S. ABDUL JABBAR KHAN (CHAIRMAN).-- Ch. Sardar Ahmed Zia has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Government of the Punjab through chief Secretary Punjab, Lahore as well as a large number of respondents 41 given at Annexure ---AA' alongwith his appeal.
2. BY virtue of this appeal he has prayed that seniority list be amended and the order dated 26-8- 1981, by which his representation has been turned down, be set aside.
3. Brief facts of the case are that the appellant appeared at serial No. 269 in the seniority list of Tehsildars, as corrected up to 12-6-1971. The case of appellant was duly processed by the Board of Revenue Punjab and was sent to Government for further transmission to the Public Service Commission, alongwith others, to be placed on the select list A for promotion to the P.C.S Executive Branch. The case of the appellant alongwith other Tehsildars was duly scrutinized and the case of the appellant considered by the Public Service Commission but due to certain enquiry pending against him, the case of the appellant was deferred. The enquiry so mentioned above, culminated in the compulsory retirement of the appellant. He filed an appeal against his compulsory retirement before the Member, Board of Revenue, but the same was rejected, by the full Board vide order dated 2-3-1972. The appellant took his grievances before the Punjab Service Tribunal in the form of an appeal and this Tribunal was pleased to exonerate him from the charges and accepted his appeal. In view of the said decision of the Tribunal he was re-instated in service as Tehsildar w.e.f. 24-7-1977 vide Order No. 2571-77 /2404-E (F I, dated 24-7-1977. According to this order the interim period during which the appellant remained out of service was treated as on duty. The appellant immediately represented on 22-12-1977, for the redress of his grievances to be promoted as Extra Assistant Commissioner. S & G A Department informed the appellant in reply to his representation, that he was again deferred for promotion as Extra Assistant Commissioner for want. Of complete service record of the appellant. However, the case of the appellant was considered in 1981 and vide notification dated 2-3-1981, the appellant was promoted as Extra Assistant Commissioner w.e.f. 25-2-1981. The appellant made a representation to the higher authorities, for fixation of seniority from the date when his juniors were so promoted as according to him, his late promotion was not due to his fault but to the circumstances which were beyond his control. As mentioned earlier his representation stood rejected. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. It has been argued on behalf of the appellant that the West Pakistan P.C.S. Executive Branch Rules, 1964, provided the mode of seniority inter se the parties. Rule 9 is a rule which governs such seniority matter. It has been submitted that respondents Nos. 2 to 330 comprised two groups i.e. (1)
Promoted officers, and (2) Direct Recruits. According to the learned counsel the rule of seniority lays down that the continuous date of appointment would be the yardstick for fixing the seniority inter se of the above-mentioned groups. It has been pointed out that this rule specifically provides that even though officer belonging to this class of promoted officer, is promoted to a later date, he should be senior to the direct recruit who has been appointed alongwith him in the same year. The learned counsel has further el aborated that with regard to the seniority of promotee officer inter se the rule of seniority would be dependent upon the factum of seniority in the next below grade i.e. Tehsildar cadre. For this purpose he has again relied on rule 9 of the West Pakistan P.C.S. Executive Branch Rules, 1964. In this manner the learned counsel has tried to persuade us that the appellant would be entitled to reckon the seniority w.e.f. 9-9-1971, when his case had become ripe for promotion but unfortunately deferred for the reasons which later on did not stand in his way.
Learned counsel has cited the cases of Ch. Nasrullah Khan, Ch. Rehmat--ullah, Kh. Azhar Hussain, Muhammad Ashraf Cheema and Muhammad Afzal in this respect by submitting that in this case rule 9 was strictly applied but the case of the appellant has been discriminated.
6. On the other hand learned District Attorney has adopted most d the written statement filed on behalf of the contesting respondents and has laid stress on the point that the claim of the appellant that he was deferred was factually incorrect and in fact he was superseded due to enquiry pending against him and his bad record.
7. With regard to the reinstatement of the appellant after his compulsory retirement, it has been submitted that the same would have no bearing on this case as it could not be controverted by the appellant that he was at one time removed from service due to misconduct and his reinstatement would not confer upon him the status which he enjoyed earlier. The respondents have further submitted that under rule 7(1) and rule 6(27) of the W. Pak P.C.S. (EB) Rules, 1964, only those Tehsildars who were Graduates and not more than 45 years of age were eligible for promotion as Extra-Assistant Commissioner, therefore, the non-selection of the appellant as Extra-Assistant Commissioner at earlies stage, was fully justified as he lacked this educational qualifications and had also crossed the age of 45 years, on 9-9-1971, when the answering respondents who qualified in all respects were considered for promotion. Learned District Attorney as well as contesting respondents have taken strong exception to the claim of the appellant for seniority over them by urging that a person who gets promotion as Extra Assistant Commissioner, by virtue of relaxation of rules, cannot claim promotion over those who are otherwise fully qualified. Similarly it has been vehemently argued that rule 9 of P.C.S. (EB) Rules only covers those Tehsildars who were eligible for promotion and not ineligible for the same although such cases could have been condoned by the magnanimity of the Government by relaxation of rules.
