1. SHAFIUR RAHMAN, J.--The petitioners, in all nine in number, are all civil servants employed as Engineers in the Communications and Works Department of the Government of the Punjab. So, are the individual respondents contesting their claim. By nine separate petitions, eight of them (C.P.1284/83 to C.P.129i/83 forming one category) seek leave to appeal against the judgment of the Punjab Service Tribunal, Gated 12-9-1983 and another (C.P.971/1983 forming a category by itself) seeks leave to appeal against the judgment of the same Tribunal, dated 27-4-1983. The first category of eight petitions involves question of correct placement of the petitioners and respondents in the seniority list of Executive Engineers (N.P.S. 18) dated 10-9-1981. The second category involves the correct placement of petitioner and respondents in the same seniority list but in the grade of Superintending Engineers (N.P.S. 19y. The Tribunal has rejected their claim to be placed senior to the respondents in the seniority list.
2. The case of the eight petitioners (in the first category) before the Tribunal was that they alongwith the individual respondents were recruited as Temporary Engineers in the Communications and Works Department of the Government of the Punjab and the rule of seniority at the the of their entry into service, as per letter of appointment and integration circular was the age on date of appointment as Temporary Engineer and within the same batch passing the departmental examination prescribed for recruitment to the post of Temporary Engineers. All the petitioners happen to be senior to the contesting respondents as Temporary Engineers. On 28-11-1974 the Government of the Punjab notified a seniority list as it stood on 1-7-1970. In that list these petitioners as well as the respondents were shoes n as permanent Class II officers and the petitioners were shown senior to the respondents. This notification was not directly challenged by anyone. However, when it came to promotion in the next higher grade of Executive Engineer, the respondents and not the petitioners were promoted earlier. This happened because under the rules the promotions were to take place on regional cadre basis and the petitioners and respondents being dispersed in different regional cadre could not in spite of seniority in the lower grade compete against each other in the matter of promotion. In showing their seniority as Executive Engineer this earlier promotion of the respondents to the higher grade was reflected and the seniority of the petitioners as Temporary Engineers or as Class II Engineers was not carried forward.
3. The contention of these eight petitioners before the Tribunal was that as they were senior to the respondents in the next lower grade of Class II Engineers and even as Temporary Engineers the Explanations I and III of rule 15 of the West Pakistan Service of Civil Engineers Buildings and Roads Class-I Rules, 1967 (hereinafter referred to as Class I Rules) came to their rescue and they were entitled to carry forward their seniority from the lower grade and they should have been placed senior to the respondents without disturbing the dates of promotion.
4. In the case of Salim Bhalli (C.P.971/83) the facts were somewhat exceptional. Mr. Bhalli was removed under M.L.R. 114 from the post of Executive Engineer on 12-3-1972 but on a review petition he was re-instated in service on 12-8-1973. In the meantime, Habibur Rahman; the contesting respondent who was junior to him as an Executive Engineer among others was promoted as Superintending Engineer on 25-1-1973. Mr. Bhalli got the promotion as Superintending Engineer on 1-1-1974. It was his contention that on the strength of the same explanations I and III to rule 15 of the Class I Rules, he should be granted seniority over Habibur Rehman in the grade of Superintending Engineer. He has also sought pro forma promotion from an earlier date which representa--tion, it is said, is still pending with Government The Service Tribunal did not dispute as nonelse did, the fact that the petitioners were senior as Temporary Engineers to the respondents.- The Tribunal, however, held that benefit of explanations Nos.I and III of rule 15 was not available to any of the petitioners for claiming seniority over the respondents in the grade of Executive Engineers for the reason that these Temporary Engineers were never duly inducted into Class 11 Service. Unless they were inducted into Class II Service they could not seek and obtain the benefit of Explanations I and III.
5. The learned counsel for the eight petitioners has taken up the following grounds for challenging the decision of the Service Tribunal:-
(i) The Tribunal unjustifiably, in the absence of any challenge from any quarter, interfered with the notification, dated 28-11-1974. It was the case of all the three parties before the Tribunal, namely, the contesting parties and the department that the petitioners and the respondents stood inducted into Class-II Service and the advice or recommendation of the Public Service Commission for their promotion as Executive Engineer was also based on that assumption. Even if such an induction suffered from any infirmity it was for the department to have rectified it in the but they did not do so collusively with the respondents and the omission should not affect the petitioners because that placed both the parties at par.
