1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the three appellants under Article 212(3) of the Constitution to examine whether the Punjab Service Tribunal had by its judgment, dated 10-3- 1982 correctly applied the law in protecting and restoring the order of the departmental Authority, dated 2-9-1980, thereby re-fixing the seniority of respondent No.1 making him senior to the three appellants.
2. The respondent. No.1 was appointed as Steno-typist in the Labour Department on 21-2-1963. He was promoted as Stenographer on 30-6-1966 and thereafter, not promoted, but appointed by initial recruitment as Labour Inspector on- 13-5-1969. The appellants were also appointed Labour Inspectors by initial recruitment, as that was the only method of recruitment permissible under the law; the appellant No.1 on 3-11-1966, the appellant No.2 on 27-5-1967 and the appellant No.3 on 12- 10-1968. According to section 7 of the Punjab Civil Servants Act, as Labour Inspectors, the appellants were senior to the respondent No.1. They were promoted as Assistant Labour Officers in the same order, the three appellants from 31-5-1976 while respondent No.1 from 30-5-1977. In the West Pakistan Labour Welfare Subordinate Services Rules 1969, as originally framed, the recruitment to the post of Assistant Labour Officer was to take place only "by promotion from among members of the service holding posts of Inspectors, with at least three years experience as such in the Region where the vacancies occur". This rule was amended on 23rd October,1973. Thereafter only eighty per cent of the posts were to be filled by promotion from Labour Inspectors. Ten per cent were to be filled "by selection on merit with due regard to seniority from among members of the
(a) West Pakistan Labour Welfare Department Ministerial Service (Headquarters) holding the posts of Assistants, Head Clerks and Stenographers with five years' experience as such and domicile in the Region where the vacancies occur; and.
(b) The West Pakistan Labour Welfare Department Ministerial Service (Regional) holding the posts of Assistants, Head Clerks and Stenographers with five years' experience as such in the Region where the vacancy occurs.
3. With the other 10 per cent this appeal is not directly concerned.
4. By the same amendment Rule 6 was also amended to provide as hereunder by sub-Rule(2)- "(2) Appointment by initial recruitment to a post in the service carrying an initial salary of Rs.215 per mensem and above, and appointment by promotion to a post in the service carrying an initial salary of Rs.325 per mensem and above shall be or: the recommendations of the Selection Board "
5. The respondent No.1 was assigned seniority as Assistant Labour Officer with effect from 31-5-1977, the date of his continuous appointment in that grade. He represented to the Secretary and claimed seniority from 23-10-1973, the date of the amendment in the Recruitment Rules whereby Stenographers etc. Had got ten per cent reservation from promotion to the posts of Assistant Labour Officer.
6. The Secretary, Government of the Punjab, Labour Department, passed the following order on 2-9- 1980 on his representation--- "The representation of Mr. Muhammad Rafiq Malik, Labour Officer, Lahore, dated 7-5-1980 against fixation of his seniority as Assistant Labour Officer with effect from 31-5-1977 was considered by Government. It has been observed that by virtue of an amendment in the West Pakistan Labour Welfare (Subordinate Service) Rules,1969 vide Notification No. SOR-111-1-47/72. Dated the 23rd October,1973, Mr. Muhammad Rafiq Malik was eligible for promotion as Assistant Labour Officer with effect from 23-10-1973 against 10% quota reserved for Assistants, Head Clerks and Stenographers.
7. The representation was deprived of his legitimate right of promotion without any cogent reasons.
8. The representation of Mr. Muhammad Rafiq Malik is, therefore, accepted with the direction that his seniority as Assistant Labour Officer may be refixed from the date he was actually entitled to promotion as Assistant Labour Officer against the quota referred to above.
9. A revised seniority list of Assistant Labour Officer may be drawn and circulated within 15 days under intimation to the Administrative Department."
10. "The representations of Messrs Khizar Haider Malik, Abdul Majid and Salahuddin Bhatti, Assistant Labour Officers (presently working against the posts of Labour Officers Temporarily) against fixation of seniority of Mr. Muhammad Rafiq Malik as Assistant Labour Officer with effect from 23-10- 1973 were considered by the Secretary Labour Punjab. All the three representationists and Mr. Muhammad Rafiq Malik were heard by him for the first time. After thorough consideration the representations of the abovementioned three officials have been accepted.
(2) Consequent upon the abovementioned decision the earlier orders passed by Government in letter No.17-60(Lab.IV) / 75-A, dated 2-9-1980, are withdrawn. In view of this decision, the Directorate of Labour Welfare, Punjab, shall prepare and circulate revised seniority list of Assistant Labour Officers."