8. We have given our anxious thought to the arguments so advanced by both the parties before us and have gone into the record carefully to assess the intrinsic value of such pleadings. The fact of the matter is that the appellant stood compulsorily retired but his appeal was accepted, charges against him were found not proved and he was reinstated in service with full benefits, by the Punjab Service Tribunal. The Government in its own wisdom did not file any appeal against the said judgment and implemented the same in extenso, with the direction that the period of his absence from service was considered as period on duty in favour of the appellant. In view of the above we are of the considered opinion that the appellant was reinstated in service as if he had never been removed and no stigma could be attached to his record, in this respect, therefore, we repel the arguments of the learned District Attorney as well as contesting respondents that earlier calamity which was later on redressed, would always stand in the way of the appellant for his promotion and seniority. For this observation we rely on our judgment given by us in the case of Messrs Syed Kabir Hussain Shah and Bashir Ahmad Kamlana Case No. 166/1280 of 1981. 380/755 of 1980 in which we have discussed this principle in detail.
9. With regard to the stand of the contesting respondents that as the appellant was beneficiary of relaxation of rules, therefore, he should not be equated with them for matter of promotion and seniority, as the said relaxation according to them was a matter of grace and not that of right, we are also not impressed with this argument and repel the same. It is a settled principle of law as well as a procedure that one the Governor allows relaxation for certain impediments in the way of a civil servant, he would enjoy the same status alongwith his colleagues and would not be considered a person with lesser qualities. The rule making powers of the Governor are unfettered and he being the Head of Executive, can order such relaxation in his own wisdom, according to the circumstances of each case, therefore, no exception can be taken to such orders and by no stretch of imagination a person in whose favour, rules have been relaxed, can be considered inferior than those in whose cases such like requirement was not needed. We have perused the record of this case and find that Notification No.2-5/69(SOPI) Government of the Punjab S&GAD, dated 9-9-1971, while promoting Tehsildars to the P.C.S. (EB) vide para. 6, had promoted Messrs Allahyar Khan, Maqbool Hussain, Nazeer Ahmad, Nasrullah Khan, Rehmat Ullah, Asghar Ali Qureshi and Muhammad Afzal in relaxation of rules 6 and 7 of the P.C.S. (EB) Rules, 1964, as amended vide Notification No. SORIII-1-81/57 (iii), dated 12-6-1971. All these officers lacked those very qualifications which the appellant lacked but by relaxation of rules by the worthy Governor, they were promoted from the dates, their juniors were promoted in service. This positive instance on record would demolish the stand of the contesting respondents that the appellant may not be allowed his claim of seniority over them as he became Extra-Assistant Commissioner, after the rules were relaxed in his favour. If we accept the claim so propounded by the respondents, we will be perpetuating the act of discrimination against the appellant when we find that persons of his qualifications were bestowed upon promotion by the Government. It will be useful to point out that Ch. Nazir Ahmad figures junior to the appellant as Tehsildar, therefore, the claim of the appellant cannot be rejected vis-a-vis the cases so cited above.
10. We have also scrutinized the record of this case and find that no where the appellant has been superseded as claimed by the contesting respondents in their written arguments so filed before us.
The record speaks otherwise as we find that his case was earlier deferred due to enquiry which ultimately resulted in his favour and he was fully exonerated from all the charges. On other occasion he could not be cleared due to lack of availability of complete case. Thus, in this manner we cannot hold that he was superseded while considering him alongwith his colleagues. We have also further examined the minutes of the meeting of the Departmental Promotion Committee regarding promotion to the post of Extra-Assistant Commissioner of Tehsildars/Nabs-Tehsildars through select list A held on 3-1-1981 and find that the appellant was recommended for promotion as his service record was found satisfactory and the enquiry so pending against him, was considered of no consequence. This Committee also strongly recommended that rules regarding his age and qualifications be also relaxed. The Governor was pleased to accept the recommendations of this Committee, therefore, no exception can be taken to the order of the Governor who was competent to pass such orders.
11. With regard to the claim of the appellant that according to rule 9, he would be entitled to rank senior over his juniors in the lower grade, we have to accept this claim in view of the settled law in this respect. In our judgments as well as in the judgment of the Supreme Court of Pakistan, this issue has since been settled one for all. A person who is senior in the lower grade, would always rank senior to his junior in the higher grade, if he is not superseded by the authorities after considering his case alongwith them.
12. In view of the above we accept the appeal, set aside the impugned order and direct the respondent No. 1 to place the appellant at his correct position in accordance with the seniority in the lower grade which he enjoyed at that time in that cadre. However, parties will bear their own costs.
A. E.