 8 substantive vacancies existed, to which promotees could be deemed to be substantively appointed.
12. There has been considerable argument and dispute on the question whether the appellants have been recruited to substantive or temporary vacancies. It has even been denied on behalf of the department that they have been appointed to substantive vacancies. The respondents have taken the plea that their appointment being also in officiating capacity, they cannot rank senior and the appointment of both the appellants and the respondents being of temporary or officiating nature, their seniority has been correctly fixed, and the dates of their actual continuous appointment has to determine their seniority. We are inclined, however, to accept the appellants contention that they were appointed to substantive vacancies in the two vacancies E reserved for direct recruits as early as 1965 in view of the provision of 25 % vacancies for direct recruits. We have seen the relevant file on the basis of which the requisition for recruit--ment of two permanent and two temporary Assistant Directors was sent to the Public Service Commission. In the relevant noting it has stated that there were 10 permanent and 8 temporary posts in the cadre of Assistant Director, Labour Welfare and under the draft West Pakistan Labour Welfare (Gazetted Posts) Recruitment Rules, 25 per cent of vacancies in the posts of Assistant Directors were to be filled by initial recruitment. Thus. 4 vacancies in the cadre had to be reserved for initial recruitment, two permanent and two temporary. It was also mentioned that 4 officers, namely, Maqbool A. Sheikh, Qazi Masood Afzal, Nisar Ahmad Saleem and Jamil Ahmad Bhutto were appointed on ad hoc basis to these posts since 8-4-1963, l-6-1964 and 1-6-1965, respectively, and their promotion had to be approved by the Public Service Commission. In pursuance of the requisition of the Government to fill four posts, two permanent and two temporary, an advertisement was published in the Pakistan Times of 21st April 1967, clearly stating that there were two permanent and two temporary posts likely to become permanent, which were to be filled through the Public Service Commission. Thus the recruitment through the Public Services Commission was intended to be made against the quota of 25 per cent of the vacancies reserved for direct recruits, 10 permanent and 8 temporary posts, there can be no dispute that two permanent and two temporary vacancies had to go to direct recruits. The appellants were selected by the Public Service Commission and were placed senior to the other two. It was specifically stated in the order of their appointment dated 18th December 1967 that their inter se seniority was to count in the order of merit shown therein. The two appellants are, therefore, justified in claiming that they were appointed to two permanent posts, although in the appointment letter, their appointment was as officiating Assistant Directors Even though the appointment was described as officiating, it was intended to be against permanent vacancies reserved for direct recruits. Therefore, the claim of the two appellants to seniority based on para.17(c) of the Integration Circular read with rule 10(2)(b) gives them seniority over the Assistant Director promoters other than those Assistant Directors, who were appointed to 8 of the remaining permanent vacancies of the Assistant Directors. The result is no different if para.17(c) of the integration circular is applied. Thus in order of seniority the appellant should rank immediately below those 8 Assistant Directors, who must be deemed to have been substantively appointed to the 8 vacancies reserved for promotees.
13. In effect, therefore,-our direction is that in accordance with seniority and service record, 8 of the Assistant Directors may be confirmed with -retrospective effect in 8 permanent vacancies so as to safeguard their seniority and they shall rank senior to the two appellants. The two appellants shall fill the two remaining vacancies of Assistant Directors and shall rank next below them, with their dates of substantive continuous appoint--ment as 26-10-1967 and 4-11-1967.
14. This appeal is, therefore, accepted to this extent, but there is no order as to costs.