S. ABDUL JABBAR KHAN (CHAIRMAN).--Messrs Muhammad Yasin, Muhammad Amin, Muhammad Siddique Cheema, Muhammad Sharif Awan and Bashir Ahmad, have filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974 in which they have impleaded Conservator of Forests, Lahore Circle, Lahore, Chief Conservator of Forests, Punjab, Lahore, Messrs Nazir Ahmad, Mohammad Arif Rehman I. Muhammad Nazir Abdul Latif; Akbar Ali Minhas and Sultan Mahmood as respondents.
2. By virtue of this appeal it has been submitted that the seniority list dated 13-11-1980 and consequential orders of reversion, dated 6-7-1981 as well as final order, dated 13-7-1981, be set aside and the appellant be declared as seniors to the contesting respondents, and they also be allowed to continue as Assistants. The appellants have also taken a plea for award of cost of their appeal.
3. Bried facts of the case are that the appellants joined service in the Forest' Department as Junior Clerks and were ultimately promoted as Senior Clerks in 1960. The respondents who were the employees of the Settlement and Rehabilitation Department and some of them were repatriated from Baluchistan were posted as Senior Clerks against the upgraded posts of the Forest Department. In fact the posts in the Forest Department available after the absorption were pasts of Junior Clerks only and substantive in nature. To accommodate the respondents, these posts were upgraded under a temporary scheme and the respondents were posted against these posts as Senior Clerks. Respondent No. l prepared a seniority list of senior staff of Lahore in pursuance of instructions wherein the respondents were shown senior to the appellants. The appellants submitted representations to the competent authority against wrong fixation of their seniority but the same were rejected by respondent No.2. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned counsel for the respondents learned District Attorney and have perused the record of this case carefully with their assistance. Learned counsel for the appellants has submitted that the contesting respondents were absorbed as surplus employees of other Departments as senior Clerks against the upgraded posts of Junior clerks on temporary basis therefore, their status remained temporary all along, therefore, they are not entitled to be considered senior to the appellants who were permanent employees of the Forest Department from the very beginning and have spent long years of service ranging from 24 to 30 years. Learned counsel for the appellants have further argued that the contesting respondents should have been treated as initial recruits and the rules of 1962 were applicable in their cases which provide complete formula for fixation of inter se seniority in the present case. Learned counsel for the appellants have read before us the basis of seniority as laid down in 1962 rules and claimed that with the application of those fundamentals the case of the appellants was fully justified and in no manner the competent authority would relegate them to the junior positions than the contesting respondents. While concluding he submitted that the appellants are working as Assistants after their due promotion, therefore, their reversion could be unwarranted in view of the seniority so fixed by the Department as the said seniority was affected against the settled rules of 1962.
5. On the other hand the learned counsel for the respondents has submitted that the case of the contesting respondents is to be bifurcated in two parts. According to him respondent No. 3 Nazir Ahmad and respondent No.7 Akbar Ali Minhas who were members of Baluchistan service since 1963 and were repatriated from Baluchistan on account of One-Unit and therefore, their case would be governed according to the Integration Circular, dated 29-10-1955. It was argued by the learned counsel that all the arguments advanced by the learned counsel for the appellants would be of no avail against these two persons who were not, as claimed to have been absorbed but we regularly repatriated civil servants after the induction of one unit. With regard to remaining four contesting respondents it was submitted that Annexure 'A' was the fundamental document on which reliance could be placed by this Tribunal. Learned counsel has pointed out that in this as Annexure 'A' under classification as well as the character of the posts has been made clear. Therefore, what Annexure 'A' (letter of S&GAD, dated 13-11-1974) has stated is that the F.D. Was requested to upgrade these posts to those of senior clerks so that they could be absorbed and in that manner all the surplus officials were absorbed against those posts with immediate effect. He has further taken us through Annexure 'C' (a document placed on the record by the appellants themselves) and has submitted that it would be wrong to say that the contesting respondents were absorbed against the temporary posts. The said Annexure which is also a letter from U.S. Forestry and Wildlife Department to the C.C.F. Punjab, Lahore has