' S. ABDUL JABBAR KHAN (CHAIRMAN). Ahmad Khan, Industrial Development Officer, Office of the Deputy Director of Industries Multan, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded Secretary, Government of the Punjab, Industries and Mineral Development Department, Lahore, Director of Industries and Mineral Development, Punjab, Lahore and Messrs Arif Bakhsh Qasmi, Ghulam Nabi, Muhammad Qadoos Raja, S. M. Ilyas Zaidi, ' Muhammad Akram Sheikh, Khalid Mhamood, Muhammad Saeed Anwar, Babar Ali Zia, Mehdi Hassan, Shabir Hussain, Mahmood Hussain Chaudhry and Mahmood Ali Gardezi, as respondents.
2. By virtue of this appeal he has prayed that respondent No, 1 be directed to amend the seniority list issued on 8th July, 1981, in accordance with the inter se seniority of the appellant and respondents Nos, 3 to 14 be determined in the seniority list issued in 1968, and he be placed above Mr. Arif Bakhsh Qastni, respondent No, 3 and below Mr. Muhammad Amin Mir in the seniority list, with all b ack benefits.
3. Brief facts of the case are that the appellant obtained the Degree of M. Sc. (Chemical Technology) from Punjab University. His appointment came into being as officiating Industrial Development Officer in Class II, in the office of the Additional Director of Industries, Karachi Region, Karachi, vide order dated 3rd February, 1966. He was appointed temporarily as officiating I/D.
0. Until further orders, for a period not exceeding 6 months. He was declared surplus on 1st July, 1970, along-with 13 officers of the Industries Department on the Dissolution of Province of West Pakistan. When the case of the appellant was referred to Public Service Commission by the S & G A Deptt. For absorption, the Public Service Commission was pleased to approve his absorption against the post of Registrar, Swedish Pakistan Institute of Technology, Gujrat, which post was also of Class II. However, respondent No, 1, vide his letter dated 28th September, 1971, requested the Punjab Public Service Commission that the said selection of the appellant as Registrar, Swedish Pakistan Institute of Technology, be cancelled and appellant be absorbed against one of the 8 posts of Industrial Development Officers lying vacant with the Industries Department, as he was an experienced officer of Industries Department which did not like to loose the services of such officer.
This request of the respondent was declined by the Public Service Commission despite the fact that respondents Nos, 1 and 2 did not relieve the appellant to join the new post. In a joint meeting held between the representative of S & G A Department and respondent No, I on 4th July, 1973, a decision was taken by which the appellant and Muhammad Akram Sheikh, were considered to have been provisionally adjusted against the posts of Industrial Development Officers on ad hoc basis w. e. f. 1st May, 1972, until their appointments as Industrial Development Officers were finally regularised by the Department. This decision was endorsed through notification dated 10th September, 1977. The appellant claimed to have continued to serve as Industrial Development Officer from 9th February, 1966, without any break. After promulgation of M. L. I. 21, respondent submitted the case of the appellant and Muhammad Akram Sheikh etc., I. D. Os. To the Public Service Commission, to approve their appointments against the posts held by them. Vide notification dated 10th September, 1977, the appointments of the appellant alongwith two other officers named above were regularised with immediate effect. The appellant claimed his seniority on the strength of the above-mentioned notification, from the date of continuous appointment as Industrial Development Officer from 9th February, 1966, but no reply was given to him. It may be mentioned here that the appellant had been shown senior in the seniority list of 1967 as well as that of 1968, to the respondents and the same lists were duly circulated amongst these officers.
