S. ABDUL JABBAR KHAN (CHAIRMAN).--Ehsanullah Sardar and Tahir Ahmad Malik have filed these two Appeals Nos.115 of 1977 and 116 of 1977 respectively under section 4 of the Punjab Service Tribunals Act of 1974. The appellants have impleaded Secretary to the Government of the Punjab, Irrigation Department, and various others as per list at Annexure ' A' as respondents.
2. By virtue of these appeals the appellants have prayed that the respondent No.1 be directed to declare the appellants senior to the contesting respondents as Officiating Executive Engineers as well as Assistant Executive Engineers. It has been further submitted that the seniority list of Officiative Engineers as it stood on 14-10-1972 and notified on the same date and amended on 19- 8-1975 in so far it has fixed the seniority of the appellants, viz. The contesting respondents be declared as illegal.
3. Brief facts of the case are that 20 permanent posts of Assistant Executive Engineers in WPSE Class-I Junior were available with the former West Pakistan Government for filling by direct recruitment, These were advertised by the Government through Public Service Commission and in 1968 the West Pakistan Public Service Commission interviewed about 700 candidates including most of the respondents. Out of 700 candidates 20 candidates including the appellants were declared fit by the Commission on merits and were recommended for appointment to the Post of Assistant Executive Engineers. Out of above lot 12 including appellants were direct recruits whereas 8 were departmental candidates. The appellant Tahir Ahmad Malik was placed in order of merits as Serial No. I and Ehsanullah Sardar at serial No. 3. Two appellants were put on probation and became regular members of WPSE-I Class-I through Appointment Order, dated 21-10-1979.
4. The respondent No.1 issued seniority list of the members of Class-I Service in Engineering (Irrigation) Punjab as it stood on 1-12-1971. The names of the appellants were shown at serial Nos.
50 and 52 respectively. At that time none of the respondents had been inducted into Class-I.
5. The respondents Nos. 2-60 joined the service in the department as Temporary Engineers and subsequently they were also inducted into Class-I Junior w.e.f. 22-7-1971 through a general notification by which Class-I status was bestowed by the Government of Punjab upon all Graduate Engineers of the Engineering Department.
6. The respondents were promoted as Officiating Executive Engineers in Class-I (Senior) from earlier dates than the appellants who were so promoted on 1-8-1972. The respondent No. 1 issued another seniority list of Assistant Executive Engineers of the PSE Class-I Irrigation and Power Department as it stood, on 14-10-1972 in which the names of the appellants were omitted. The appellants, therefore, were unaware of their status with regard to this seniority. It was again in 1972 another list of Officiating Executive Engineers was issued in which the appellants were shown juniors to the respondents. As this list was self-contradictory whereas number of officers with later date of appointment as Officiating Executive Engineers have been shown seniors to those with earlier dates of appointment as Officiating Executive Engineers, the appellants due to this confusion made a representation against this inequity and injustice. The appellants first of all made various representations to respondent No.1 and ultimately they filed an Appeal No.19 of 1973 before the former Punjab Service Appellate Tribunal in which they prayed that the respondent be directed to publish a complete seniority list of Assistant Executive Engineers to enable the appellants to know their exact seniority position in Class-I Junior and that the respondent No. 1 be directed to revise the seniority list of Officiating Executive Engineers with reference to their seniority in lower grade that is Assistant Executive Engineers as the said list deprived the appellants of their lawful rights of seniority. The department representative appeared before the Tribunal but could not controvert the stand of the appellants, therefore, learned Tribunal passed a judgment on 22-5- 197'3 directing the respondent No.1 to the effect that complete seniority list of Assistant Executive Engineers of Class-I Junior be published by showing the appellants` names therein at the appropriate place.
7. As the said seniority list was not published in accordance with the order of the Service Tribunal the appellants asked for implementation of the same through application, dated 15-11-1976. A report was called for on 5-1-1977. The respondent No.1 was directed to submit a seniority list of that date He was given another opportunity to submit the list by 27-5-1977 which was at last submitted.
As the basic seniority of the appellants stood restored vide the said seniority list the appellants agitated to respondent No. 1 to give them their due seniority in the aforesaid seniority list of Officiating Executive Engineers as well. As the claim of the appellants was not conceded the appellants filed this appeal on 1-6-1977.
8. It is unfortunate that this appeal has been pending with this Tribunal for full five years for one reason or other and now has come before us ultimately for adjudication. Meanwhile we also find that the respondents have issued a seniority list, dated 16-2-1982 in which the same position, viz. Appellants, has been taken and they have been shown junior to the contesting respondents.
9. We have heard the learned counsel for the appellants as well as Messrs Aitzaz Ahsan and Khawaja Muhammad Akram, learned counsel for the contesting respondents and have perused the record of this case carefully with their assistance.
