' S. ABDUL JABBAR KHAN (CHAIRMAN).-Syed Nasir Khusro Jaffery, E. A. C., Faisalabad, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Board of Revenue, Punjab, Lahore, through M. B. R. (Revenue), Additional Chief Secretary, Government of the Punjab, Lahore and Messrs Faiz Ahmad Khan, E. A. C., Lahore, Mushtaq Ahmad, E.
A. C., Gojra, Liaque-urRehman Siddique, E.A.C. Multan Division, Furrukh Ahmad Khan, E.A.C. Raja Saeed Akhtar, E.A.C., Sialkot ljaz Ghani, E.A.C., Sargodha and Khalid Majid, E.A.C. Multan Division, as respondents.
2. By vitriol of appeal he has prayed that the impugned list dated 31st December 1982 and final order, dated 7th December, 1983, 31st December, 1983/15th January, 1984, be set aside ; respondents Nos, 3 to 9 be declared junior to the appellant and respondents Nos, 1 and 2 be directed to promote/consider the appellant for promotion as E.A.C. From 11th July, 1973.
3, Brief facts of the case are that the appellant was selected by the Board of Revenue, West Pakistan as 'A' Class candidate for direct appoint meat as Tehsildar alongwith the contesting respondents vide order dated 13th September, 1966, which contained one of the terms that Inter se seniority of the candidates would be such as fixed in the Seniority List. In the said seniority list order of merit of appellant was shown at serial No, 12 whereas the contesting respondents were shown below him from serial Nos, 23 to 31. Appellant joined service on 1st December, 1966 and so the contesting respondents and other selectees of the same batch joined alongwith him. As usual the appellant and 'A' Class respondents were detailed for training and were required to pass Departmental Tehsildari Examination as provided in Tehsildari and Naib-Tehsildari Service Rules.
After joining service as Tehsildar w,e,f, 1st December, 1966, appellant was deputed for 2 years training which was successfully completed on 1st December, 1968. The appellant passed Departmental Examination in four attempts except one paper of criminal law which the appellant cleared in 1968. The appellant submitted application to the respondent dated 11th March, 1969 to allow him to take chance to clear that paper also in 1969 but he was not allowed to do so. However, he was allowed to take chance in September, 1970, which was availed of by the appellant and he cleared that paper as well. However, the appellant kept on working on the same pay and allowances as Tebsildar since 1st December, 1966, without any interruption or break in service.
However, it came to light that although the appellant had joined service in 1966 was placed higher in order of merit yet the respondent No, 1 arbitrarily and illegally treated the appellant to have been appointed as Tehsildar on 1st February, 1971 and this date was communicated to the S&GAD. In this manner 4 years and 3 months service of the appellant had been washed away on the ground that he had passed the examination in 1971. The appellant was however, promoted as E.A.C. Vide notification, dated 1st August, 1978, Annexure 'D' whereas his batch-mates were promoted from 11th July, 1973. The respondent No, 1 issued a seniority list of Tehsildars with his letter dated 2nd July, 1971, in which it was provided that final seniority list in respect of officers from serial No, 321 onwards will be issued later. The names of appellant and the contesting respondents appeared between serial Nos, 348 and 384 in this list. Appellant's name appeared at serial No, 385 but no date of continuous appointment in the grade was shown against his name. In any case appellant was shown junior to those who had joined in 1971. The respondent No, 2 issued a seniority list of E.A.Cs. 1982 in which appellant's date of appointment was again illegally shown as 1st February, 1971, and he was again shown junior to contesting respondents 3 to 9. In the meanwhile appellant submitted representations dated 10th November, 1982 to respondent No, 2 which have been rejected by letter dated 7th December, 1983, which is final order in this case. Hence this appeal.
4. We have heard the learned counsel for a appellant as well as learned District Attorney assisted by the represent the Department and have perused the comment of the department so placed on record.
