1. S. A. MAHMOOD (CHAIRMAN).---This is an appeal by Sirajuddin who has been placed at serial. No. 75 in the seniority list d Assistant and Stenographers as on 1-4-1968 circulated on the 27 of April 1968. He complains that he should have been given seniority w.e.f. 13-1-1950,from which date he continued to officiate in a comparable grade.
2. Sirajuddin appellant joined the Central Government as a Junior Clerk on 1-5-1942, and was promoted as Upper Division Clerk in 1949, On 13-1-1950, which is the claimed date, ho was promoted as Senior Clerk by the Central Government in the Department of Supply and Development against a post existing in the Supply Wing and was provisionally confirmed as a Senior Clerk by the Central Government w. e. f. 13th August 1951.
3. On the 2nd of November 1959, in consequence of Reorganization of Supply and Development Departments of Government of Pakistan, in view of a change in the lists of subjects within the competence of Provincial and Central Governments, some 30. officers of the Central Government were rendered surplus. The Government of West Pakistan agreed to take them on their rolls in the office of Director of Industries and decided that seniority of these persons would be determined from the date of continuous officiation in the same grade or comparable grades, Sirajuddin appellant, whose grade as Senior Clerk was Rs. 125-10-225 was fixed in the grade of Assistant in the Provincial Government. The grade of an Assistant was Rs. 120-8-200-10-250. It was thus a comparable grade. The Office Order passed by the Director of Industries, West Pakistan, on the 13th November 1959 shows that these officers were absorbed w. e. f. 2nd November 1959, in that office.
4. The appellant continued to function as an Assistant in that office, and in the latest list of seniority circulated on the 27th of April 1968, is shown at serial No. 75, but with the date of appointment as Assistant as 14th April 1960. Mr. G. M. Saleh, who was immediately senior to the appellant was placed at serial No. 74, when the date of his appointment as Assistant is 13-1-1950. This is surprising because other officers at serial Nos. 8, 11, 12,13, 14 and 17, who were also transferred along with appellant and Muhammad Saleh, have been shown the correct dates of their appointments w. e. f. the dates on which they were appointed by the Central Government to various posts. The appellant represented against the fixation of his seniority and claimed seniority as an Assistant w. e. f. 13-1-1950, the date from which he is continuously officiating as Senior Clerk, and, Then as Assistant, in a comparable grade, but both of his representation made by him were turned down on the ground that he was reverted as Upper Division Clerk in absentia by the Central Government from 3rd November 1959, and was again promoted as Senior Clerk from 14th April 1960. The further reasons were that he was on deputation to this office against the post of an Assistant w. e. f. 3rd of November 1959, forenoon, with his service rights protected in his parent office, and his lien still remained there, Mr. Muhammad Saleh had made similar representations. The Deputy Director (Administration) on behalf Director-General, Investment Promotion and Supplies, Karachi supported his representation in his Memo dated 28th May 1969, recommending that the seniority of Mr. Saleh should be fixed in the grade of Assistant from 13-1-1950, the date on which he was holding the post of senior in the Central Government. In the appeal by the appellant, the Assistant Director (Administration) on behalf of Director of Inspection, Lahore opposed the prayer in the appeal, on the ground that he was reverted from the post of Senior Clerk to his substantive post of Upper Division Clerk w.e.f. 2-11-1959 forenoon, and was directed to report for duty to the Director of Industries w. e. f. the said date. It was, however, conceded that his transfer to the Directorate of Industries was subject to Government of West Pakistan's decision that seniority of the transferred Government servants had to be determined with reference to date of continuous officiation in the same or in comparable grade. Thus it was held that the appellant was not entitled to count his service from 13-1-1953, for the reason that he was reverted from the post of Senior clerk w. e. f. 2-11- 1959, but the date 2-1.1-1959 was a mistake, because an earlier letter shows that he was reverted in absentia by the Central Government from the 3rd of November 1959. In actual fact the appellant was transferred from the Central Government on 2nd November 1995 and took over in the Directorate of Industries on the same day as Assistant. He was never actually reverted and continued as an Assistant all along. It was on paper on the 3rd of November 1959 that he was reverted in absentia by the Central-Government. His paper reversion has no material bearing on the case in the context of the date of continuous officiation in the A grade of Senior Clerk or in the comparable grade of Assistant in as he continued as an Assistant without a break all along. In Memo dated 6/12th September 1963, the Assistant Director of Inspection (Administration) stated about Muhammad Saleh and Sirajuddin, after having recounted the facts of the case, and their reversion, that their seniority is to be counted fromthedate of continuous officiation in the same grade, i.e. as Senior Clerk, in which grade they were declared surplus, or in a comparable grade.
