Messrs Ali Gohar and Mujib Ahmed, Zilladars have filed this appeal under section 4 of the Punjab Service Tribunal Act 1974, in which they have impleaded Superintending Engineer, Headquarters, Irrigation Department, Sargodha, Chief Engineer, Irrigation, Sargodha Zone, Sargodha and Messrs Agha Sher Muhammad and Nazir Ahmed son of Khuda Bakhsh, Zilladars, Irrigation Department, as respondents.
2. By virtue of this appeal they have prayed that the impugned order, dated 9-12-1981 of the Chief Engineer, Irrigation, Sargodha Zone, Sargodha be set aside, the seniority list, dated 31-12-1980 be restored and the appellants be declared senior to the contesting Respondents.
3. Brief facts of the case are that Messrs Ali Gohar and Mujib Ahmed, Zilladars joined as Zilladars by direct recruitment w.e.f. 6-10-1962 and 23-6-1963 respectively. The respondents Nos. 3 and 4 Messrs Agha Sher Muhammad and Nazir Ahmad, Zilladars, joined service as Assistant Vernacular Clerks.
They were promoted as officiating Ziliadars by the Superintending Engineer, Irrigation, concerned w.e.f. 3-11-1957 and 24-12-1957 respectively by way of circle arrangements. A tentative seniority list was issued by the Respondent No. 1, dated 26-1-1978 in which appellant Mr. Ali Gohar was shown at serial No. 26 and Mr. Mujib Ahmed at serial No. 28, while respondents, Mr. Agha Sher Muhammad at serial No. 70 and Nazir Ahmad at serial No. 43. The date of appointment in the grade of the appellants and respondents, was mentioned as 6-10-1962, 23-6-1963, 1-9-1974 and 11-1-1971 respectively. A representation was made by the respondents No. 3 against this seniority list and another revised seniority list was issued as stood on 1-5-1980 vide, respondent No. 1's, order, dated 24-5-1980 and the seniority position as assigned to the appellants and respondents mentioned above was serial Nos. 27, 29, 14 and 44 respectively, wherein the dates of appointment in the grade of appellants and respondents was shown as 6-10-1962, 23-6-1963, 3-11-1957 and 11-1-1971 respectively. Aggrieved of this seniority list the appellant No. 1 filed a representation which was accepted by the respondent No. 1 and a final seniority list as stood on 31-12-1980 was issued vide his order, dated 25-3-1981 wherein the position of the seniority of the appellant viz-a-viz respondents was, at serial Nos. 17, 18, 56 and 30 respectively. The date of appointment in the grade was mentioned as 6-10-1962, 23-6-1963, 1-9-1974 and 11-1-1971 respectively. Respondent No. 3 made an appeal to respondent No. 2 against this seniority list. The appeal was accepted by respondent No. 2, vide his order, dated 9-12-1981 wherein it was ordered that the names of respondents Nos.4 and 3 be inserted after the name of Mr. Dost Muhammad at serial Nos. 16 and 17 of the impugned seniority list. Accordingly another seniority list was issued by respondent No. 1, vide his Order No. 5521-23/A-11/82/612/74, dated 25-3-1982, in which the contesting respondent No. 4, has been shown at serial No. 13, respondent 3 at serial No. 14, appellant 1 at serial No. 15 and appellant 2 at serial No. 16. This list was issued during the pendency of this appeal, as the appellant had already filed an appeal against the impugned order, dated 9-12-1981 of the respondent No. 2, giving the seniority to respondents 3 and 4 above and the appellants Nos. 1 and 2. Hence this appeal.
4. The learned counsel for the appellant has argued that as far as the appellants are concerned, there is no dispute regarding their date of appointment as they were appointed directly as Zilladars by the competent authority i.e., Chief Engineer in accordance with the rules. He submitted that if a reference is made to various seniority lists issued from time to time, it would be clear that these seniority lists were issued due to confusion, mis-representation of facts and misconceived orders of the respondents In favour of respondents Nos. 3 and 4, considering them as regular Zilladars from the original date of appointment but actually they were promoted as officiating Zilladars by the concerned Superintending Engineers, by way of local circle arrangements. The learned counsel for the appellant contended that the appointment of Agha Sher Muhammad respondent No. 3 from 3-11-1957 to that of 1-9-1974 was temporary, make shift arrangement and in ad hoc capacity. Similarly was the position of respondent No. 4, her. Nazir Ahmad who was appointed on 24-12-1957 as officiating Zilladar, temporary, and continued up to 11-1-1971, in ad hoc arrangements. Thus they should have been considered as a regular appointee against the vacancies as Zilladar from 1-9-1974 and 11-1-1971 respectively after completion of their training, when they were appointed as such by the competent authority i.e., Chief Engineer in accordance with the service rules. The learned counsel for the appellants had made a reliance on the Punjab Irrigation Department Zilladars Service Rules, 1943. Under rule 4 of the said Rules, appointment to the post "in the service" was to be made by the Chief Engineer and under rule 7(d) of the said Rules it is provided that selected candidates will be required to undergo the training specified in Appendix 'B' and thereafter, will be appointed as Zilladars. In case of the respondents these- conditions were not fulfilled when they were appointed in officiating capacity in 1957. They were appointed by the Superintending Engineers without having the departmental training. Therefore, it is clear that they were appointed as on ad hoc and temporary basis and, consequently they were appointed members of the service by the competent authority i.e., the Chief Engineer in accordance with the rules only in the years 1974 and 1971 respectively. The learned counsel for the appellant relied upon, PLD 1959 SC 61 which elaborately discusses the provisions of the aforesaid Punjab Zilladars Service Rules, 1943, and it has been held that officiating Zilladar is not a member of the service. It has been laid down that an officiating Zilladar was still in the process of training and was not, therefore, even a Government servant. It was further clarified by the learned counsel for the appellant that in the year 1963, West Pakistan Irrigation Department Zilladar Rules, 1963, were promulgated w.e.f. 11-12-1963 and according to the rule 5, thereof, the method of regular promotion to the post of Zilladars remained unchanged. Concluding his arguments, the learned counsel for the appellant has submitted that the respondents are entitled to be treated as members of the Zilladars :Service from 1-9-1.974 and 11-1-1971 respectively whereas the appellants were appointed as member of the service as Zilladars from 6-10-1962 and 23-6-1963 respectively. Thus, the appellants are far senior than the respondents and the impugned order be quashed on these grounds. On the other hand the learned District Attorney and the respondents vehemently argued and built up their cases on the impugned order, dated 9-12-1981 of the respondent No. 2 wherein the appeal was decided in their favour. They contended that they have been given seniority from the date of their. Continuous officiation in the grade from the year 1957. Thus, they have been correctly given their seniority by the Chief Engineer, Irrigation Sargodha, respondent No. 2, and they are entitled for the same. The respondents have argued that they are entitled to count their seniority from the date of their officiating appointments. They have relied upon 1971 PLC (C. S) 88, 1976 PLC (C. S. T.) 29, 1975 PLC (C. S) 81, 1978 PLC (C. S. T.) 25, PLD 1970 SC 203 and 1977 PLC (C.