10.The learned counsel for the appellant has argued that according to the law settled and rules in this behalf a person who is senior in the lower grade would be entitled to retain his seniority in the higher grade, unless and until he has been superseded. According to learned counsel since the appellants are undisputedly senior to all the respondents as Assistant Executive Engineers in Class- I junior, they would rank senior to all the contesting respondents in Class-I (Sr) as they have not been superseded by them in any manner whaesoever. The learned counsel for the appellant has further assailed the impugned seniority list of 1972 of Officiating Executive Engineers as well as the seniority list of 1982 of the same class by submitting that these lists are self-contradictory and are against the stand taken by respondent No. 1 in parawise comments where it has been asserted that these lists have been formulated only on the basis of the date of continuousi officiating appointment of the respondents as Executive Engineers, which in the case of contesting respondents being earlier than the dates of such officiating appointment of the appellants, the former are senior to the latter. He has demonstrated this point by pointing out that the date of appointment as Officiating Executive Engineers of all officers at Serial No. 8 to 18 in the final seniority list dated 16-2-1982 ranged between 8-11-1961 to 15-6-1963 yet they have been placed junior to Officer at Serial No. 7 whose date of appointment as Officiating Executive Engineer is 4-8-1964.
Similarly Officer at Serial No. 12 who was appointed as such w.e.f. 18-5-1962 has been shown senior to Officer at Serial No,13 of the same list so that the latter's date of appointment is 12-10-1961. The learned counsel has also quoted further similar instances as well, which need not be reproduced.
11. The learned counsel has further argued that this very issue came up for decision before Punjab Civil Servants Appellate Tribunal in 1973 in four Appeals Nos. 20/20, 52/19, 53/17 and 54/18 of 1973 wherein Messrs Naeem Akhtar Khawaja, Maqsood Ahmad Malik, Mazhar Hussain Syed and Abbas Raza were appellants and most of the contesting respondents figured as respondents. It has been pointed out by the learned counsel for the appellants that the Punjab Civil Services (Appellate)
Tribunal has given clear cut verdict on this issue by holding that appellants being senior in lower grade as Assistant Executive Engineers Class-1 (Junior) would do deemed to be senior as Officiating Executive Engineers, irrespective of their dates of promotion to such posts.
12. On the other hand, the learned counsel for respondents Messrs Aitzaz Ahsan and Khawaja Muhammad Akram have relied on Rule 15 (4) of the West Pakistan Irrigation Engineers Service Class-I Rules 1967, and have contended that the rule of seniority as. Laid in Rule 15 (2) would not be attracted to the case of respondents but only sub-rule (4) would be applicable in their case. They have further adopted in extenso parawise comments submitted by respondent No. 1 and have urged that the criteria for fixing the seniority of the appellant's qua the contesting respondents would be the date of induction as Officiating Executive Engineers and the seniority in lower grade held by the appellants would be of no avail to them while fixing their seniority in the higher grade i.e. Officiating Executive Engineer. It has further been contended that contesting respondents have not so far been given regular Class I (Junior) as their status has been raised to Class-1 (Jr) w.e.f.
22-7-1971 which does not amount to their regular promotion to Class-I (Jr) and in view of this there does not exist any inter se seniority between the parties in Class-I (Jr) which may possibly be reflected in Class-I (Sr).
13. We have given our anxious thought to the arguments so raised before us and have perused the record of this case alongwith the rules and law cited before us by the parties.
14. In this matter we will first of all advert to Rule 15 (2) of 1967 Rules which lays down as under.- "Notwithstanding anything contained in sub-rule (1), the seniority of Class-II Officers and Temporary Engineers recruited to or absorded in the Service, who were holding the posts of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiation as such; provided that if in any particular case Government is of the opinion that the application of this sub-rule causes or will cause hardship to one or more members of the Service, Government may, in consultation with the Commission, assign to the persons concerned such seniority as it considers equitable."
This rule is supplemented with three explanation which we also reproduce for ready reference.
Explanation I.--If a junior officer in a lower grade is promoted to a higher grade temporarily in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the interest of his seniors in the fixation of his seniority in the higher grade.
Explanation II.--If a junior Officer in a lower grade is promoted to a higher grade by superseding a senior officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.
Explanation III.--A junior Officer appointed to a higher grade shall be deemed be have superseded a senior officer if both the junior and senior officers were considered for higher grade and the junior officer was appointed in preference to the senior officer.
15. The plain meaning of these Explanations is that an officer senior in lower grade will be deemed to be senior in higher grade although he might have been promoted on later date unless and until he stood superceded.
16. Sub-rule (2) of the Rule 15 is also clear on the subject as it applies to those persons who were holding the posts of Executive Engineers before coming into force of the Rules of 1967.
17. Now we look into a claim of respondents wherein it has been asserted that the applicable clause of section 15 would be clause (4) and not clause (2). We reproduce the same for ready reference.
"Clause 4, Rule 15:-Seniority in the various grades of the Service of the members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined.
