ASLAM RIAZ HUSSAIN,J.--The petition is directed against the judgment of the Punjab Services Tribunal dated 18-6-1983, dismissing the petitioners appeal in a seniority matter.
2. The facts giving rise to the petition are briefly as follows:- Mr. Zulfiqar Ali Toor and 7 others (Petitioners herein) are Magistrates. They were selected for appointment as Magistrates/E. A. Cs. By the Punjab Public Service Commission and were appointed on different dates between 16th of February, 1974 and 4th March, 1974.
The contesting respondents (Nos.3 to 23) are also Magistrates. They have been divided by the petitioners, for the purpose of this petition, into following batches:- First Batch Respondents 3 to 6 who are shown at Serial Nos. 51 to 56 in the impugned seniority list and are selectors of 1973.
Second Batch: Respondents Nos. 7, 8 and 9 have been shown at Serial No. 57, 58 and 59 in the impugned seniority list. They were originally direct recruits of 1975 but were subsequently declared as Promotees and given promotion w.e.f. 10-7-1974 through order dated 5-3-1977.
Third Batch: Respondents Nos.10 to 23, who appear at Serial Nos. 60 to 73 in the seniority list. They are Promotees from the rank of Tehsildars/Naib-Tehsildars with the same date of promotion viz. 10-7-1974.
3. The respondents were placed senior to the petitioner-Magistrates in the seniority list dated 31-12- 1977' (hereinafter referred to as the impugned seniority list).
The petitioners were aggrieved by this fact and, after exhausting the departmental remedy, they filed an appeal before the Punjab Services Tribunal under section 4 of the Punjab Services Act, 1974.
The appeal was, however, dismissed by the learned Service Tribunal, vide the impugned judgment dated 18-6-1983, inter alia, on the ground that the seniority of petitioners vis-a-vis the respondent- Magistrates was governed by rule 9(3) of the West Pakistan Civil Servants (Executive Branch) rules, 1964, (hereinafter called the 1964 rules).
Hence the present petition.
4. It was contended by the learned counsel for the petitioners before us that the learned Service Tribunal had wrongly applied rule 9 (3) of the 1964 rules and, as a result, had erred in holding the petitioners to be junior to respondents 7 to 23.
He submitted that after the coming into force of the Punjab Civil Servants Ordinance, 1974, on 3-3- 1974 (which became an Act in June, 1974), the seniority of the petitioners as well as the respondents is governed by the provisions of section 7 thereof, which specifically deals with the seniority of Civil Servants, and not by rule 9 (3) of the old (1964) Rules.
In this connection, the - learned counsel for the petitioners pointedly referred us to subsection (2) of section 7 of the Punjab Civil Servants Act, 1974, which reads as follows:- 7"(2) Seniority in the grade to which a Civil Servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that Civil Servants who are selected for promotion to a higher grade, in one batch shall on their promotion to the higher grade, retain their seniority as in the lower grade."
Petitioners' counsel urged that according to this provision the seniority of promotees must be determined according to the date of their appoint--ment and similarly by virtue of rule 8 (1) of the new Rules i.e. Punjab Civil Servants (Appointment & Condition of Service) Rules, 1974, the seniority of the initial appointees is also to be reckoned from their date of appointment. He, therefore, argued the since respondents 7 to 23 (who are included in the second and the third batches as shown in pars. No.2 above) were appointed as E.A.C. w.e.f 10th July, 1974, while the date of appointment of the petitioners was between February and March, 1974, therefore, the petitioners, who were appointed as E. A. Cs. a few months earlier, must rank senior to the respondents Nos. 7 to 23 who were appointed later.
5. On the other hand the learned counsel for the respondents submitted that rule 9(3) of the 1964 Rules held the field on the relevant date for the purpose of determining the inter se seniority of the parties, i.e. The authority of initial appointees vis-a-vis the promotees, was governed by that Rule.
For a clearer understanding of this contention, the said provision may be reproduced here:- Rule 9(3) of the 1964 Rules.--"Notwithstanding anything contained in sub-rule (2) the persons appointed in a particular year, otherwise than by initial recruitment, in accordance with the provisions of rule 5 shall in pursuance of the provisions of sub-rule (9) of rule 5, shall rank senior to the persons appointed by initial recruitment during that year."
The respondents' counsel then drew our attention to section 23 of the Punjab Civil Servants Act, 1974, which empowers the Government to make Rules under the said Act. Subsection (1) gives the general power of framing Rules, but subsection (2) of the said section which is the relevant provision for the purpose, of the petitioner case reads as follows: - Section 23 (2) of the Punjab Civil Servants Act., 1974--"Any rules, orders or instructions in respect o any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so as such rules, orders o instructions are not inconsistent with the provisions of this Act, be deemed to rules made under this Act."