(ii) The induction into Class II service had become unnecessary in view of the notification of the Government, dated 22-7-1971 upgrading all Engineers to Class-I and the subsequent abolition of the nomenclature and classes in service by statutory rules. The petitioners should be taken to be inducted into Class-I service without complying with the requirements of Class-II Rules.
6. (i.e) The promotions region wise were not in strict conformity with the rules nor the cycle system of promotion was fully implemented in all its details. The petitioners should, therefore, be allowed the benefit of Explanations I and No.II of the Rule 15 of the Class I Rules.
(iv) There was an express undertaking given by one of the respondents, namely, Nisar Malik on his retransfer to the Punjab that he would not claim seniority over those already holding the post of Executive Engineer on 7-6-1972. This had to be reflected in the seniority list of Executive Engineers and he should have been placed junior to Sardar Muhammad. As he had earlier failed in avoiding this undertaking before the Service Tribunal and before the-Supreme Court the seniority list should not have been prepared in defiance of it. Similarly Mr Muhammad Akhtar respondent, on his retransfer to Punjab from Sind lost his seniority.
7. The dates of continuous appointment of the eight petitioners in the first category, in the grade of Executive Engineer, are all of the period after the enforcement of Class I rules and subsequent to that of the contesting respondents. Rule 11 of the Class I rule will, therefore, apply. The general rule of seniority in such cases is to reckon their seniority from the date of their continuous appointment in that grade, with to exceptions. The first was that period of purely temporary appointment ordered in public interest was not to count and the second that in case there was no supersession of a senior officer in lower grade for purposes of promotion, the senior officer on promotion on a later date was to rejoin his seniority. The law laid down by this Court in Khushi Muhammad's case PLD 1970 SC 203 was that irrespective of the reservation, or quota for promotion (which would include cycle' system) those promoted earlier were to rank senior. So, the general rule of seniority as laid down by rule 11 or by this Court in Khushi Muhammad's case does not favour the petitioners. The petitioners, however, claim the benefit of the exception that they were not in fact superseded because the cycle system of promotion was in vogue, which prevented them from being considered for promotion. The Tribunal has not denied this claim of the petitioners and in these proceedings we are not called upon to necessarily adjudicate on the correctness of this view.
8. The Tribunal proueece6 mainly on the ground that as Temporary Engineer, the petitioners and respondents could claim absorption in Class 11 or junior Class 1 and then promotion to senior Class
1. The petitioners and the respondents having never been inducted into Class II or Class I junior could not carry forward their seniority from lower grade to the higher. This has been consistently the view of the Tribunal, For example on 12-11-1973 in the case of Muhammad Abdul Majid (Case No.108/75 of 19731, it held as follows:- "As the date of continuous appointment of the appellant as officiating X-EN is later than the date of continuous app6intment of respondents 2 to 10, as Officiating X-EN, it is not possible to declare the appellant senior to them unless he can take advantage of Explanations I and III of sub-rule (2) of rule 15, of Class I Rules which he claims before us. It is contended on his behalf that since he was basically senior as T . A . E. He was entitled to absorption earlier into Class 11 and to be promoted to Class 1 (junior) earlier than respondents and not having been superseded by them he is entitled to be declared senior to them as Officiating. XEN under the Explanations I and 111 to sub-rule (2) of Rule 15. This claim cannot be adjudicated upon at this stage unless absorption of the parties to Class 11 and Class I (Junior) takes place."
9. This view was repeated in following cases:-
(i) Case No.128/82 of 1973 (laved lqbal v.Punjab) decided on 12-12-1973.
(ii) Case No. 107/79 of 1973 (Muzaffar Iqbal Sk. v. Secretary of Punjab), decided on 27-12-1973.
10. (i.e) Case No.129/87 of 1973 (Noor Ahmed Malik v. Communication and Works Department), decided on 1-1-1974.
(iv) Case No. 131/92 of 1972 (Shaukat Ali v. Secretary C & W), decided on 2-1-1974.