only pointed that only the scheme was on temporary basis and not the posts were temporary in nature. What the Governor did was that he gave administrative approval of this scheme through this letter. The learned counsel has pointed out Annexure R.3 to show that all the appellants were promoted to the rank of Assistants with a number of conditions one of which No.4 was very much relevant to the facts of the present case. It is clearly stated in that condition that the promotees will be reverted to their original rank of senior clerks if the seniority of the officials absorbed from the Settlement Department was decided as and when in their favour by the C . C . F. Punjab Lahore. It was argued that the claim of the appellants that they had been promoted as Assistants and should be allowed to remain as Assistants was very much hollow in face of clear cut conditions with which they had accepted and started working as Assistants. While concluding the case the learned counsel for the respondents has stated that the contesting respondents straightaway joined as senior clerks while the appellants were working as junior clerks, and no protest of any kind was lodged by them, therefore, they were estopped to agitate against the settled seniority in favour of the respondents. Both the learned counsel have relied on a number of citations. Mr. M.A. Riaz has relied on 1973 PLC 114 and 1971 PLC 186 and section 3 of Punjab Civil Servants Act, 1974 and unreported case of Moinuddin Ahmad v. I.-G.P. Etc. Case No. 21/31 of 1972, decided on 15-9-1972. Mr. Ahmad Waheed Khan, learned counsel for the respondents has relied on 1976 PLC 86, 1975 PLC 1, 1974 PLC 5 in support of their contentions.
6. We have given our anxious thought to the arguments so raised by the parties before us and find that respondents Nos.5, 6 and 7 were not surplus employees of the Settlement Department as respondent;, Nos.5 and 7 were repatriated from Baluchistan on dismemberment of one Unit. They joined as Senior Clerks on 16-1.1-1973 and 9-1-19'5 respectively while respondent No. 6 came from Malaria Eradication Programme and joined on 11-2-1974 as Senior Clerk. Therefore, these three respondents No.5 ,6 and 7 belonged to a different category and their appointments in the Forest Department were made under the order j of the S&GAD No. SOFT. III (S&GAD)-6(29)/74, dated 13-11- 1974. The persons brought their seniority as well as their status from their parent Departments and their cases while fixing the seniority, would be governed by the Integration formula and would in no manner compete with appellants for their seniority as having an independent character.
7. With regard to the remaining respondents the major issue for adjudication before us, would be whether they were absorbed against temporary vacancies or permanent ones. Learned counsel for the appellants has relied on Annexure 'A' and Annexure 'C', the documents which have also been relied by the respondents. A perusal of the two documents reveals that the vacancies available with the Forest Department against which respondents were absorbed were permanent vacancies of junior clerks which were upgraded to those of senior clerks so that the respondents who were already senior clerks in their parent Departments should be absorbed. F.D. Vide their U.0. No. 2/183- FT. SOX(FD)/74, dated 25-10-1974, agreed to this formula. The perusal of Annexure 'C' reveals that it is nowhere stated that the respondents were being absorbed against temporary vacancies. What stated in Annexure 'C' is that the Governor of the Punjab was pleased to accord administrative approval for the continuance of the above scheme on existing and temporary basis through S.N.E.
1981-82, at a total cost of Rs.2,02,650. In view of the above we are in accord with the learned counsel for the respondents that in fact Annexure 'C' talks about a scheme which was temporary in nature and not about nature of vacancies. We also do not consider that the appointments of these respondents were a matter of direct recruitments as they were absorbed in the Forest Department on permanent basis against permanent vacancies.
The seniority of the respondents was fixed before the receipt of Government directive issued vide their Letter No.SOWF-II-S&GAD-6 (29)/74, dated 24-9-1980. Annexure R-II fully supports this point so advanced by the Government in its para-wise comments. In this Annexure which is a letter from Under Secretary (Welfare-III) S&GAD to the SO-E11-Forestry and Wildlife Department Lahore, it has been stated as under:-- "It appears that the advice rendered by this Department vide U.0. No. SOWF-III(S&GAD)-6(29)/74, dated 2-7-1979, has been misinterpreted. It is clarified that consequent upon their absorption in the Forest Department the seniority of all these 29 officials was to be fixed from the dates they were absorbed in the Forest Department. While fixing the inter se seniority of these officials the dates of their continuous appointment in the grade in their parent Department was also to be kept in view.
