1. ' S. ABDUL JABBAR KHAN, (CHAIRMAN). -By this amended appeal under section 8 (1) of the Punjab Civil Servants (Appellate Tribunal) Ordinance, 1970, Ch. Muhammad Tufail, appellant, who is now Superintendent (Administration) in the office of Chief Engineer, Irrigation, Bahawalpur, prays that he may be treated as senior to respondents Nos, 4 to 15 in the grade of Junior Superintendent, and that respondent No, 1 may be directed to amend the seniority list of Junior Superintendents as it stood on 31st July, 1971 (Annexure `J') accordingly. When this appeal was originally lied, seniority was claimed against respondents Nos, 4 to 11, because in the seniority list, Messrs Jalil Ahmad, Muhammad Nawaz, Mehar Haq Nawaz, Mehar Din and Abdus Subhan respondents were mentioned senior to the appellant, their names were ordered to be deleted from the seniority list on 2nd October, 1971. During the pendency of the appeal, on 1st April, 1972 the Superintending Engineer restored the names of Messrs Muhammad Nawaz, Mehar Haq Nawaz, Mehar Din and Abdus Subhan at serial Nos, 10 to 13 of the seniority list, thus deleting the name of Mr. Jalil Ahmad therefrom. This led the appellant to request us to adjourn the hearing of the appeal on 8th April, 1972 in order to implead the respondents who were added by order, dated 1st April, 1972. The appellant now claims seniority in the rank of Junior Superintendent over respondents Nos, 4 to 15.
2. ' The appellant is present in person. The Superintending Engineer and the Secretary to Government of the Punjab, Irrigation and .Power Department, respondents Nos, 1 and 3 are not represented before us. Mr. Muhammad Nawaz, who is a respondent in the appeal, appears on behalf of the Chief Engineer, respondent No, 2, Messrs Akbar Ali and Fida Hussain, respondents Nos, 5 and 10 having retired from service are not present before us. Messrs. Syed Mubashir Hussain, Qurban Hussain, Bashir Ahmad, Abdus Samad, Allah Bakhsh, Asghar Ali, Muhammad Nawaz, Mehar Haq Nawaz, Mehar Din and Abdus Subhan, respondents Nos, 4, 6 to 9 and 11 to 15 are present in person.
3. Sh. Munir Ahmad, Advocate, appears on behalf of respondents Nos, 4, 6 to 9, 11 and 14.
4. ' On 2nd January, 1952, the appellant was appointed as a Junior Clerk in the office of the Superintending Engineer, Baghdadul Jadid and was confirmed on 1st April, 1953. He was promoted as offg. Senior Clerk on 6th June, 1954 in the office of the Assistant Director Agriculture, Bahawalpur.
5. This officer was then under the Chief Engineer, Irrigation and Secretary to the Government of Bahawalpur State. From 7th July, 1954, he was appointed as a Stenographer in the grade of Rs, 120- 8-200/ 10-250 in the office of Secretary Irrigation and Power of the State, but was reverted as Stenotypist on 12th November, 1954. On 6th November, 1955, he proceeded on transfer to Quetta and joined as Stenotypist in the office of Deputy Chief Engineer on 7th November, 1955, but was promoted as Stenographer in the same office on 1st February, 1956. On 1st May, 1962 his lien in the Bahawalpur Region of the Irrigation Department of Bahawalpur was abolished. He was promoted as offg. Superintendent in the office of Chief Engineer, which was upgraded on re-organization on 1st May, 1962, but was reverted as Stenographer on 15th October, 1964, and was again promoted as offg. Superintendent, after the approval of the Divisional Recruitment Board in the Zonal Office on 1st December, 1966. This is the date from which he has continued to officiate as Superintendent. He was confirmed as Superindent on 2nd December, 1967 w,e,f, 1st December, 1967. On 1st July, 1970, the date of disintegration the appellant was a confirmed Superintendent. On 4th June, 1970, the appellant was allocated to the Punjab Province, but he remained at Quetta upto 13th July, 1971.
6. Having received the order of repatriation dated 28th June, 1971 posting the appellant in Bahawalpur Region in the public interest, he was relieved from duty at Quetta on 13th July 1971, and he reported for duty at the office of Chief Engineer, Irrigation, Bahawalpur on 15th July, 1971. On 24th July, 1971, he was actually posted as Superintendent in that office.