However, a seniority list was issued on 8th July, 1981, in which the appellant has been shown junior to the respondents. This seniority list was challenged earlier by Messrs S. M. Ilyas Zaidi, Muhammad Qadoos Raja, Muhammad Akram Sheikh, who are respondents Nos 5, 6 and 7 in this appeal, through appeals No, 161/270 of 1978, No, 163/272 of 1978 and No, 167/ 273 of 1978, respectively. This issue was decided by this tribunal, vide its judgment dated 12th April, 1981, in which the seniority list of 1968 was declared already holding the field and the list of 1981, was set aside. In those appeals, respondents Nos, 5, 6 and 7 did not implead the appellant as respondent. The appellant filed representation to respondent No, 1 on 16th August, 1981, to include his name in the revised seniority, list of 1981, but no reply has been given to him so far. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned counsel for the respondents alongwith learned District Attorney, assisted by the representative of the Department and have perused the record of this case carefully with their assistance. Learned counsel for the appellant has relied for the case of the appellant, on the detailed judgment given by us in the case of Messrs S. M. Ilyas Zaidi, Muhammad Qadoos Raja and Muhammad Akram Sheikh and has submitted that once the seniority list of 1981, has been struck down and the list of 1968, has been upheld, the department was not justified to omit the name of the appellant at the place to which he was entitled according to the verdict given in that judgment on principle of law and procedure.
He has vehemently criticised the comments of the department given in para 15, in which the only reason given by them for not assigning seniority to the appellant, was that as he did not file any appeal before the Punjab Service Tribunal for reckoning seniority from the date of original appointment as I. D.
0., viz. 9th February, 1966, and did not bring a similar decision from the Tribunal, therefore, be was not allowed seniority from the said date on the basis of other cases. According to the learned counsel, once a principle has been settled for assignment of seniority and it has been clearly held by the Tribunal that the appointments of the appellant as well as of Messrs S. M. Ilyas Zaidi, Muhammad Qadoos Raja and Muhammad Akram Sheikh, were not hit by the principle of ad hoc appointment and Messrs S. M. Ilyas Zaidi, etc., were fully entitled to the seniority from the date of continuous appointment, the mere fact of not filing the appeal by the appellant, cannot debar him from his seniority particularly when his case was fully at par with the said appellants, who have succeeded before the Service Tribunal and the respondents have accepted their seniority by implementing the judgment of the Tribunal in their case.
5. Learned counsel has reiterated his arguments which he advanced in the case of Messrs S. M.
Ilyas Zaidi etc., in which he was their counsel, by submitting that the list as stood on 1st January, 1968, cannot in any way be interfered with, as the same was drawn up under the orders of the competent authority, which has taken into consideration all the rules and regulations governing the same. He has also relied on Memo No, A-E-7-17 (SL)/68, dated 9th May, 1968, from the Director of Industries and Commerce, West Pakistan, Lahore, to all concerned. According to the learned counsel this memorandum clearly called upon the respondents to take any objection, if they decided to do so, and once they failed to act, the list would become final for all purposes against them. He has further submitted that terms ad hoc, 'temporary', 'officiating', 'permanent' and 'substantive', were synonimous, as earlier than 1974, the term 'ad hoc' was not in vogue. It was urged that as list of 1968, was prepared under the Industries Department Service Rules of 1962 and Article 178 of the constitution of 1962, therefore, the same cannot be superseded by the instructions and that would run contrary to law so laid down in PLD 1965 SC 208. He has further pointed out that in the case of Muhammad Rafi another appellant, whose appeal has been accepted by the Tribunal recently, was also at par with the case of the appellant, therefore, respondents were not justified to take exception as in the case of Muhammad Rafi they stated before the Tribunal that they would not oppose the same. He has also relied on PLD 1970 Quetta 115 an authoritative pronouncement given by Mr. Justice Muhammad Afzal Zullah, which has laid down valuable guidelines to resolve this issue as to what would be the meaning of 'ad hoc' under the term of Punjab Civil Servants Act, 1974. Learned counsel has also relied on PLD 1970 SC 453, which was also quoted in the case of Messrs S. M. Ilyas Zaidi, etc. And was followed by this Tribunal.
6. On the other band respondents Nos, 1 and 2 in para. 15 of their parawise comments, have submitted that they have ignored the case of the appellant on the ground that as he has failed to file appeal before the Punjab Service Tribunal, for reckoning seniority from the date of his original appointment as Industrial Development Officer viz. 9th February, 1966, therefore, while implementing the judgment of this Tribunal in case of S. M. Ilyas Zaidi, etc., they ignored his claim. In para. 18 of their comments, they have also further pointed out that decision made in appeal of Messrs S.M.Ilyas Zaidi, etc., has already been challenged by the aggrieved officers of this Directorate in the Supreme Court of Pakistan, which has been admitted to regular hearing, therefore, the case was sub judice. Although the last line of their comments have been scored by the respondents, from their comments, which we do not know as to what they wanted to say, but by implication we can assume that the appeal was being resisted on this score that as the matter was sub judice before the Supreme Court of Pakistan, therefore, this appeal be not accepted.
