' The. Brief facts alleged in this petition are that a field staff cadre of mistries, cable jointers, Line Inspectors, Telephone Inspectors, and sub-Inspectors, etc. Existing in the Telephone Department since prior to 1958, was abolished and converted into the cadre of telecommunication technicians on 66% of the total posts in 1959. Apart from them employees of all abolished cadre were also absorbed as Telecom-Technicians on 1-4-1969 and 1-6-1969. The petitioners are directly recruited Telecom-Technicians through competitive examination, having received two years training for the post prior to assuming regular duty. As the merger of cadres and absorption of officials of abolished cadres affected them, they took up the matter with departmental authorities. Ultimately respondent No, 3 decided, vide his letter dated 19-10-1976, that the period spent by directly recruited Telecom-Technicians on training of two years would be counted towards the period determining the 5 years service prescribed under the Recruitment Rules, 1972 for the purpose of eligibility to training as Engineering Supervisors. This order was implemented, and Batches No,8 and 8-A completed their training for promotion to the post of Engineering Supervisor in pursuance of that letter. Later, under pressure of the staff of the abolished cadre this decision was recalled by him through impugned letter dated 6-8-1980. It is prayed that since letter dated 19-10-1976 had already been implemented it could not be recalled through the impugned letter dated 6-8-1980 and therefore, a direction be issued to respondents Nos, 1 to 3 to prepare seniority list in accordance with Recruitment Rules of 1963 and to depute only the senior most Telecom- Technicians to the course of Engineering Supervisors and order respondent No,1 not to send any class to the training school till the decision of this application.
2. Both the petitioners and respondents have examined one witness each as representative witness. The parties stated that their case was basically that of interpretation of rules.
3. P.W.1 Muhammad Yunus Alvi stated that he was directly appointed telecommunication technician on 6-7-1976. Respondents Nos, 4 to 13 were the departmental candidates who have been illegally absorbed as Telecom-Technicians. The seniority list of Telecom-Technicians had not been compiled by the Department till then nor had been circulated in the Lahore Telephone Region. His next promotion would be to the post of Engineering Supervisor. The Rules applicable in their case were Telecom-Technicians Recruitment Rules, 1963 which is Exh.P.W.1/1. Those Rules were modified in 1972 which is Exh.P.W.1/2. Rules for the recruitment for the post of Engineering Supervisors are called the Thgineering Supervisors. Recruitment Rules which is Exh.P.W.1/3. None of the respondents are legally qualified, to hold the post of Telecom-Technician and their absorption is against the law. Prior to the promotion to the post of Engineering Supervisor one year's training in the Training School is compulsory. He produced Exh.P.W.1/4 which is a clarification by Assistant Director-General Staff-I stating that 5 years service prescribed under Recruitment Rules, 1972 was included in the training period and that the Technicians batch 8-A may, therefore, be deputed to E.S. Course of training according to amalgamated seniority. He also produced Exh.P.W.1/5 which is a letter issued by Director Staff of the Office of the D.G. T.&.T. Department conveying the decision that the service period of directly recruited telecommunication technicians will be counted from the date of resumption as regular telecommunication technicians after successful completion of training course.
4. In his cross-examination he admitted that respondents Nos, 4 to 13 were absorbed as telecommunication technicians from 1969 or 1970. He also admitted that the petitioners were appointed after about 4 to 5' years of the absorption of the respondents Nos, 4 to 13. He also admitted that absorption of respondents Nos, 4 to 13 was not challenged by the petitioners in any Court of law so far. Mr. Shahudul Haque, counsel for respondents Nos, 1 to 3 adopted the cross- examination.
5. D.W.1 Abdul Rauf Qureshi stated that respondents Nos, 4 to 13 were absorbed as Telecom- Technicians from 1-4-1969. That order was not challenged by the petitioners in any Court of law. No seniority list of Telecom-Technicians in the L R Region had been compiled. The petitioners performed their duties in the Telephone Exchange Centre, Lahore. Their duty did not include overhead work or climbing the poles or working outside the (telephone) exchange. The salaries of the petitioners in each case is more than Rs,850 p.m. He produced Exh.D.W.1/1 being a copy of letter dated 12-1-1970 from Director-General T.&.T., Karachi to the General Manager, L.T.R., Lahore.
