' Muhammad Aslam, Stenographer, Office of the Director of Agricultural Engineering, Multan, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Province of the Punjab through Secretary to Government of the Punjab, Agriculture Department, Lahore, the Director-General Agriculture (Field) Punjab, Lahore, Director of Agricultural Engineering, Faisalabad, Director of Agricultural Engineering, Multan, Messrs Altaf Hussain, Muhammad Afzal, Nazir Ahmed, Muhammad Aslam Shahid, Muhammad Iqbal Shah, G. M. Masood, Ghulam Yasin, Muhammad Yousaf, Muhammad Yaqub Khan, Muhammad Aslam, Majeed Ahmed and Muhammad Mushtaq, as respondents.
2. By virtue of this appeal he has prayed that the appeal he accepted and the order of respondent No, 2, dated 16th January, 1982 and earlier order, dated 25th January, 1981, be declared as illegal and the appellant be declared senior to respondents Nos, 5 to 16 and consequent relief of promotion from 7th March, 1974 the date when the junior was so promoted, be granted.
3. Brief facts of the case are that the appellant was placed at No, 1 in the seniority list of 1971, as Stenotypist. During the year 1974, one Ghulam Sarwar Shah, who was placed at No, 4 of the seniority list of Stenotypists was promoted as Stenographer N.P.S. 8, by respondent No, 3 vide order dated 16th April, 1974. The appellant made a representation to respondent No, 3 against the said promotion and on the basis of the said representation the appellant was promoted as Stenographer in N P.S. 8 w,e,f, 9th March, 1975 for a period of 6 months by respondent No, 3, vide order dated 24th July, 1975. The appellant dissatisfied with the said promotion made another representation to respondent No, 3 and requested that he should be promoted from the date on which he said Ghulam Sarwar Shah was so promoted. However. The appellant was suo moto promoted as Stenographer in NPS-l2 by respondent No, 3 vide his order, dated 28th February, 1977.
After the said promotion the appellant made representation to respondent No, 3, requesting him that the promotion of the appellant should take place from 7th March 1974, the date on which his junior Ghulam Sarwar Shah was so promoted. This representation was however rejected. Aggrieved against this rejection the appellant filed appeal to respondent No, 2 on 9th May, 1878, but no reply was given to him and thus he pursued his case through an appeal which again was rejected by respondent No, 2, vide his order dated 25th January, 1981. Further appeal was submitted to respondent No, 1 the next higher authority on 27th May, 1981 in which of earlier appeals to respondent No, 2, was also made irately a reply was received by the appellant on 14th February, 1982, in which it was mentioned that no appeal was competent before respondent No, 1 under section 21 (2) of the Punjab Civil Servants Act, 1974. Hence this appeal.
4. I have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case with their assistance.
5. Learned counsel for the appellant has submitted that as the appellant was shown at No, 1 in the seniority list of 1974, he was entitled to be promoted from the date of Ghulam Sarwar Shah was so promoted. According to learned counsel for the appellant this vacancy should have been filled by the appellant and not by Ghulam Sarwar Shah. It has been assailed that the claim of the respondent Government as well as of the contesting respondents that Ghulam Sarwar Shah was promoted against ex-cadre post and the appellant had no right, was untenable as the legal position would be that under the existing rules the promotion against ex-cadre post is to be made from amongst regular cadre and not by a person who was an out-sider. It was further argued that the factual position according to statement showing distribution of staff sanctioned on permanent basis w,e,f, 1st July, 1974, under the scheme for the development of Agriculture Mechanization and Soil Conservation (Merd) in the Punjab during the year 1974.75, would bring out that the post of Stenographer was born on the cadre of Agriculture Engineer, Lahore, and thus the only person who could be eligible for the said post, was the appellant and none else. It may be mentioned here that Ghulam Sarwar Shah has since left the Department, therefore, he was not impleaded as respondent in this case. Learned counsel for the appellant while elaborating the background of this case has submitted that the post of Superintendent is always filled from amongst Assistants, Head Clerks, Accountants and Senior Auditors and Stenographers and those who were placed on the same seniority in 1974. He made a grievance that in view of injustice done to the appellant that when next vacancy of Superintendent occurs and if the appellant's seniority is not adjusted w,e,f, 7th March, 1974, he will not be able to compete with his colleagues and will suffer an irreparable loss of his seniority. He has once again stoutly contested the claim of the respondents Nos, 2 and 3 that the post against which Ghulam Sarwar Shah was promoted was an ex-cadre post. Learned counsel has based his claim on the strength of the statement showing the post as a regular as mentioned in the earlier part of our judgment.