7. With regard to the other respondents we have carefully attended to their arguments so advanced on their behalf by their respective learned counsel who have firstly objected the appeal was time-barred and on merits their main claim is that the case of Messrs S. M. Ilyas Zaidi etc., was distinguishable from the case of the appellant on the point that the former were promotees of the department whereas the appellant was initial recruit as Industrial Development Officer. They have also challenged the continuous service of the appellant by submitting that he was appointed three times afresh during the course of his service, therefore, he would not be entitled to take the benefit of the said judgment on this score.
8. We have given our anxious thought to the arguments so advanced by the parties and have carefully perused the judgment delivered by us in the case of Messrs S. M. Ilyas Zaidi, Raja Qadoos and Muhammad Akram Sheikh and find that the contesting respondents in this appeal were also respondents in the appeals of Messrs S. M. Ilyas Zaidi and Muhammad Akram Sheikh, etc. In this manner, it cannot be said that the principle laid down and the judgment delivered in the case of Messrs S. M. Ilyas Zaidi, etc., would not be binding on these respondents. It is also a fact that these respondents have challenged the said judgment before the Supreme Court of Pakistan and the same has been admitted to regular hearing but as the same was not suspended by the said Courts, therefore the department has implemented the same and has corrected the seniority list on the basis of the seniority assigned in the list of 1968, which was held by the Tribunal to be still in the field. It cannot be denied by the respondents that the case of Muhammad Rafi was absolutely at par with the case of the appellant as in every notification of their appointments etc., we find them together. The appeal of Muhammad Rafi was not resisted by the respondents and was accepted in his favour, vide our judgment dated (?).
9. We have fully scrutinized once again the date of appellant service vis-a-vis the service of Messrs S. M. Ilyas Zaidi, Qadoos Raja and Muhammad Akram Sheikh and find that the case of the appellant, by facts and figures, would be at par with them. We have no dispute with the fact that Messrs S. M. Ilyas Zaidi etc., were promotees while the appellant was a 'Direct Recruit' but the history of the case fully reveals that in his case the Public Service Commission, after dissolution of One Unit, assigned him the post of Registrar, Swedish Pakistani Institute of Technology, Gujrat, yet the department refused to relieve him and by virtue of joint meeting held by the representative of S & G A. Department and the Industries and M. D. Department, they were allowed to continue in the Department of Industries and Mineral Development Department initially on ad hoc basis.
10. We have carefully attended to the arguments of the learned counsel for the respondents in which it has been claimed that the appellant had no continuous service to his credit as the same was broken thrice during his career but while looking into the record of the case as well as comments of the respondents Nos, 1 and 2 who being the Custodian of such record this assertion does not find any support at all.
11. With regard to the claim of the appellant that in the list of 1967 as well as 1968, he was placed senior to the contesting respondents and list of 1968, had become final in view of the fact that the same was duly circulated among all and was not challenged, we have already given our decision in the appeals of Messrs S. M. Ilyas. Zaidi, Qadoos Raja and Muhammad Akram Sheikh and have declared the list of 1968 as the only valid list in the field and have set aside the impugned seniority list of 1981. In this manner, we cannot deviate from our earlier decision and accept the claim of the appellant as justified. However, our decision is subject to the ultimate decision of the Supreme Court of Pakistan which will prevail, if our view is not accepted.
12. In similar manner, we accept the claim of the appellant with regard to his seniority on the basis of continuous appointment as we have already accepted this principle in the ease of Messrs S. M.
Ilyas Zaidi, Qadoos Raja and Muhammad Akram Sheikh and cannot deviate from the same.
13. The result is, we accept the appeal, direct respondents Nos, 1 and 2 to place the appellant at proper place on the basis of the seniority list of 1968 which we hold, as a valid list, still in the field.
There will be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.