5. When this statement was made in the context of a narration that the appellant had been reverted to his subs--tantive post as Upper Division Clerk, it laves no scope for doubt as to his opinion. His opinion is clearly in favour of the appellant as was the opinion of Mr. Iqbal Ahmad Sethi, Deputy Director (Administration) in him Memo.dated 28th May 1969.
6. The question which falls for determination in this case, on the basis of the settled principle, on which transfer of the appellant and other employees of the Central Government to Provincial Government took place, and the later agreed to is: ---what is the date of continuous officiation of the app in his grade of Senior Clerk and then as Assistant in the 10 of Director of Industries---?
7. There is no doubt whatever that the grade ofthe Senior Clerk in the CentralGovernment was comparable toy the grade of Assistant in the Provincial Government, the grade of Senior Clerk being 175--10--225 and of Assistant being 120-8-200-10-250. The date of continuous officiation of the Assistant and in the comparable grade of Senior Clerk appellant is undoubtedly 13-1-1950. If this be so, then on the basis of the principle accepted b y the Provincial Government1e is entitled to count his seniority in the grade of Assistant w. e. f. that date and not 14-4-1960, which is shown in the latest list of seniority, which is clearly wrong. The fact that he was reverted Technically on paper by the Central Government, because of abolition of posts by the Central Government, has no materialbearing on the date of his continuous officiation, and was wrongly taken into consideration in the office of Director of Industries, and is to be ignored. We therefore, direct that he should be treated as continuing as Assistant, in a. comparable grade to Senior-Clerk of Central Government, since 13-1-1950, and this decision effect should be given to in the seniority list and all consequential benefits given to him.
8. There was some argument raised before his on behalf of respondents that since the appellant was first appointed in a temporary capacity, he is not entitled to compete in seniority with confirmed officials of the Provincial Government. That position is untenable because it is by reasons of transfer of subjects that certain Central Government employees have to be transferred to the Provincial Government. On transfer of a subject to the competence of the Provincial Government, the Provincial Government having undertaken and agreed with the Central Government to determine the seniority of Central Govern--ment employees on the basis of continuous officiation in a grade or comparable grade, effect has to be given to it in case of all those employees who were transferred to the Provincial Government from the Central Government. No hardship is involved in this, and there can be no deviation from a rule, agreed to for the benefit of the employees of the Central Government: It is also urged before us that as the appellant remains on deputation to the Provincial Government and retains a lien on a post on a permanent basis in the Central Government, he cannot be treated as Provincial employee, whose seniority can be deter--mined or shown in the seniority list. The simple answer to this question is that in the office order made by the Director of Industries dated 13th November 1959, the date of his absorption is shown as 2nd November 1959, which means that he has been absorbed in Provincial service. In the latest list of seniority he is not shown on deputation, but his seniority has been determined, as if he were a Provincial Officer. Thirdly on transfer of the relevant subject, the posts held by the transferred Central Government servants were abolished by the Central Government, and new posts were created by the Provincial Government. In these circumstances, there can be little doubt of appellant's absorption by the Provincial Government. If by reasons of some technicality, the appellant is still officially shown on deputation, he cannot be a penalised for it, and denied the rights, which are due to him under the rules of transfer.
9. For the reasons stated above, we accept this appeal and orderthat his continuous officiation as Assistant for purpose of senioritygiven effect to from 13-1-1950. We leave the parties to bear their own costs.