6. ' On the other hand the respondents without disputing the fact that the appellant was definitely shown senior in the seniority list of 1974, have submitted that in fact the post was an ex-cadre post, therefore they were within their right to promote Ghulam Sarwar Shah against the said post as he also belonged to the ex-cadre strength, it has been further argued on behalf of the respondents that the appellant himself diverted the line of his promotion from Steno-Typist, Stenographer to his original cadre as Junior Clerk, Assistant, therefore, the promotion of the appellant h got bee considered at that time and Ghulam Sarwar Shah was promo graphed, as such the appellant cannot claim his promotion over said Ghulam Sarwar Shah when he had himself opted for the cadre of Junior Clerk, Senior Clerk, Assistant and so on. In the end it has been submitted that the name of the appellant exists in the seniority list issued by the Director Agriculture Engineering, Multan and he was assigned correct seniority in the cadre of Assistant as per his promotion as Stenographer, therefore, the appeal of the appellant is liable to be rejected.
7. I have taken into consideration the arguments so advanced by the parties and find that the correct position would be that the appellant had opted for Senior Clerk cadre in 1968 but in 1974 when Ghulam Sarwar Shah Steno-typist a junior man was promoted as Stenographer, the appellant made a representation, on the basis of which he was promoted as Stenographer w,e,f, 9th March, 1975 and was also confirmed as Steno-typist from 9th July, 1975. The result would be that even if the appellant had any lien as Senior Clerk that stood terminated on 1st June, 1974. It is further established from the fact that the appellant received a letter No, 15317/2-617 (E-III), dated 26th June, 1977, from respondent No, 3, in answer to his representation made through Agriculture Engineer' Bahawalpur to respondent No, 3 on 7th June, 1977, according to which he was informed that his lien of cadre in Senior Clerks stand terminated after the appellant was confirmed as Steno- Typist. We have also perused the entire correspondence on the subject and find that the respondents never raised this point against the appellant throughout the said correspondence but have taken this stand now before us at a very belated stage. Once it is found that the appellant was working as Stenographer on regular basis since 1st March, 1977, it would be too late in the days to say now that the appellant's lien in the senior clerks cadre still subsists. I have also examined the case so as to find the actual seniority position of the appellant and are fully satisfied that he was at No, 1 of the seniority list when Ghulam Sarwar Shah was appointed in supersession of appellant's seniority. In this manner, I repel the argument of the respondents that the appellant himself diverted the course of his promotion and he was still, on the strength of senior clerks cadre, therefore, he was not entitled to claim the same. With regard to the point whether the post was ex- cadre or not, I have no hesitation to hold, after consulting the record that the post of Stenographer was never ex-cadre post but was a regular cadre post available at the time when the appellant's junior Ghulam Sarwar Shah was promoted. In view of the facts on the record as well as established facts borne out from the correspondence relating to appellant's representation, I am fully satisfied with the claim of the appellant that his lien was terminated as Senior Clerk and he was for all purposes born on the strength of Stenographer on the establishment of Director Agriculture Engineering, Faisalabad.
8. In the light of the above analysis of the case, I proceed to accept the appeal, set aside the impugned seniority list as well as order of respondent No, 2 dated 16th January, 1982 and 25th January, 1981 and hold that the appellant would be senior to all the contesting respondents in this case. 1, therefore, direct respondents Nos, 1 to 4 to correct the seniority list accordingly and to allow the appellant to again rightful rights which have been so ordered by me, in the earlier part of my judgment. However, there will be no order as to cost.