7. ' The impugned seniority list as on 9th September, 1969 and corrected upto 31st July, 1971 was published on 31st July, 1971. Among the Superintendents, respondents Nos, 4 to 15 were shown at Serial Nos, 2 to 13, 'while the appellant was shown at Serial No,
15. He was thus show junior to them.
8. Against the column showing the dates of appointment to the grade of Superintendent, two dates were mentioned, against his name, namely, 1st December, 1966/24th July, 1971. 1st December, 1966 is the date of his continuous appointment as Superintendent, while 24th July, ,1971' was the date of his actual posting as Superintendent in the office of Chief Engineer, Irrigation, Bahawalpur after his allocation to the Punjab Province. He has been shown in the seniority list at Serial No, 15 by name of the date on which he joined the office of Chief Engineer, Irrigation, Bahawalpur on 24th July, 1971. He is naturally aggrieved by this order and claims that he should have ranked senior to respondents Nos, 4 to 15 as his date of continuous appointment as Superintendent is earlier than theirs.
9. ' Syed Mubashir Hussain, respondent No, 4 was appointed as offg. Junior Clerk on 13th March, 1948, and was confirmed from 1st April, 1951, He was appointed as Stenographer on 27th July, 1971 and was confirmed from 1st March, 1952. He was promoted as offg. Superintendent from 28th February, 1968 and confirmed from 1st May, 1969. His date of appointment as Superintendent is thus later than the date of officiation of the appellant as Superintendent.
10. ' Mr, Akbar Ali, respondent No, 5, became offg. Junior Clerk On 8th January, 1944 and was confirmed from 1st April, 1948. He was promoted as offg. Senior Clerk from 8th June, 1948 and confirmed from 1st April, 1951. He was promoted as offg : Head Clerk from 1st December, 1955 and confirmed from 5th May, 1962. He was promoted as offg, Superintendent from 2nd June, 1968 and confirmed from 1st June, 1969. His date of continuous appointment as Superintendent is later .Than the date of continuous appointment of the appellant as Superintendent.
11. ' Mr. Qurban Hussain, respondent No, 6, was appointed as offg. Junior Clerk on 2nd October, 1940 and was confirmed from 1st March 1945. He was promoted as S.D.C. On 1st March, 1949, and as Senior Clerk on 28th June, 1950. He was confirmed as "Senior Clerk on 1st April, 1951. He was promoted as Head Clerk on 2nd January, 1956 confirmed from 6th May, 1962. He was promoted as offg. Superintendent from 30th November, 1968 and was confirmed from 1st March, 1970. His date of appointment as Superintendent is also later than the date of continuous appointment of the appellant as Superintendent.
12. ' Mr. Bashir Ahmad, respondent No, 7, was appointed as offg. Junior Clerk on 20th April, 1944, and was confirmed from 1st March, 1948. He was promoted as S.D.C. On 1st March, 1944 and was confirmed from 1st March, 1949. He was promoted as offg. Senior Clerk on 9th February, 1949, and confirmed from 1st April, 1951. He was promoted as offg. Assistant on 25th June, 1956 and confirmed from 7th May, 1962. He was promoted as offg : Superintendent on 30th November, 1968, and confirmed from 3rd March, 1970.
13. ' Mr. Abdus Samad, respondent No, 8, was appointed as offg. Junior Clerk on 20th September, 1948, and was confirmed from 1st March, 1951. He became offg. Stenographer on 30th May, 1953 and was confirmed from 30th December, 1953. He was promoted as offg. Superintendent on 5th February, 1969, and was confirmed from the same date.
14. ' Mr. Allah Bakhsh, respondent No, 9, was appointed as offg. Junior Clerk on 20th October, 1943 and was confirmed from 1st March, 1948. He was promoted as offg. Senior Clerk on 9th March, 1948 and confirmed from 1st April, 1951. He was promoted as offg : Assistant on 14th October, 1955 and was confirmed from 8th May, 1962. He was further promoted as offg. Superintendent from 1st April, 1949, and has not yet been confirmed.
15. ' Mr. Fida Hussain, respondent No, 10, was appointed as offg. Junior Clerk on 30th November, 1940, and was confirmed from 1st March, 1945. He was promoted as offg. Senior Clerk on 1st June, 1948, and was confirmed from 1st April, 1954. He was promoted as offg. Head Clerk from 22nd December, 1958. He was further promoted as offg. Superintendent on 21st August, 1969. He has retired from service.
16. ' Mr. Asghar Ali, respondent No, 11, was appointed as offg. Junior Clerk on 28th February, 1952, and was confirmed from 1st April, 1953. He was promoted as offg. Senior Clerk from 7th October, 1953. He was made offg. Stenographer on 19th May, 1954, and has been confirmed from that date. He was actually promoted as offg. Superintendent from 20th November, 1969 and has been confirmed from that date. He has since been assigned 25th May, 1967 as the date of his promotion as offg : Superintendent.