11. This substituted order aggrieved the respondent No.1 who took his grievance to the Punjab Service Tribunal. The Tribunal examined only one legal issue, viz. The eligibility of the respondent No.1 to be promoted against the reserved quota and decided it in favour of the respondent No.1 and thereafter, allowed his appeal, restored the order of the Secretary, dated 2-9-1980, setting aside the order, dated 7-6-1981. The relevant portion of the Tribunal's order is .As follows--- "One objection to the order of 2-9-1980 particularly stressed on behalf of the respondents is that the appellant did not have five years' experience as Stenographer. Apart from the strictly legalistic interpretation there is also a common sense view of the matter. The post of ALO is of a technical nature. One may ask: who can be expected to work better as ALO one who only has experience of five years as Stenographer or one who has done less than 5 years as Stenographer but in addition has put in a number of years as Labour Inspector? However, this common sense view is mentioned only en passant and not as a fact that stands in favour of the appellant, because otherwise it might be described as obiter dicta.
12. The upshot of the discussion in paragraph 5 above is that as Stenographer the appellant was working in a substantive permanent post and had retained his lien on it when he became Labour Inspector. The respondents have not been able to file any document or evidence to point to a contrary position. Therefore, when the Secretary passed the order of 2-9-1980 he was correct in his appreciation of the situation and there was no cause later to pass the impugned order. The order of 7-6-1981 is, therefore, set aside as null and void. Resultantly, the order of 2-9-1980 made by Secretary Labour will continue to hold the field, with attendant benefit of seniority to the appellant."
13. We have heard the learned counsel for the parties at length and find that the Tribunal's impugned order cannot at all be sustained The reasons for our coming to this conclusion are numerous.
14. The amendment in the Recruitment Rules which is the subject-matter of controversy has already been reproduced. The crucial words therein are "with five years' experience as such". The word "experience" has the Dictionary meaning (The Oxford English Dictionary Volume 3 page 430) 'practical demonstration', 'to fulfill in practice' 'knowledge resulting from actual observations or from what one has undergone'. The word 'as such' has necessarily reference to the earlier enumerated categories of a Stenographer, Head Clerk, etc. To have a lien on a post is altogether different from having the practical on the job experience of the post on which one holds the lien.
15. The Service Tribunal was conscious of the difficulty with regard to the satisfaction, of this condition and took not a "legalistic" but a "common sense" view of the matter. In doing so, it omitted to note that this change was by way of any amendment in the Recruitment Rules with the object of making an opening in a more or less closed cadre with no prospect of promotion pr advancement in the heirarchy. A reservation of ten per cent promotion posts was made on satisfaction of the conditions prescribed therein. In order to achieve the purpose of the amendment, and to ensure the intended benefits for the categories sought to be served it was necessary that the conditions prescribed should have been fully satisfied. The respondent did not satisfy the eligibility requirement, having not served on the post nor gained the experience on the post for the requisite period.
16. Another impediment for respondent No.1 was the fact that the promotion which he wanted as of right on the basis of seniority alone involved selection on merit and his being senior-most or merely eligible for promotion would not have by itself entitled him to be promoted. He had to compete with other eligible and the Selection Board, and not the Secretary to the Government of the Punjab, was to determine his suitability for appointment. This exercise was at no stage undertaken and unless rules prescribing the manner of selection were duly observed, the respondent could not claim any right to seniority whatsoever.
17. The order of the Secretary, dated 2-9-1980 (already reproduced in extenso) does not promote the respondent No.1 as Assistant Labour Officer from 31-5-1973. It only recognizes his eligibility. Unless the respondent No.1 was promoted and appointed to that post, mere eligibility did not entitle him to seniority. The Secretary in antedating his seniority as Assistant Labour Officer to the date of his eligibility, without promoting him to that post, violated the following laws on the subject------
(i) Section 7, subsection (2) of the Punjab Civil Servants Act which provides that "7. Seniority.--(2) 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: Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
(ii) Rule 8, sub-rule (1), clause (b) of Punjab Civil Servants (Appointment and Conditions of Service)
18. Rules, 1974 which provides as hereunder--- "(8) The seniority inter se of persons appointed to posts in the same grade in a functional unit shall be determined:"
19. "8 (1)(b).--in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade; provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person."
(iii) Rule 10 of the West Pakistan Labour Welfare Subordinate Services Rules, 1969 which provides as does Rule 8 ibid."
20. Such an illegal order as was passed by the Secretary on 2-9-1980 could not be blessed by the Services Tribunal or restored. The subsequent order, dated 7-6-1981 rightly removed it from the record and declined to give effect to it.
21. For the foregoing reasons, this appeal is allowed with costs and the order of the Service Tribunal is set aside thereby restoring they order of the Secretary, dated 7-6-1981.