1. S. A. MAHMOOD (CIIAIRMAN).- In this appeal, Mr. Ihsan-ul---Haq, appellant, prays that he be declared senior to Messrs Nur Muhammad Khan, Qazi Saghir-ul-Haq, Dr. Asghar Alit Mr. Ghulam Muhammad Malik, Mr. Muhammad Nawaz, and Dr. Muhammad Hanif, respondents 2 to 7 in W. P. E.
2. S. I. Senior (Administrative Branch), and that the impugned seniority list, Annexure T, as notified in the Gazette dated 10th December 1970, may be declared to be baton law and inoperative on the right of the appellant He further prays that Secretary to Government of the Punjab in the Education Department respondent No. 1, may be directed to fix his seniority in W. P. E. S. I. (senior), so as to show him senior to respondents 2 to 7.
3. Mr. Ihsan-ul-Haq Sulemani, appellant, is represented by Mr. Masud Riaz, Advocate. The Secretary to Government of the Punjab, respondent No. 1, is represented by Mr. A. G. Humayun, Government Pleader. Messrs Nur Muhammad Khan, GhulamMuhammad Malik aid Dr. Asghar Ali,respondents, are present in person.Mr. Ghulam Hassan Gulshan, Advocate, represents respondent No. 4 and Mr. Raza Hussain Shamsi, Advocate, represents respondent No. 2. Mr. N Jai-Ird-Din, Advocate, represents respondent No. 5 Qazi Saghir-ul-Haq,Dr. Muhammad Nawaz and Dr. Muhammad Hanif, having proceeded abroad, are not present before us.
4. The appellant was appointed to the PunjabEducational Service Class II on 10-6-54. On 13-9-65, he was appointed as Inspector of Schools, Sargodha Division on his own pay and grade w. e. f. the date of taking over vice Khawaja Muhammad Abdullah W.P.E.S (1), but his appointment was ad hoc and purely temporary as a stop-gaparrangement, which was not to confer any right on him for a post of W.P.E.S. (I) to which he was being posted. In the letter of appointment, it was made Clear that his promotion to W.P.E.S. (I) will depend upon approval of the West Pakistan Public Service Commission as to his suitability for the same. Thus his appointment as Inspector of Schools was ad hoc, in a purely temporary capacity, as a stop-gap measure and subject tothe approval of Public Service Commission. It was on 6th February 1967, that Government forwarded the names of 23 persons for approval of the Public Service Commission for appointment to W.P.E.S Class I against 14 permanent and 4 expected vacancies of Class I (Senior). In this recommendation, supersession of Mr. E. A. Robinson was involved. The Public Service Commission agreed to the pro--motion to W.P.E.S. (I) of 18 persons in accordance with the cycle of promotion approved by the S. & G.A.D. in the order of merit assigned to these persons. Mr. Ihsan-ul-Haq Sulemani, appellant figured at No.
15. Therefore, on 7th July 1967, the Government notified the promotion of 16 officers from dates specified against their names. In this Notification, the appellant figured at No. 15 and he was promoted from the forenoon of 16th September 1965 in officiating capacity. In the seniority list as it stood on 1st February 1968, which was circulated, the appellant was shown at No. 27, above Messrs Nur Muhammad Khan and nazi Saghir-ul-Haq, respondents 2 and 3. The other respondents did not figure in this list, as they had not yet been appointed to W.P.E.S. (I). In this list under the remarks column, It is mentioned that the appellant was appointed against a vacancy, against which Mian Abdul Aziz at serial No. I1 and held a lien. This Mian Abdul Aziz was due to retire in February 1970, but he died on 28th June 1968. Against Mr. Nur Muhammad Khan and Qazi Saghir-ul-Haq, respondents, it was mentioned that their seniority will be determined later.The impugned seniority list was published in the Punjab Gazette of 10th December 1970. In this list Mr. Ihsan-ul-Haq Sulemani, appellant, figured at No. 12 with date of ad hoc appointment as 16-9-65 and regular appointment as from 1-7-68 Respon--dents 2 to 7 were shown at serial Nos. 5, 6, 7, 8, 10 and 11 of this list. They were thus shown senior to him. Their seniority is challenged by the appellant before us.