18.We need not deal with this argument further as the application) of this rule is restricted to fixation of seniority of members of the service appointed by 'initial appointment' vis-a-vis those 'appointed otherwise to the same grade. In the present case the appellants as well as the respondents both are promotees i.e. "appointed otherwise" as Officiating Executive Engineers, therefore, by no measure sub-rule (4) is applicable to the facts of the present case. This point was further conceded by the learned DA who submitted that the application of sub-rule (4) was uncalled for as respondents as well as the appellants were all promotees to the post of Officiating Executive Engineer and respondents were never recruited directly to the above posts. We have quoted rule 15 (2) above and while analysing the same have come to a conclusion that the principle laid down therein fully applies to all the appellants and the contesting respondents. We are further fortified in our above view by the aforementioned judgment dated 1-6-1973 in which this issue was before the learned Tribunal and the same was settled by the Tribunal in unequivocal terms following rule 15 (2). The learned Tribunal in the earlier part of their judgment held that the appellants in these cases were positively senior as Assistant Engineers in Class-II and then they proceeded to determine their seniority as Assistant Engineers in Class-I (Jr). It was held as under: "Thus, those from amongst the parties who were graduate Engineers were raised in status to Class- I (Jr) by upgrading of the post, their inter se seniority which they enjoyed in the earlier rank of Assistant Engineer, they will maintain their seniority in Class-I (Jr) in accordance with their seniority as Assistant Engineers."
The learned Tribunal further elaborated by dealing with the case of Mr. Naeem Ahmad Khawaja appellant in that case and said while Mr. Naeem was promoted as Officiating Executive Engineer on ad hoc basis from 15-6-1963 which is the date before 1969 Rules were notified. He was promoted on regular basis with the approval of Public Service Commission by order of 14-10-1961 w.e.f. 15-6- 1963. Thus, he has been absorbed as Executive Engineer after the rules were enforced. The learned Tribunal further examined the case of the other appellants' service and concluded in the following terms.
"The determination of inter se seniority of the four appellants and such of the respondents as have been promoted as Officiating Executive Engineer on regular basis is governed by Sub-Rule (2) of Rule 15 of the West Pakistan Irrigation Engineers Service (Class-I) Rules,1967, which provides that notwithstanding any thing contained in sub-rule (1) of Rule 15, the seniority of Class-II Officers and Temporary Engineers recruited to or absorbed in the service, who were holding the posts of Executive Engineers or equivalent posts, shall be determined with reference to their continuous officiation as such; Provided that if in any Particular case Government is of the opinion that the application of the rule causes or will cause hardship to one or more members of the Service, Government may, in consultation with the Public Service Commission, assign to the persons concerned such seniority as it considers equitable. Sub-rule (2) of Rule 15 is followed by the three standard explanations, which have the seniority of a senior officer in the lower rank though promoted later unless he has been superseded. While the effect of sub-rule (2) of Rule 15 is to make those who are promoted earlier senior to those who are promoted as Executive Engineer later on the basis of dates of continuous officiation, the effect of the three standard explanations is to safeguard the seniority of the senior officer unless he has been superseded."
19. We are fully in agreement with the above view and hold it as correct interpretation of Rule 15 (2) and no exception can be taken to this view. This view of the P. C. S. A. T. Has now attained the finality which cannot be interfered with by us at this stage, as the same is based on the fundamental principles of seniority i.e. Persons holding senior position the lower grade continue to be senior in higher grade as well.
20. We further find that the respondent No.1 has applied different yardsticks to different persons which we cannot approve. In the earlier seniority list issued vide Notification of respondent No. 1 has fully implemented the decision of the learned Punjab Civil Service Appellate Tribunal in the aforesaid appeal as mentioned in the earlier part of our judgment in case of Messrs Naeem Akhtar Khawaja. While drawing up that list respondent No. 1 arranged the seniority of contesting respondents amongst themselves as well as against others according to their basic seniority and irrespective of the dates of their officiation as Executive Engineers. To the contrary while fixing appellants' seniority vis-a-vis contesting respondents Government has now chosen to ignore the said criterion. This sort of contradictory stand is absolutely against the settled principle of law and rules and we have no hesitation to hold that the stand now taken by the respondent No. 1 cannot be allowed to prevail. As pointed out by the learned counsel for the appellants, we have found that in the impugned seniority list the seniority inter se of contesting respondents and others had been shown senior in accordance with their basic seniority and irrespective of their dates of promotion as Officiating Executive Engineers. We, therefore, get further strength to our view that the department has failed to do justice in the case of appellants who have been dealt with at their whim and fancy. We are also not impressed by the contention of the learned counsel of respondents that upgradation of status of the contesting Respondents to Class-I (Jr) w.e.f. 22-7- 1971 does not amount to their regular promotion to Class-I (Jr). We do not see any difference between raising of status to Class-I (Jr) and promotion to that Class.
21. The result is we accept the appeals and declare the appellants senior to the contesting respondents as officiating Executive Engineers as they have been found undisputedly senior to them as Assistant Executive Engineers in Class-I (Jr) and have not been superseded by them. The result is that the impugned seniority lists, dated 14-10-1972. 19-8-1975 and 16-2-1982 are set aside to the extent as discussed above and direct the respondent No. 1 to assign new place of seniority to the parties as directed by us in seniority list which should be at once amended. However, the parties will bear their own costs.
A. E.