17. ' Mr. Muhammad Nawaz, respondent No, 12, was appointed as Junior Clerk on 16th June, 1938 and was confirmed. He became S.D.C. In 1944. He was promoted as offg. Accounts Clerk on 11th October, 1947, and was confirmed from 1st November, 1949. He was promoted as offg. Head Clerk from 17th April, 1953, and was confirmed from 1st July, 1987. He was promoted as offg. Superintendent on 14th November, 1958, but he was later posted as Head Clerk, which meant his reversion. He claims 14th November, 1958 as the date of his continuous appointment because he is still disputing with the Department his reversion to lower rank. We see from the order, dated 8th May, 1972 of the Chief Engineer, Irrigation, Bahawalpur, that he has been given pro forma promotion as Circle Superintendent from 30th December, 1966, which is the date from which his junior was promoted as Circle Superintendent. Therefore, it appears that his actual date of promotion as Superintendent is 24th October 1968, as claimed by the respondents.
18. ' Mehar Haq Nawaz, respondent No, 13, was appointed as offg. Junior Clerk on 24th September, 1938 and confirmed from 9th June, 1943. He became S.D.C. On 6th December, 1944, and was confirmed from 15th August, 1947. He was promoted as Accounts Clerk on 5th March, 1947 and confirmed from 16th May, 1951. He was further promoted as offg. Head Clerk on 19th December, 1954, and was confirmed from 1st January, 1959. On deputation to WAPDA, he was promoted as offg.
19. Superintendent on 5th May, 1965. His promotion in the department was made from 5th February, 1970.
20. ' Mr. Mehar Din, respondent No, 14, was appointed as offg. Junior Clerk on 15th April, 1947 and was confirmed on 1st April, 1948. He was promoted as offg. Senior Clerk on 1st December, 1949, and was confirmed as S.D.C. On 1st May, 1950, and as Senior Clerk on 1st March, 1952. He was promoted as offg. Assistant on 14th October, 1955 and was confirmed from 9th May, 1962. He was promoted as offg. Superintendent on 5th February, 1970.
21. ' Mr. Abdus Subhan, respondent No, 15, was appointed as offg. Junior Clerk on 26th December, 1940 and was confirmed from 1st March.
22. 1944. He was promoted as Senior Clerk on 2nd December, 1950 and confirmed from 1st April, 1952.
23. He was promoted as offg. Assistant on 14th October, 1955 and was confirmed from 10th May, 1962.
24. He was promoted as offg. Superintendent on 10th July, 1970.
25. ' From the above particulars, it is apparent that the date of continuous appointment of the appellant as Superintendent is earlier than the date of continuous appointment of respondents Nos, 4 to 15. It is also pertinent that the appellant was allocated to the Punjab Province and his rights are governed by Article 17 of the Province of West Pakistan (Dissolution) Order, 1970. This Article provides as under :- "17. Persons in the service of Pakistan.-(1) Subject to the provisions of this Order and any order made under Article 20, every person, not being a member of an All-Pakistan Service or a Civil Service of the Centre, who, immediately before the appointed day, was in the service of Pakistan in connection with the affairs of the Province of West Pakistan, at whatever place he may for the time being be serving, shall be deemed to be serving in connection with the affairs of the new Province in which such place is situated.
(2) Any person who, immediately before the appointed day, was a member of a civil service of the Province of West Pakistan and is, on that day, serving in connection with the affairs of the Centre in the Islamabad Capital Territory or the Centrally Administered Tribal Areas or in any other place not forming part of any of the new Provinces, shall, as from that day, be a member of the corresponding civil service of the new Province to which he may be allocated.
(3) Every person referred to in clause (1) or clause (2) shall be entitled to the same terms and conditions of service as respects remuneration, leave and pension, and the same rights as respects disciplinary matters or rights as similar thereto as changed circumstances may permit, as he was entitled to immediately before the appointed day.
