S. ABDUL JABBAR KHAN (CHAIRMAN). --Muhammad Anwar Hakim, Assistant Agricultural Engineer, Multan, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Secretary to Government of Punjab, Agriculture Department, Lahore and Messrs Falak Sher Khan and 31 others as respondents.
2. By virtue of this appeal he has prayed that the impugned seniority list dated 2-6-1984, be set aside qua the appellant and respondents be directed to place the appellant at serial No.1 of the impugned seniority list.
3. Brief facts of the case are that the appellant after obtaining Degree of B.Sc. (Agr.) with Diploma in Agricultural Engineering from American University of Beirut, joined the Agricultural Machinery Organization, Thal Development Authority in 1962, as Apprentice Engineer and thereafter, he was promoted as Assistant Engineer (Operations) on 13-10-1963, against a substantive post. The appellant was confirmed as Assistant Engineer (Operations) by Director, Agricultural Machinery Organization, Thal Development Authority, vide his Letter No. 10320-24 dated 12-9-1964 w.e.f. 13-10- 1964. The Thal Development Authority was dissolved with effect from 1-6-1969, and the Chief Secretary to Government of West Pakistan appointed as Administrator, Thal Development Authority for the purpose of winding up of the Thal Development Authority. In view of the decision of the meeting of the Secretaries dated 20-1-1970, a notification dated 29-6-1970, was issued, by respondents, by which Thal Development Authority's staff was transferred alongwith their respective posts on the following terms and conditions: -
(i) They will stand appointed against the posts they are already holding with a possibility of promotion etc. As if in their own line in defunct-organization.
(ii) The subsequent enhancement of the prescribed qualifications etc. If any, will not adversely effect the interest of those already appointed and promoted in accordance with the minimum qualifications prescribed for the respective posts in the defunct-- Thal Development Authority.
(i.e) Their pay will have to be fixed on the basis of continuous service in the grades /consolidated scale with increment on ususal dates.
(iv) They shall be treated as new entrants for the benefits of pension, G.P. Fund, Group Insurance and all other amenities and facilities admissible to Government servants."
The appellant thus stood transferred to Agriculture Department in pursuance of the aforesaid notification. The claim of the appellant is that he was holding a permanent post of Assistant Engineer (Operations) and was confirmed from 13-10-1964, as such, therefore, after the dissolution of T.D.A on 1-6-1969, he stood transferred to the Agriculture Department alongwith his post as well as seniority and thus respondents Nos.7 to 16 and 23 to 28 and 29 to 33, who were holding temporary posts in officiating capacity and other respondents, who had not joined the services as yet, may be declared junior. He made representation to the Government by Annexure 'G' appended with this appeal, which was considered but rejected in the form of seniority list now so impugned before this Tribunal. In that representation, his claim was that as per clause 3, his services be treated as continuous since his date of joining in Thal Development Authority from 13-10-1963, and he should be absorded from 13-10-1963. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney and Mr. Masud Ahmad Riaz, counsel for the respondents and have perused the entire record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that as the appellant was holding a permanent post of Assistant Engineer (Operations) substantively in which he was confirmed from 13-10-1963, therefore, the appellant was transferred to the Agriculture Department alongwith his post which he was holding at the relevant time, whereas respondents Nos. 3 to 16, 22 and 25 to 33 were holding temporary posts in officiating capacity and the other respondents had not yet joined the services, therefore, the appellant ranked senior to all those respondents. For this he has relied on the judgment of Muhammad Ashraf and others v. Secretary Agriculture decided on 19-3-1974 and upheld by the Supreme Court of Pakistan vide judgment reported as 1982 SCMR 408. It has been further argued that it was a settled law that persons holding substantive posts shall rank senior to those who are holding temporary posts in officiating capacity which conform to the principle of natural justice as laid down by the Supreme Court of Pakistan in Khushi Muhammad's case reported as PLD 1970 SC 203. He has relied on the case of Siddique Ahmad Chaudhry v.
Government of Punjab Appeal No.328/475 of 1975, decided on 29-3-1981, in which it has been held that the staff of Agricultural Machinery Organization was transferred to the Government of the Punjab with their status on last pay drawn and they were held to be entitled to permanent posts in Government equivalent to the post held by them in Thal Development Authority substantively.