11. The petitioners claimed their absorption Class Ii service on the basis of notification, dated 28-11- 1974 but the Tribunal has held as a fact that it was not so. We do not think that this notification can acquire legal efficacy only because it was not challenged by those affected by it. The upgradation of all Graduate Engineers to Class I did not have the effect of making all Graduate Engineers members of Class I service. This Court had held in Pakistan v. Hassumani PLD 1962 SC 409 that "Once a service is constituted by integration and encadrement, the rights of those within the service begin to take shape as against persons who are not within the service, and the rights of the members of a service inter se also assume a definite character by the at of the Government in constituting the service."
12. Punjab Civil Servants (Change in Nomenclature of Services and Abolition of Gasses) Rules. 1974 was enforced on 5th July, 1974 under section 23 of Punjab Civil Servants Act. It to cannot be of help to petitioners for it followed and did not precede the enforcement of Civil Servants Act. Section 7(2) of the Civil Servants Act made the seniority dependent on date of regular appointment doing away with the benefit of Explanations attaching to rule 15 of Class I Rules.
13. The approval by the Secretary of a very long note recorded by his Deputy Secretary cannot have the legal effect of inducting the parties to Class 11 services because for accomplishing it the Public Service Commission had to be consulted, and the Secretary even as Competent Authority could not dispense with the requirement of consultation with the Public Service Commission. Besides, he approved the list on 7-10-1974 provisionally and for inviting objections. He did not put his final seal of approval. He could not do so The legal effect of undertaking given by respondent Nisar Malik has been recognised by the Tribunal to the full satisfaction of the petitioners but the difficulty has been experienced in implementing it and it is expressed in the following words in Case No. 131/92 of 1972 decided on 2-1- 1974: "Our attention has also been drawn to three cases, namely Case No.102/60 of 1973 by Mr. Khushnood Ahmad decided on 10th September, 1973, Case No.103/68 of 1973 by Mr. Muhammad Akbar Khan decided on 14th September, 1973 and Case No. 108/75 of 1973 by Mr. Abdul Majid decided on 12th November, 1973 and it is pointed out that since in these cases, certain persons junior to these respondents have been declared senior to some Officers senior to the appellants, there is a practical difficulty and even an impossibility in relegating this respondent in seniority below his position at 84 in the impugned seniority list. It is also pointed out in this connection, that since our orders in t se cases are binding on the Government, it is not possible for this respondent to be relegated in seniority below the appellant. We are conscious of the fact that our previous orders are binding on the Government but we cannot but hold on the material now produced before us that this respondent was transferred to the Punjab Province on the condition imposed which was accepted by this respondent and in view of this, it is open to the Government to assign a new place of seniority to this respondent in a seniority list of officiating Executive Engineers, as and when revised."
14. As regards the other respondent Mr. Muhammad Akhtar, loss of his seniority is claimed on the ground of his obtaining voluntary transfer from the Province of his allocation viz. Sind to Punjab. But the Government explained it by stating that: "This respondent was wrongly allocated to the province of Sind he was, therefore, re-allocated to the Punjab Province in consulta--tion with Government of the Punjab, Services and General Administration and Information Department as he belonged to Punjab."
15. There is no material on our record to doubt this fact, and establish what the petitioner alleges.
16. As regards the service appeal of Mr. Saleem Akhtar Bhalli, we find that unlike the promotion to the grade of Executive Engineers, the promotion to the grade of Superintending Engineer is under the rules "on merit from among members, of the service holding posts of Executive Engineers with at least five years service as such, seniority being considered only in the case of offers of practically the same standard of merit". This petitioner was retired under M.L.R 114 and on review his re- instatement in service was not with full consequential benefits. He had been allowed only subsistence allowance for the intervening period. It would be, therefore, difficult for him to claim as of right anything more than what is spelt out in Establishment Division's Memorandum (No.6/4/72- Rev., dated 3rd November, 1973). The benefit of seniority or pro forma promotion is not assured to him.
17. We find that none of these petitions raises a question of law of public importance, which may require further examination in this Court. Hence the leave to appeal is refused in all these nine petitions.