5. Mr. Nur Muhammad and Qazi Saghir-ul-Haq, respondents, were both initially serving in the Settlement Department as Additional Settlement Commissioners, wherefrom they were declared surplus. Under the Scheme of absorption of surplus officers and staff in the various departments as recommended by the West Pakistan Public Service Commission, Mr. Nur Muhammad Khan and Qazi Saghir-ul-Haq, respondents 2 and 3 were recommended for appointment to W.P.E.S. (I)
6. (senior) by the Public Service Commission against two permanent posts. This re commendation was accepted by the S & G. A. D. in their Memo. dated 7th March 1967. In pursuance thereof, letter of appointment dated 22nd November 1967 was issued to Mr. Ur Muhammad Khan, respondent No. 2, stating that he was appointed against a permanent post from the date he assumes charge of his duties, vide Notification dated 19th November 1917. He took over on 23rd November 1967. The relevant Notification was in fact of 18th November 1967. It was stated in it, that consequent upon his selection by the West Pakistan Public Service Commission against a permanent post in W.P.E.S. (1)
7. (Admn : Branch) (Men's Section), he was appointed to W.P.E.S. (I) as Deputy Director, Implementation Cell Government of West Pakistan w. e. f. the date he takes over. Againstthe said post the terms and conditions were iwimated to him under the Departments memo. dated 25th October 1967. The terms and conditions offered to him vide letter dated 25thOctober 1967 were amended on 8th August 1970, placing him on probation for a period of two years against permanent post inW.P.E.S. (1) (senior) in the Administrative Branch,Men'sSection. His is, therefore, a case of initial recruitment w. e. f. 23rd November 1967, against a permanent post. He was confirmed w. e. f. 23rd November 1967, by order dated 8 august 1970.
8. Qazi Saghir-ul-Haq, respondent No. 3, was offered a permanent post in W.P.E.S. (I), Administrative Branch, Men's Section as in the case of Mr. Noor Muhammad. He was issued a letter of appointment in similar terms. He took over on 9-2-68 against a permanent post and was confirmed from the same date by order dated 8th August 1970.
9. Dr. Asghar Ali, respondent No. 4, was also appointed as a direct recruit and he took over on 12th July 1968. His offer of appointment shows that he was appointed against a permanent post of W.P.E.S.th
(I) (senior) (Administrative Branch; Men Section). He was confirmed w. e. f. 12th July 1968.
10. Mr. Ghulam Muhammad Malik respondent No. 5, was also appointed as a direct recruit against a permanent post fie W.P.E.S. (1) (senior) (Administrative Branch, Men---s Section). He took over on 19 July 1968, a permanent post was confirmed from the samedate by order dated 8th December 1970.
11. Dr. Muhammad Nawaz, respondent No. E, was also appointed against a permanent post in W.PZS.
(1) (senior) andhe took over on 19th July 1968. He was confirmed from that date. Dr. Muhammad Hanif was selected by the Public Service Commission for appointment against an advertised temporary, but likely to be made permanent post. The post was offered, to him on the condition that the appointment will be in a temporary capacity in the first instance liable to termination on one month's notice. Thus he was appointed against a temporary vacancy likely to be made permanent. He was confirmed w. e. f. 1-7-70, the same date, from which the appellant has been confirmed.
12. The relevant rule under which inter se seniority of the appellant vis-a-vis respondents 2 to 7 has to be settled is rule 10 of the West Pakistan Educational Service (Class I). (Administrative Branch)
13. (Men's Section) Rules, 1962. Since the appellant is a promotee, while the respondents 2 to 7 are direct recruits, sub rule (2) of rule 10 is relevant for determining their seniority. It provides as under :- Rule 10(2).-The seniority in the Rule us 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 officers 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 7otherwise 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.
14. Thus under the above sub-rule (2) of rule 10, it is necessary to determine whether the appellant was appointed to a substantive or a temporary vacancy. It is claimed on his behalf that he was appointed to substantive vacancy. It is clear beyond doubt that respondents 2 to 6 were appointed against permanent vacancies, While respondent No. 7 was appointed against a temporary vacancy. In order to prove that the appellant was appointed to substantive vacancy, we have been referred by the learned counsel for the appellant to the requisition form sent by the Government in connection with the promotion of Class II officers to Class I (senior), fps in this requisition form it was stated that there were 18 permanent vacancies (14 vacant and 4 expected vacancies), it has been argued that the hosts to which the appellant was appointed was a substantive post, which was available and that seniority of the appellant vis-a-vis respondents 2 to 6 has to be determined under sub-rule (2)(a) of rule 10 and vis-a-vis respondent No. 7, under such-rule (2)(c) of rule 10, of the 1962-Rules. On behalf of the respondents it has been argued that the appellant was never appointed to a substantive vacancy and it is claimed that he was appointed in officiating capacity against a temporary vacancy. Drawing our attention to the seniority list as on 1st February 1968, has been argued that even on that date he was appointed not in a substantive capacity, but in a postth on which Mian Abdul Aziz held a lien and, therefore, he cannot be held to have been appointed against a substantive vacancy so as to claim the determination of his seniority under sub-rule (2)
(a) of rule 10.