The advice neither violates the Service Rules directive issued by this Department nor it purports to usurp the right of the Senior Clerks already working in the Forest Department prior to the date of absorption of surplus staff, Evidently the officials who were already holding the posts of Senior Clerks in the Forest Department before the dates of joining service by the surplus staff in the Forest Deptt will remain senior to the latter. On the basis of the same principle, the officials of the Forest Department who were promoted as Senior Clerks after the dates of absorption of surplus staff would stand junior to the latter. The inter se seniority of surplus officials held by them in their parent Department will also remain undisturbed'.
We are fully satisfied on this issue and have no hesitation to hold that the respondents in this case joined as senior clerks when the appellants were still holding the posts of junior clerks. In this way the claim of the appellants that the respondents being holder of temporary posts could not be declared senior to the appellants, who were later on promoted to the posts of senior clerks, is liable to be repelled. The seniority list so prepared on receipt of clear cut decision vide Government Letter No.SOWF-11(S&GAD1-6-(29)/74, dated 24-9-1980, and on those posts the respondents 3 to 8 were promoted after due consideration by the Selection Committee in its meeting held on 8-6-1981.
8. While adverting -to Office Order No. 179/CFL, dated 22-6-1980 by Mr. S.K. Khanzada, Conservator of Forests Lahore Circle, Lahore, the appellants were promoted to the rank of Assistants w.e.f. 31-5- 1980 subject to four conditions. We will only advert to condition No.4, which would be relevant in the present case and that is:- "They will be reverted to their original rank of senior clerk in the seniority of the officials absorbed from Settlement Department is decided as and when in their favour by the Chief Conservator of Forests, Punjab, Lahore and they are found fit for promotion to the rank of Assistant in accordance with the provision made in the Civil Servants Act, 1974."
The appellants accepted this condition and did not raise any objection to it. In view of the above they are not entitled to challenge the condition which was a prerequisite for their promotion and keeping in view the principle of approbate and reprobate in their stand would hardly be tenable. It was only when the case of fixation of seniority alongwith answering respondents, was decided against them they stood reverted. The Government decision, dated 24-9-1979, by which the seniority list was published would be legal, as well as justified. '
9. There can be no dispute to the proposition that; Government being the rule-making authority, no limitation can be visualised to be imposed upon it. Undoubtedly 'the appellants have worked for a long period in the Forest Department but at the same time it cannot be ignored that the respondents have spent fairly considerable period in their parent Department, therefore. Their length of service cannot be ignored. The respondents earlier status was that of senior clerks and they were absorbed against permanent vacancies of junior clerks which were upgraded only to accommodate them. If the appellants would have been enjoying the status of senior clerks at the time when the respondents were absorbed into their parent Department, the matter would have been different. The appellants have attained their promotion as senior clerks much later to the date of absorption of the respondents with the status of senior clerks, under these circumstances, it cannot be said that any injustice has been done to their case as the status which they were holding at the relevant time remained undisturbed and they were promoted on the due date in the normal course of their promotions. It cannot be said that the respondents have in any manner usurped their rights/status which they were enjoying at the time of the absorption of the respondents. We have perused `he law cited before us by the learned counsel for the appellants and find that it should not applicable in the present case. The case-law cited 1973 PLC (CST) 114 as well as of unreported judgment of Mueenuddin Ahmad would have been only applicable if it stood established that the respondents were absorbed against the temporary posts and were all along, temporary senior clerks, As we have held in the earlier part of our judgment based on documentary evidence that the respondents were absorbed against the, permanent vacancies of junior clerks upgraded as senior, clerks on permanent basis therefore, the citation so mentioned above, would be off no avail to the appellants in the present case.
10. The result is we proceed to dismiss the appeal as being without any merits. However, there will be no order as to costs.