Exh.D.W.1/2 produced by him was a letter issued by Chief Engineer S & M from the Office of the D.G.T & T on the subject of seniority in the case of Telecom-Technicians. Exh.D.W.1/3 was a letter from Ahmed Jamal Director Staff in the Office of D.G. T & T on the subject of determination of seniority in the cadre of Telecom-Technicians. Exh.D.W.1/4 was a telegram from "Gentel" Islamabad to various Officers while Exh.D.W.1/5 is a copy of a telegram, holding the instructions issued on 10-7-1974, determining the seniority, in abeyance. D.W.1/6 states that the 50-50 quota will be observed only for the posts which were created after the absorption of defunct cadre. Exh.D.W.1/7 is Engineering Supervisors Recruitment Rules amended upto May, 1970. During his cross-examination he said that he was appointed as Telephone Cleaner then promoted as Telephone mistry and then as Telecom-Technician. Similarly other respondents excluding the respondents Nos, 1 to 3, did not obtain training of Engineering Supervisors for one year.
6. A perusal of the statement of P.W.1 during his cross-examination shows that while respondents Nos, 4 to 13 were absorbed as Telecom Technicians in 1969-70 all the petitioners were appointed after about 4 or 5 years (i,e, in 1974 or 1975) after absorption of the respondents. Consequently, when the petitioners took up their appointment, the respondents were already in office as Telecom-Technicians. Thus, even if their plea to count their period of two years training towards their seniority is admitted (without conceding and for the sake of arguments only) they would still rank junior to the respondents. Further the petitioners took up offices somewhere in 1974 or 1975. At that time, respondents were. Already serving as Telecommunication Technicians. Consequently, cause of action had accrued to the petitioners to challenge the seniority of those who were already serving before them and about whom the department had already issued definite instructions that they would rank enbloc senior such as through Exh.D.W .1/1 and the letter marked as Exh.D.W.1/2.
They had to challenge the seniority and absorption of the promotee Telecom-Technicians immediately on assumption of their duties as Telecom-Technicians as soon as they were appointed in 1974 or 1975. The case is, thus, hopelessly time-barred. Also since the petitioners took up employment as Telecom-Technicians in 1974 or 1975, they, therefore, acquiesced in their (recent) seniority by accepting their own employment. Thus either they acquiesced in the seniority of respondents or alternatively their petition is hopelessly barred by time. The petitioners ought to have come to the Court at the very first instance, when they had come to know about Government instructions regarding the status of promotee Telecom-Technicians that they would rank enbloc senior to the petitioners. The plea that the same were not brought to the notice of the petitioners is not valid. It was the petitioners who had to know the terms and conditions of their service and they had to inquire as to what was going to be their place vis-a-vis the promotee Telecom-Technicians about whom the departmental authorities had already issued instructions.
7. Exh.D.W.1/1 shows that agreement was concluded between the Director-General T & T and Pakistan Telecommunication Line Staff Union on 16-3-1969, the then existing Inspectors, Line Inspectors, Cable Jointers, Phone Inspectors and Tech. Drillers were to be absorbed as Telecommunication Technicians and their salaries fixed in the scale of Rs,135--315. About their seniority it was stated:- "IV. Seniority of the above staff on their appointment as regular Technicians, will be fixed with reference to their position in their lower cadre. They will, however, enbloc rank senior to the Technicians recruited direct."
8. Thus, the objection that respondents could not be ranked enbloc senior as Telecom-Technicians is without foundation because that was done under a valid agreement concluded with the Pakistan Telecommunication Line Staff Union, under the West Pakistan Industrial Disputes Ordinance, 1968. Since the Director-General, T & T who had concluded that agreement was also authority which laid down the Telecommunication Technicians Recruitment Rules, 1963, he could also modify or amend those Rules.
9. The learned counsel for the petitioners has urged that since the Recruitment Rules did not provide for any relaxation of Rules for such an enbloc absorption of Cable Jointers etc. They were absorbed ultra vires the Rules. Since the Industrial Disputes Ordinance, 1968, which was then in vogue, sanctioned collective bargaining which, permitted changing of terms and conditions of employment of some employees as a result of collective bargaining by an employer and Union, the provision for relaxation of Recruitment Rules, was therefore, provided by the Industrial Disputes Ordinance, 1968. It was, therefore, immaterial that the Recruitment Rules. Did not carry any provision for relaxation of Rules brought about through a resolution of the Government shows that the petitioner was wrong to say that the aforenamed persons were working as Commercial Assistants. There is no document on record to support the petitioner or to belie the respondent regarding the status of those persons. The witness was put to a very lengthy cross-examination but without any effect. Nothing could be brought out from his statement to show that the respondent had acted with mala fide to remove the petitioner. Conversely it appears that the post of the Commercial Assistant was retrenched as the same was considered surplus by the Board of Directors. In this respect the termination order Exh.P.4 is quite clear. The respondent is a Commercial Company and it has to decide for itself as to which post should be allowed to be continued keeping in view its business and financial implications. The Courts should therefore, be slow to interfere in such like situation until and unless some positive male fide is proved regarding the injury to the employee. In the instant case there is no such material on record to justify that the employer i,e, the respondent had acted with positive male fide to remove the petitioner from service. The petition is, therefore, dismissed.