5. Learned counsel for the appellant has submitted that the real seniority in the grade of Tehsildar would be the order of merit assigned by the Board of Revenue at the time of selection of the appellant. According to the Counsel for the appellant, in this order of merit the appellant was placed senior to all the respondents. It has been further argued that the appellant was never superseded by the respondents in this case which is a fact established on record. He has relied his case on the judgment of Muhammad Safdar Khan who was selected as Tehsildar in the same batch in which the appellant was selected in the year 1966. It has been further submitted that the decision of this Tribunal in his appeal was contested by Shaukat Ali etc. Respondents in the case of Muhammad Safdar Khan, who challenged the decision of the Tribunal before the Supreme Court of Pakistan but their lordships of the Supreme Court of Pakistan did not grant Leave to appeal vide their judgment dated 13th March, 1984 reported as 1984 SCMR 1459 and upheld the order of the Tribunal.
6. On the other hand learned District Attorney has submitted that he would only adopt the comments of the Department which are identical with the comments submitted in the case of Muhammad Safdar Khan and would not added anything further.
7. We have given our anxious thought to the arguments advanced by the parties and will only examine the point whether the case of the appellant is identical to the case Muhammad Safdar Khan or not. Muhammad Safdar Khan was selected by the Board of Revenue, West Pakistan as 'A' class candidate for direct appointment as Tehsildar alongwith the eontesting respondents vide order 13th September, 1966. The appointment letter contained one of the terms that inter se seniority of the candidates would be such as fixed in the Seniority List issued by the respondent. In the said seniority list order of merit of the appellant was shown at serial No, 12 whereas contesting respondents were shown below at serial No, 23 to 31. It was found that Muhammad Safdar Khan did not clear his departmental examination within the schedule time attempt and ultimately successful in clearing the same in the year 1969. What actually happened in this case was that as he had not yet passed the Departmental examination he was shown junior in the seniority list against his colleagues who had passed the examination earlier and on the basis of the said seniority list he was promoted latter than his juniors. The matter was examined by us in this case and we came to the conclusion that the date of passing the Departmental Examination could not be made criteria to place a person senior or junior and actually the sheet anchor would be the seniority fixed by the Board of Revenue at the time of selection of civil servants. For this we have relied on earlier judgment of Punjab Civil Services Appellate Tribunal reported as 1971 PLC (C. S. T.)
271, 1971 PLC (C. S. T.) 250 and accordingly we held as under :- "In view of the law laid down the appellant cannot be assigned seniority keeping in view the date of clearing the departmental examination which of course is later than the contesting respondents as he would be consider them in accordance with the order of merit so assigned to the order of appointment, dated 13th September, 1966, and the list governing the said order."
' This matter was fully considered by their Lordships of the Supreme Court of Pakistan and after discussing rule 9 of the West Pakistan Tehsildari and Naib-Tahsildari Service Rules, 1962, found as under :- "The respondent No, 1 claimed the same seniority against the petitioners as was assigned in order of merit prepared initially by the Board of Revenue. There is no subsequent order of merit assigned to this group as a group by the Board of Revenue. The interpetation of the rules by the learned counsel amounts, in fact, substitute the order of merit assigned by the Board of Reverue by the date of appointment of the selectees to the service. Such substitution is not warranted and the merit as assigned by the Board of Revenue at the time of making selection will hold good for determining seniority inter se of the direct recruits as long as they remain in service in that grade and cadre."
In view of the above decision in the case of Muhammad Safdar Khan upheld by the Supreme Court of Pakistan what we find is that the case of the appellant is absolutely identical with the case of Muhammad Safdar Khan as the appellant has been declared junior on the basis of not passing the examination in time and on account of his being placed junior in the seniority list and his batch- mates stepped march over him and were appointed earlier as E.A.Cs. This being the situation the rules so applied by us in the case of Muhammad Safdar Khan would also be applicable in the case of the appellant and he will be entitled to the same relief which we have given to the said Muhammad Safdar Khan.
8. The result is we accept the appeal, set aside the impugned seniority list dated 31st December, 1982 and final order dated 7th December, 1983, 31st December, 1983/15th January, 1984, in so far as the appellant and the contesting respondents are concerned and declare that the appellant would be senior to the contesting respondents. We further direct that the case of the appellant be taken up for pro forma promotion as E.A.C. From 11th July, 1973, the date from which his batch-mates were so promoted. There will be no order as to costs.