(Underlining is ours)
The respondents' counsel submitted that the West Pakistan Civil Servants (Executive Branch) Rules, 1964, were the rules in force immediately before the commencement of the Punjab Civil Servants Ordinance, 1974, as such the provisions thereof, including rule 9(3), would be applicable for determining the inter se seniority of direct appointees (i.e.) the petitioner and the promotees (respondents Nos.7 to 23).
6. We have carefully considered the question and have studied the relevant provisions but are not persuaded to agree with the contention raised by the petitioner's counsel.
Civil servants are appointed to a post in a service, cadre or grade, either by direct recruitment or by transfer or promotion.
Section 7 of the Punjab Civil Servants Act, 1947, deals with the subject of Seniority of Civil Servants whether appointed by initial recruitment, transfer or promotion. For facility of reference it will be proper to reproduce here the entire section:- "7.Seniority.--(1) Seniority on initial appointment to a service, cadre, grade or post shall be determined in the prescribed manner.
(2)Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade retain their inter se seniority as in the lower grade.
(3) For proper administration of a Service cadre or grade the appointing authority shall from the to the cause a seniority list of the members of such service, cadre or grade to be prepared.
(4) Subject to the provisions of subsection (3), the seniority of a civil servant in relation to other civil servants belonging to the same service, cadre or grade, whether serving in the same department of office or not, shall be determined in such manner as may be prescribed.
It will be noticed that the seniority of initial appointees is to be governed by subsection(1) of the said section, while subsection (2) deals with inter se seniority of promotees, i.e. The seniority of persons appointed to a grade by promotion as against other promotees. But as far as the seniority of promotees vis-a-vis initial appointees is concerned, it is governed by subsection (4) of the above said section. It will be noticed further that both subsections (1) and (4) provided that the manner in which the seniority of civil service mentioned therein shall be determined would be the prescribed manner."
The word 'prescribed' has been defined in section 2(g) of the said Act as manner prescribed by Rules."
The word 'Rules' has been defined in clause (i) of section 2 of the Act to mean "rules made or deemed to have been made under this Act".
As already mentioned subsection (2) of section 23 provides that rules applicable immediately before the coming into force of the Act would be deemed to be rules framed under this Act.
7. The new Service Rules [i.e. Punjab Civil Servants (Appointment and Condition of Service) Rules, 1974], were framed on 29th August, 1974. These rules would now be applicable to all Civil Servants appointed after 28-8-1974. But on 10th July, 1974, when these respondents 7 to 23 were appointed to the service, by promotion, the rules that occupied the field were the West Pakistan Civil Servants (Executive Branch) Rules, 1964 as they were "in force immediately before the commencement" of the 1974 Act and in view of the provisions of subsection (2) of section 23 of the Civil Servants Act, 1974 they must be deemed to be rules made under the said Act for the purpose of subsection (4) of section 7 of the 1974 Act. It would, therefore, follow that the seniority of direct appointees vis-a- vis the promotees, who were appointed before 28th August, 1974, must be governed by the principle laid down in rule 9 (3) of the old (1964) Rules.
Simply stated this rule provides that the persons appointed in a particular year, otherwise, then by initial recruitment (i.e. Persons appointed by promotion or transfer) shall rank senior to the persons appointed by initial recruitment at any the during the same year. Consequently we hold that the respondents 7 to 23 though appointed to the service later than the petitioners, were rightly placed in senior to~ them in the seniority list.
8. As far as respondents 3 to 6 are concerned, they are them selves direct appointees, like the petitioners. They admittedly joined the service on 4-8-1973, while the petitioners were inducted in the said service between February and March, 1974, as such the seniority of petitioners vis-a-vis respondents 3 to 6 would be determined in the manner provided by the provisions of section 7(1) of the Civil Servants Act, 1974, i.e the manner "prescribed" by rule 8(1) of the Rule framed under the 1974 Act.
Even if old (1964) Rules relating to inter se seniority of direct appointees is applied on the ground that the petitioners (as well as respondents 3 to 6) were appointed before the enforcement of the 1974 Rules, the petitioners shall still rank junior to the respondents 3 to 6 who were appointed in the previous year. This view is supported by the view taken by this Court in Ch. Kabir Ahmed etc. v.
Government of Punjab 1982 SCMR 978 in which the petitioners themselves had moved this Court.
This very contention was noticed and repelled in paragraph 11 of the above said judgment.
In view of the above discussion the impugned judgment of the Punjab Service Tribunal is upheld and leave is refused.