1. MUHAMMAD HALEEM, C.J.--In this petition, the seniority list of 1972 is under challenge. It was amended in 1977 on the representation of the petitioners and again on further representation by others, it was restored to its original form. It was challenged in Appeal No. 381 of 1977 before the Punjab Service Tribunal by Manzoor Ullah and the petitioners were arrayed as respondents in that appeal. And as relief was granted to Manzoor Ullah, the petitioners have joined in filing this petition against Manzoor Ullah and the Province of the Punjab.
2. The result of the decision in appeal before the Tribunal is that although Inayat A.I, who was regularly appointed on 1-10-1965 as Assistant Oil Technologist (Class II) was held to be junior to Manzoor Ullah, who officiated in Class II post on ad hoc basis since 18th of March, 1963. Manzoor Ullah was appointed as an Agricultural Assistant on 21st of November, 1955. On 18th March, 1963, he was promoted on ad hoc basis to the post of Assistant Oil Technologist (Class II) on the condition that he will hold it till a direct recruit was appointed through the Public Service Commission. This period was extended on 8-6-1963 for six months and again extended on 6th of January, 1964.
3. However, it was made clear that this was a stop-gap arrangement till the vacancy is filed. On 19th September, 1964, he vacated the post and proceeded for training abroad. But in order to facilitate the withdrawal of his pay for two years a temporary post of O.S.D. Was created to accommodate him for that purpose.
4. On 29th of June, 1964, the post of Assistant Oil Technologist (Class II) was advertised. The petitioner Inayat A.I as well as Manzoor Ullah applied to the Public Service Commission for their selection.
5. Manzoor Ullah was rejected while Inayat A.I was selected for the said post on 14th of September, 1965. Inayat A.I joined the post of Assistant Oil Technologist (Class II) on 1-10-1965. On 18-10-1966, on the expiry of the period, the post of O.S.D. Came to an end. On his return from abroad on 27th of October, 1966, Manzoor Ullah was allowed to draw his salary as an Agricultural Assistant as on that date no post was available against which he could have been absorbed. On 20-11-1966, another post of Assistant Agricultural Chemist, Class II, fell vacant and he was promoted on ad hoc basis to that post under a notification, dated 13th of June, 1967. It was again made clear to him that he will have no claim to seniority. His appointment was regularized by the Public Service Commission on 8th of July, 1968, from the date of his ad hoc appointment, that is, 20th of November, 1966. He nonetheless claimed seniority over the petitioners on the ground that he was promoted in Class II with effect from 18th of August, 1963, and therefore, he should have been placed higher in the seniority list. His other plea was that since this post fell vacant on 7th of June, 1962, and was reserved for the promote, he is entitled to anti-dated promotion in Class II with effect from 7th of June, 1962.
6. The Tribunal held: firstly, that in the gradation list Inayat A.I is shown as direct appointee while Manzoor Ullah, a Class II Officer, as a promotee, and in case Inayat A.I had been promoted departmentally then Manzoor Ullah, on his regular promotion to Class II post, would have regained his original seniority over Inayat A.I in accordance with Explanation I to Rule 9(i) of the West Pakistan Agricultural Service (Research Wing) (Class II) Rules, 1963, and, secondly, that seniority in this case will be governed by rule 9(2)(b) which provides that it shall be determined in the case of officer appointed by initial recruitment from the date of appointment while in the case of the officer appointed otherwise, it will be counted from the date of continuous officiation, and the Tribunal gave benefit of this provision to Manzoor Ullah and declared him to be senior to Inayat A.I on the basis that "he was never reverted, in fact, to the lower post." The Tribunal, however, did not accede to his other plea that he was entitled to ante-dated promotion as from 7th of June, 1962, when the post fell vacant though he was appointed against it on 18th of March, 1963.
7. Manzoor Ullah vacated the post on 19th of September, 1964, when he went abroad for training and on his return on 17th of October, 1966, he was allowed to draw the salary of an Agricultural Assistant as no post was available for him to be adjusted. It was on 20th of November1966 that he was again appointed on ad hoc basis to another post of Agricultural Assistant (Class II) when it fell vacant, and his appointment was regularised on 8th of July, 1968. There was, therefore no continuous officiation as held by the Tribunal. Again when he left for training abroad, he had no lien against that post as his appointment was held to be a stop-gap arrangement and terminated by his severance when he left for training abroad. That post was filled in by the direct recruit namely, Inayat A.I. In this view of the matter, it was erroneous to hold it to be a continuous officiation. Further the Tribunal was also in error to use the word "officiation" as in rule 9(i)(b) the word "appointment" is used, which implies regular appointment in the grade which is altogether a different connotation.
8. Section 7(2) of the Punjab Civil Servants Act, 1974, provides that 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. In either view of the law, the seniority could not be counted from 18th of March, 1963, but from the date on which his appointment was regularised. In this view of the matter, the presumption drawn for giving the benefit of Explanation I to subsection 9(f) is also out of place as it is not a case where the date of continuous appointment of two or more officers of service is the same nor of a promotion of junior officer in a lower grade to a higher grade temporarily in the public interest.
9. The Explanation only gives protection to the senior officers in the lower grade who are later promoted to the higher grade. The petitioner was a direct recruit, and therefore, this anomaly would not be apt.
10. Niaz Muhammad was appointed as Agricultural Assistant on 27 of August, 1956. He was promoted on 30th December, 1968, much after the regularisation of the appointment of Manzoor Ullah to the post of Assistant Agricultural Chemist (Class II) which is the sole criterion for determining the seniority inter se. Benefit is sought for higher seniority on the basis of the notification, dated 30th August, 1968, which only relates to re-designation of the posts without there being any change in the pay scales status or other terms of service in respect of the said posts. This notification does not in any way alter the situation as regards the determination of seniority.
11. Again a reference to the remarks "temporarily adjusted in Agricultural Technologist group-- seniority in Agricultural Chemistry group (disputed)" appearing in the notification, dated 12th of August 1972, will not, in any way, affect his regular appointment to the post as the word 'group' is not indicative of any cadre, grade or service, but only the re-designated posts group wise in the same grade.
12. The above conclusion, we have reached after hearing the counsel for the parties.
13. We would, accordingly, convert this petition into an appeal, and modify the order of the Tribunal in terms that the appeal of Inayat A.I succeeds and is allowed while that of Niaz Muhammad is dismissed There will be no order as to costs.