15. Having considered the material placed before us, we have come to the conclusion that it has not been established that the appellant was appointed against a substantive vacancy. Our reasons are that in the requisition form sent by the Government,14 available vacancies were mentioned and Mr. Ihsan-ul-Haq Sulemani, appellant, was placed at No. 15 in order of merit so that he was not appointed against one of the existing available vacancies. In promoting him, he was promoted in officiating and not in substantive capacity. In 1968, in the seniority list as on 1st February 1968, he is shown to have been appointed against a vacancy, on which Mian Abdul Aziz held a lien, so that not even by 19615 lie was, appointed to a substantive vacancy. From the seniority list as on Ist February 1968, it is clear that on and after 6th November 1962 when the 1962-Rulescame into force, fixing 75 per cent ratio for promotees and 25per cent ratio for direct recruits, no less than. 20 promotees were promoted up to 1965, and only respondents 2 and 3 were appointed as direct recruits in 1967 and 1968. The ratio for recruitment is provided in rule 6 of the 1962-Rules. Though 25 per cent ratio was reserved for direct recruits, all the vacancies were filled by promotee from6-11-1962 to 1-4-66 and it is for the first time on 22nd November 1967, that Mr. Nur Muhammad Khan respondent No. 2 was directly appointed. Thus it is clear to us that onwhich the appellant was appointed, no substantive vacancy was available to him as a promotee according to the ratio reserved for promotees. It has not been proved that any substantive vacancy was available. Our attention leas been drawn to the order of 13th September 1965, whereby he was appointed as inspector of Schools, but this appointment was on his own pay and grade and was purely ad hoc and temporary appointment, which conferred no light on him for a post inW.P.E.S. (I). The approval of the Public Service Commissionstill to be obtained for his promotion to W.P.E.S. (I). It is true that the Provincial Government has assigned to the appellant date of promotion to W.P.E.S. Class I w. e. f.
16. 16th September 1966, but it is not the date, of appointment, but the nature of vacancy to which he was appointed which determines under the rule his inter se seniority vis-a-vis respondents 2 to 6.
17. As respondents 2 to 6 were appointed to permanent vacancies, but the appellant was not appointed to a substantive vacancy, the respondents 2 to 6 have correctly been shown senior to the appellant in the impugned seniority list.
18. The appellant has a good case for seniority against Dr. Muhammad Hanif, respondent No. 7, in so far as the latter was appointed to a temporary vacancy on 27-8-68, when the appellant was appointed on 16-9-65. Both having been appointed against temporary vacancies, their seniority has to be determined under sub-rule (2)(a) from the date of continuous appointment in the case of the appellant and the date of appointment in the case of officer appointed by initial recruitment.
19. According to these dates the appellant is senior to Dr. Muhammad Hanif, respondent No. 7, and we declare hind so.
20. We may mention that a chart was produced before us, which showed the allocation of vacancies to various officers. According to this chart, substantive vacancy was available to Mr. Ihsan-ul--- Haq Sulemani, appellant from 1st July 1968. We have not, however, based our decision on this chart.
21. For the reasons stated above, I reject the appeal against respondents 2 to 6, but accept the same against respondent No. 7 and declare the appellant senior to Dr. MuhammadHanif, respondent No. 7.
22. BASHIR AHMAD KHAN (MEMBER).-I agree with the above order.
23. ASHFAQ ALA KHAN (MEMBER).-I agree with the above order as far as it pertains to seniority between the appellant and respondents No. 2 and 3 Mr. Nur Muhammad Khan is senior to the appellant by reason of having been appointed to a substantive vacancy earlier. However, other respondents, who have been shown as appointed after 1-7-68, which is the date mentioned as being of regular appointment in Notification No. SO(SE)-1/3-68, setting out seniority as on, 1st December 1970. By virtue of this Notification, Mr. Ihsan-ul---Haq Sulemani, appellant would be deemed to be holding a substantive post from 1.7-68. As such he would be senior to Dr. Muhammad Hanif, Dr. Muhammad Nawaz, Mr. Ghulam Muhammad Malik and Dr. Asghar Alt, Qazi Saghir-ul-Haq, having been appointed w. e. f. 9-2-68 and having been confirmed from the same date, would be senior to the appellant. Mr. Bashir Ahmad Assistant has admitted that the date of regular appointment, namely 1-7-68 in respect of the appellant in the seniority list as on Ist December 1970, is the date by which a substantive vacancy was available.
24. In terms of the order of majority, we dismiss the appeal against Mr. Nur Muhammad, Qazi Saghir- ul-Haq,Dr. Asghar Ali, Mr. Ghulam Muhammad Malik and Dr, Muhammad Nawaz, respondents but accept the appeal against Dr. Muhammad Hanif, respondent No. 7. The parties are directed to bear their own costs.