' S. ABDUL JABBAR KHAN (CHAIRMAN). -Messrs Muhammad Hanif and Ghulam Rasool have filed these appeals under section 4 of the Punjab. Service Tribunal Act, 1974, in which they have impleaded the Commissioner, Lahore Division, Deputy Commissioner, Sialkot, Assistant Commissioner, Shakargarh and M/s. Bashir Ahmed, Muhammad Saeed, Abdul Majid, Allah Rakha, Inayat Ali and Patwari Halqa Inayatpur No, 2, as respondents.
2. By virtue of these appeals they have claimed that impugned order, dated 29th August, 1981 be set aside and the order, dated 28th February, 1981 passed by respondent No, 1 may be restored alongwith all back benefits in favour of the appellants.
3. Brief facts of the case are that the appellants were employed as Patwari candidates in the years 1960 and 1964, respectively. As the history of these two cases is a bit different, therefore, we will first of all deal with the case of Muhammad Hanif and later on with the case of Ghulam Rasool.
' Muhammad Hanif (appellant) was removed from service on 15th June, 1974 under the order of Settlement Officer, Sialkot on account of his conviction in the criminal case. He filed an appeal before the Commissioner, Lahore, who vide his order, dated 28th April, 1975 reinstated him, by setting aside the said order of his dismissal. A. C. Shakargarh subsequently acting as Collector of the Sub-Division terminated the service of the appellant alongwith some others. Against this order, the appellant filed appeal No, 131 of 1980 and the learned Commissioner vide order, dated 28th February, 1981 accepted the appeal and reinstated the appellant in service. Respondents Nos, 3 to 7 then filed a review petition against the said order of 28th February, 1981 and the learned Commissioner while accepting the said petition the appellant was directed to be relieved from service.
' Ghulam Rasool (appellant) who was appointed Patwari candidate in 1962, so mentioned in the earlier part of our judgment, was relieved from service when A. C. Shakargarh on 31st December, 1980 appointed fresh candidates from the list of 14 candidates prepared in this behalf. He was ignored on the ground that at the time of fresh appointment, his services had already stood terminated and he was considered in the category of fresh appointments. On review petitions filed by Mfs. Bashir Ahmad, Muhammad Saeed, Abdul Majid, Allah Bakhsh and Inayat Ali, the case of these two appellants came before Mr. Umar Khan Afridi, Commissioner, Lahore Division, who vide his judgment, dated 29th August, 1981 held that only one Fiaz Ahmad from amongst the respondents, was justified to be retained in service, who according to the learned Commissioner, was in service when the advertisement was made for fresh appointment and thus held that both the appellants who were respondents in that review petition so filed by Bashir Ahmad etc., were not entitled to be retained in service.
4. We have heard the learned counsel of both the parties as well as learned District Attorney assisted by the representative of the Department and have perused the impugned orders carefully with their assistance.
5. On behalf of the appellants it has been argued that there was a seniority list in which their names were duly mentioned and thus according to the said seniority list they were entitled to be retained in service and the A. C. Had no jurisdiction to make fresh appointments and to advertise the posts for said purpose.
6. We have looked into the record of this case and find that the earlier list of the candidates which the appellants have claimed as seniority list, was no longer valid after the abolition of candidate registers by the Board of Revenue. In view of the above, the main argument of the appellants falls to the ground that they had some vested rights and the same should not have been taken away from them. In view of the above, we have no hesitation to hold that A. C. Shakargarh was fully justified to treat all those Patwari candidates who were not continuing in service at the particular time as fresh candidates when fresh selection was made. On the converse we will agree with the decision of the learned Commissioner that persons who were continuing in service at that particular time, had to be allowed to continue as such in preference to the fresh candidates who came forward for selection. On this premises the learned Commissioner found that one Faiz Ahmad who was respondent alongwith the appellants in review petition before him, was in service when the advertisement was made and as such the post he was occupying, cannot be considered as vacant. We have consulted the record vis-a-vis these two appellants and find that Ghulam Rasool was not in service when such advertisement was made, therefore, his appeal dismissed and we uphold the order of the learned Commissioner in respect of the appellant.
7. However, in the case of Muhammad Hanif it has been conceded by the representative of the Department and is also borne out from the record that he was continuing in service under the said order passed in his favour by a Civil Judge and thus following the principle so accepted by the learned Commissioner himself, we hold that the post of Muhammad Hanif cannot be considered vacant and no fresh recruit can be appointed against this post. We, therefore, set aside the order of the learned Commissioner with regard to the case of Muhammad Hanif as the same has been passed, on misreading of evidence and against the facts on the record and direct that Muhammad Hanif will continue in service with all back benefits, as if he was never removed from the same.
8. The result is we accept the appeal of Muhammad Hanif and dismiss the appeal of Ghulam Rasool without any order as to costs.