6. On the other hand learned counsel for the respondents Mr. Masud Ahmad Riaz and learned District Attorney have submitted that the appellant alongwith other employees of the defunct-Thal Development Authority were absorbed in the Agriculture Department w.e.f. 1-7-1970, under a Special Policy as framed by the then Government of West Pakistan as per notification dated 29-6- 1970. Relied upon by the appellant B himself. According to this policy as well as subsequent policy with regard to determination of such employees they had to take their seniority via-a-via to regular employees of the Agriculture Department w.e.f. 1-7-1970. It has been submitted that since they were transferred and absorbed in the Agriculture Department under a special policy the normal rules of the Agriculture Department, regulating the terms and conditions of service of the Agriculture Department employees permitting them to count their seniority from the date of their continuous appointments in the Agriculture Department, will not be applicable to them. Similarly the rules prevailing in the Agriculture Department that a direct recruit appointed against a permanent post, will be senior to a promotee who is promoted against a temporary post will also not be applicable to him. Learned counsel for the respondents in support of this proposition has placed reliance on the following judgments of the Supreme Court of Pakistan:-
(1) 1982 SCMR 408 by which judgment of this Tribunal delivered in the case of Muhammad Ashraf v. Government of Punjab 1981 PLC (C .S .) 731, was upheld
(2) 1982 SCMR 978.
7.We have given our anxious thought to the arguments advanced by the parties and find that both the parties are relying on the same judgments of this Tribunal as well as of the Supreme Court of Pakistan reported as 1982 SCMR 408. In view of the above we will like, first of all refer to the following portion of the said judgment relied by both the parties:- "In that case the appellants Nos.4 and 5 who were transferred from T.D.A. To the Agriculture Department alongwith the appellant claimed that they should be given the benefit of their post service rendered in the T.D.A. Towards the seniority. Their seniority should not be counted from 1-7- 1970 as new entrants. Their claim was disallowed by the Tribunal and the judgment was upheld.
The relevant portions from the judgment of the Supreme Court of Pakistan are as under :- "4. The five appellants in the two appeals fall in two distinct categories and it is not possible in any discussion of their case to ignore this distinction. The first three appellants held the posts of Foreman and Supervisors and as such were eligible on satisfying the other conditions to be promoted under Rule 5 (b) of the Rules. Appellants 4, 5, were not so placed. They were serving in the Thal Development Authority till its dissolution on 30-6-70, As from 1-7-1970 they were transferred alongwith their posts to the Agriculture a Department on terms specified by Governor as follows:-
(1) They will stand appointed against the posts they are already holding with the possibility of promotion etc. As if in their own line of the defunct-organization.
(ii) The subsequent enhancement of the prescribed qualification etc. If any, will not adversely affect the interests of those already appointed and promoted in accordance with the minimum qualifications prescribed for respective posts in the defunct-Thal Development Authority.
(i.e) Their pay will have to be fixed on the basis of continuous service in the grade /consolidated scale with increment on usual dates.
(iv) They shall be treated as new entrants for the benefits of pension and G.P. Fund, Group Insurance and all other amenities/ facilities admissible to Government servants."
These two appellants however claimed' that they were appointed Assistant Engineers in Thal Development Authority on 5-1-1962 and 23-1-1963, respectively.
"13. On the view that we have taken on the two material questions appellants Nos.1 to 3 will have no locus standi to challenge the inter se seniority of the direct recruits. The appellants Nos.4 and 5 are in no better position for another reason. They did not become members of the service on any reasoning whatsoever before 1-7-1970. The rights of the respondents Nos. 2 to 22 stood established before 1-7-1970 and remained unaffected by their coming to the department with their posts."
We have perused this judgment with respect that it deserves and find that the reliance placed by the respondents in this case is fully established from the said judgment and the case of the appellant does not get any support from this. We also find that the order of the Governor regarding transfer and absorption of T.D.A. Employees in Punjab Government as new entrants with effect from 1-7-1970, and grant of benefit of seniority to them with effect from 1-7-1970, constitutes a special policy. It was for this reason that their Lordships have made it clear that they will become "Member of Service" w.e.f. 1-7-1970. This term is too obvious to be explained as a civil servant stands regularly appointed and entitled to seniority only from the date he becomes a Member of Service. In view of this appellant's seniority must be determined under the provisions of that Special Policy and not under the normal service Rules. For this we place reliance on 1980 SC MR 978 a dictum of their Lordships of the Supreme Court of Pakistan. Para. 10 will be useful to reproduce below:- "A contention raised that the notification of 18-5-1974 was ultra vires of the Punjab Civil Servants Ordinance (II of 1974) on the ground that the principle of seniority prescribed by the notification was in conflict with section 8 of the Ordinance is without substance. The notification itself had been issued by the Governor in the exercise of his powers under section 25 of the Ordinance, which enabled him to 'make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Ordinance.' Section `8 says that seniority or initial appointment to a service, cadre, grade, or post shall be determined in the prescribed manner. Since the appointment in question was not under the ordinary rules but under a special provision made for the purpose, it follows that the seniority of such appointees would be governed by the principle prescribed therein for determining seniority. We are satisfied that the case of the petitioners was governed by the notification dated 18-5-1974, and therefore, the seniority was to be regulated as laid down in its clause (i.e)".