S. T.) 21 as well as section 2(2) of the Punjab Civil Servants Act, 1974, para. 8(b) of Punjab Civil Service Rules, 1974, para. 9(b) Explanations I and III of Zilladar Service Rules, 1963.
5. I have gone through the arguments of the parties and have also consulted the record. The case was heard on 25-9-1982. The record from the Respondents Nos. 1 and 2 was called for to verify the facts of the case with a view to determine the correct status and nature of the appointment of the parties. After follow up, it was hardly possible to lay hand on some of the files which were produced by Raja Fazal Dad, Superintendent office of the Chief Engineer, Irrigation, Sargodha. When this record, so produced, was perused, certain new facts came to light. It appears that these facts were not brought to the notice of the Chief Engineer, Irrigation Respondent No. 2, while the appeal of contesting respondents was decided vide his impugned order, dated 9-12-1981. This appeal was again heard on 4-12-1982, to give another opportunity to the respondents, appellants and appellants' counsel in light of this available record. It has been confirmed from the record produced by the representative of the respondents, that there is no dispute about the dates of the appointments of the appellants Nos. 1 and 2, but there has been wrong assertions in the case of the respondents. In case of respondent No. 3 Agha Sher Mohammad, he has produced at the time of 2nd hearing an order showing that he took over the charge as an officiating Zilladar on the afternoon of 2-11-1957 vide Executive Engineer, Kalabagh Division Daudkhail, Order No. 2568/PF, dated 14-11-1957 addressed to the Superintending Engineer, Thal Circle, Mianwali and Superintending Engineer, Thal Circle, Mianwali Endorsement No. 309-10/8-E, dated 9-1-1980. Yet there is another Order No. AII/73/30204/191/69, dated 22/23rd October 1973, issued by the Chief Engineer, Irrigation, Multan, showing that Agha Sher Mohammad, Vernacular Clerk was accepted as a Departmental candidate Zilladar. This second order has made the position clear that Agha Sher Mohammad was accepted as Departmental candidate to Zilladar in the year 1973. In case of Nazir Ahmad more interesting facts have also come to light. The record produced by the office of the Chief Engineer, Irrigation Respondent No. 2 shows that he was reverted as Vernacular Clerk vide Order No. 114/392/93/94-999-E/Zdrs, dated 14-1-1959 of the Superintending Engineer, Upper Jhelum Canal Circle, Jhelum. This respondent has himself produced another order No. 1882-83/258-E, dated 23-2-1960 issued by Superintending Engineer, L.J.C. Circle, Sargodha, wherein he was appointed as officiating Zilladar and another order No. 9543-48/299, dated 27-8-1970, where in it has been disclosed that Mr. Nazir Ahmad had been provisionally selected as Departmental candidate Zilladar by the Chief Engineer, Irrigation, Lyallpur vide his order, dated 18-8-1970. Thus, in view of this position as emerged above, Mr. Nazir Ahmad's officiating appointment made on 24-12- 1957 stood terminated on 14-1-1959. It appears that true facts were not brought to the notice of the Chief Engineer, Irrigation, Sargodha, Respondent 2, when the impugned order, dated 9-12-1981 was passed by him and he was not oblivious of the aforesaid important orders issued by various departmental authorities, although these orders had vital bearing on the case. Keeping this in view the result is that the impugned order, dated 9-12-1981 of Respondent No. 2 and the seniority list so prepared on that basis and circulated vide Letter No. 5521-23/AII/82/612/74, dated 25-3-1982 by Respondent No. 1, are set aside. The case is remanded to Chief Engineer, Irrigation, Sargodha, Respondent No. 2, who is directed to decide the case afresh keeping in view the above detailed facts, observations and the rules on the subject. Important I issue involved in this case which required thorough examination by the respondent No. 2, is what was the significance of the issuing the above mentioned orders of the contesting respondents Nos. 3 and 4 as departmental candidate Zilladars in the years 1973 and 1970 respectively vis-a-vis the orders issued on 20-12-1961 bestowing the similar status upon the two appellants. He is further directed to decide the issue after hearing the parties, if considered necessary and the seniority list be got issued within three months of date of issue of this judgment.
There will be no orders as to costs.
M. Y. H.