26. ' Clause (1) of Article 17 provides that every person other than persons who were members of an .All-Pakistan Service or Civil Service of the Centre, who was before the appointed day in the service of Pakistan in connection with the affairs of the Province of West Pakistan, at whatever place he may for the time being be serving, shall be deemed to be serving in connection with the affairs of the new Province, in which such place is situated, Clause (2) is important insofar as it directs that any person who, immediately before the appointed day was a member of the Civil Service of the Province of West Pakistan, shall, as from that day, be a member of the corresponding civil service of the new Province to which he may be allocated. It is under this clause that allocation of members of the civil service of the Province of West Pakistan was made to different Provinces, and the appellant was allocated to the Punjab Province. Every person falling under these two clauses was entitled under clause (3) to the same terms and conditions of service as respects remuneration, leave and pension, and had the same rights as respects disciplinary matters or rights similar thereto as changed circumstances may permit, as he was entitled to immediately before the appointed day. Consequently, the rights and interests of the appellant on being allocated to the Province of the Punjab were safeguarded by clause (3) of Article 17 and he had a right to count his previous service in the Quetta Region towards seniority when serving in Bahawalpur Region as allocatee of the Punjab Province. On this basis, the seniority of the appellant should have been fixed in accordance with the date of his continuous appointment as Superintendent under rule 9 of the West Pakistan Irrigation Department Ministerial Service (Regional Offices) Rule, 1962, which came into force on 6th November, 1962 and govern not only the appellant but also respondents Nos, 4 to 15 in matters of seniority. Seniority in this context was protected under clause (3) of Article 17 by the words "rights similar thereto" which are safeguards thereby. As the appellant's rights are protected, he had a right to count his service in Quetta Region towards seniority when the seniority list of Bahawalpur Region was prepared. In the impugned seniority list his date or continuous appointment should have been shown as 1st December, 1966.
27. The date 24th July, 1971 should not have been the determining date for the fixation of his seniority.
28. ' Sh. Munir Ahmad, the learned counsel for the respondents contends firstly that the appellant did not have the protection of clause (3) of Article 17 and secondly that being an optee for the Bahawalpur State he had to rank junior most in that region and thirdly that as the respondents were senior to the appellant in the lower grades and have not been superseded by the appellant when he was promoted in the Quetta Region, they are entitled to remain senior to him by reason of Explanation I to rule 9 (1) (b) of the 1962 West Pakistan Rules. The learned counsel further contends that as the appellant was allocated to the Punjab Province, he cannot be deemed to have been allocated to the Bahawalpur Region and is not entitled to the protection of clause (3) of Article 17 of the Dissolution Order. We are unable to accept the contention that as the appellant was not allocated to Bahawalpur Region but was allocated to the Punjab Province, he is not entitled to the protection of clause (3) of Article 17. In fact, under the Dissolution Order, allocation had to be made to the new Provinces and not to the regions. His allocation to the Punjab Province was made by the competent authority and no objection can be taken to such allocation. He was duly posted as Superintendent against a vacant post in the Bahawalpur Region in the public interest by the Secretary to the Government of the Punjab, Irrigation and Power Department, by order dated 28th June, 1971 and no objection can be taken to the allocation and posting.
29. ' It is true that the respondents were senior to the appellant when he was posted in the Bahawalpur State. Immediately after integration he was transferred to Quetta Region and his lien in the Bahawalpur State was abolished on 1st May, 1962. The basic seniority of the respondents over the appellant in Bahawalpur State cannot be taken into consideration for the reasons that the appellant left the region and was confirmed in the Quetta Region. He has not to be treated as an employee of the Bahawalpur State but an allocatee from Quetta Region to the Punjab Province with his rights protected under Article 17 (3) of the Dissolution Order and full effect has to be given to the status which he had achieved in the Quetta 'Region by having been promoted and confirmed as Superintendent. In determining his seniority in Bahawalpur Region, the Explanations do not come into operation, because he became a member of the Bahawalpur Region by reason of his allocation to the Punjab Province.
30. There is nothing to show that the appellant is an optee to the Bahawalpur Region. On the, documents before us he is for all intents and purposes an allocate to the Punjab Province and is entitled to all the rights which are due to him under Article 17 (3) of the Dissolution Order.
31. ' It is further contended by the learned counsel for the respondents that as the appellant became surplus he had to rank junior most and his past service as Superintendent in the Quetta Region could not be counted for purposes of his seniority, but we are unable to accept this contention for the reason that he never became surplus and was in fact posted as Superintendent against a vacant post in the Bahawalpur Region by the Secretary to the Government of the Punjab, Irrigation and Power Department, on 28th June, 1971.
32. ' It is further contended that the allocation of the appellant to the Punjab Province should have been made by the Governor. It is not shown that this allocation was made by an incompetent authority. The order dated 4th June, 1970 allocating the appellant to the Bahawalpur Region must be presumed to have been made by the competent authority and approval of the Governor obtained as required in the letter, dated 18th May, 1970 referred to in the order, dated 4th June, 1970 (Annexure This inference arises by reason of the presumption under section 114 of the Evidence Act.
33. ' For the reasons stated above, we declare the appellant senior to respondents Nos, 4 to 15 and order that he shall be shown senior to them. His appeal is accepted, but the parties are left to bear their own costs.