We further find that similar issue came before this Tribunal in case of Mukhtar Ahmad and 4 others v. Secretary Agriculture and 6 others. In that case too Thal Development Authority employees Messrs Falak Sher Khan and others who were respondents in this case, were also transferred from T.D.A. And they lodged similar claim against the Assistant Agriculture Engineer of the Department.
In that case also we held as follows: - "8. This matter went before the Supreme Court of Pakistan when M/s Saleem Akhtar Bhalli and Muhammad Saleem and others prayed for the grant of leave to appeal and so far this issue is concerned, it was absolved as under by their Lordships of the supreme Court of Pakistan:- 'The upgradation of all the Graduate Engineers to Class-I did not have the effect of making all Graduate Engineers Members of Class I Service."
It will be useful to mention at this stage that in the case of Saleem Akhtar Bhalli and others, there were Class I (Jr) Service in between Class-II and Class-I (Sr) but in the case of Agricultural Engineering Department, no such class is available, therefore, our earlier judgment so upheld by the Supreme Court of Pakistan, would have greater impact inasmuch as the case of the present contesting respondents, there would be no question of promotion as their being no Class-I (Jr)
Service or post. While going through the comments of the Department, we further find that in para.8 of their comments it has been conceded on behalf of the Department as under:- 'No doubt respondents Nos. 2 to 5 were not promoted to a higher post but their status were raised from Class-II to Class-I w.e.f . 22-7-1971 against similar treatment to the appellant were.f . 2 8-8- 1972 .
While conceding the main issue they have taken a stand that "as such the respondents Nos. 2 to 5 became senior to the appellants." This stand in the comments is self-destructive in view of their concession so referred to in the earlier part of this paragraph. Once it has been decided that mere upgradation of status of the contesting respondents neither makes them Member of Service nor this can be treated as an act conceded by the Department that the appellants entered into service in the year 1968, whereas the contesting respondent No.2 Falak Sher Khan was transferred from Thal Development Authority w.e.f . 1-7-1970 and other three contesting respondents Nos. 3, 4 and 5 joined as Assistant Agricultural Engineers as direct recruits on 28-1-1972, 17-1-1972 and 22-1-1972 respectively. In case of Falak Sher Khan the latest judgment of Supreme Court of Pakistan 1982 SCMR 408 would be applicable wherein it has been held that the transfer from T.D.A. Of persons whose claim was rejected by the Tribunal did not become Member of Service on any reason whatsoever before 1-7-1970.' As regards other contesting respondents it is a settled principle of law that the earlier selectees of Commission are always senior to latter selectees."
7. We have also taken into consideration the case of Siddique Ahmad Chaudhry on which learned counsel for the appellant has placed reliance and find that the same was set aside by their Lordships of the Supreme Court of Pakistan in their judgment reported as 1986 SCMR 30. In that case also their Lordships of the Supreme Court of Pakistan has clearly held as under: "His was not a case of direct recruitment stricto senso under the Punjab Service of Irrigation Engineer's Class-I, Rules, 1967. His case was of absorption of an officer rendered surplus on dissolution of Thal Development Authority. In the circumstances he had no case on merits either.
Consequently we accept this appeal set aside the impugned order of the Service Tribunal and dismiss the service appeal of the respondent as incompetent, timebarred and without merit. No order as to costs."
8. In view of the above we are of the considered opinion that the appellant Muhammad Anwar Hakim cannot be given the benefit of his earlier status of permanent service in the Thai Development Authority and is only entitled to be placed in the seniority in accordance with the Special Provisions/ Policy as made by the Governor in his order dated 29-6-1970, so quoted above.
Resultantly we do not find any merit in this appeal, which is dismissed. There will be no order as to costs.
A. E.