SHAFIUR RAHMAN, J.---Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the Service Tribunal has correctly deprived the appellants of their seniority notwithstanding the fact that they entered into the service as directly recruited Inspectors from an earlier date as against the respondents.
2. The appellants were released from the Army and were deficient in the educational qualifications but were appointed temporarily from dates earlier to those of the respondents as InspectoRs, The respondents were also at first recruited temporarily and without observing the Rules of recruitment, a few months after the appellants. By an Order dated 3-1-1980, the appointment of the respondents was regularized from the date of their appointment. A similar order on the basis of the recommendations of the Selection Board was passed on 22-8-1983 in respect of the first two appellants and on 15-9-1983, in respect of the third appellant. A seniority list was issued on 1-10- 1983 wherein the appellants were shown at serial Nos. 23, 24 and 25, whereas the respondents were shown at serial No,44 to 46. The respondents represented to the Inspector-General of Police and then filed three separate appeals before the Service Tribunal claiming seniority. The Tribunal upheld their claim by observing as hereunder:- "..We find that the appellants were given regular appointment w,e,f. The date of their initial recruitment by order made on 3-1-1980 and it is also noteworthy that this regular appointment was given to them after they had qualified the prescribed examination of the Public Service Commission. Moreover, the appellants were also appointed on regular basis against substantive vacancies. On the contrary the respondents No,2 to 4 were never made to appear before the Public Service Commission. They were absorbed in service by order made in the year 1983. The instructions by the Government of Balochistan, Home and Tribal Affairs Department, conveyed to I.- G. Police, vide letter No,SO(H) I(iii)268/83, dated 6-6-1983 for absorption of respondents No,2 to 4 in Police service were that their date of appointment in the regular cadre will be reckoned from the date from which the vacancy becomes available against the quota of direct recruitment. The order of regular appointment of the appellants were made in the year 1980, their services were regularised by adopting the method prescribed for initial recruitment. On the contrary the respondents No,2 to 4 were absorbed in the service in the year 1983 and were not recruited through the normal method of recruitment. As such their regular appointment by absorption before the date of regular appointment of the appellant was unjust. The appellants were recruited through normal method of recruitment while the respondents No,2 to 4 were absorbed in service. As such absorption could not in all fairness take place from a date earlier than the persons who were recruited through normal method of recruitment. We are, therefore, of the considered opinion that the appellants should be placed senior in service as Inspectors than the respondents No,2 to 4."
' The seniority list as prepared by the Department was ordered to be rectified by assigning to the respondents a place higher in seniority.
3. Mr. Basharatullah, Advocate the learned counsel for the appellants contended that as the regularization of the appointment of the appellants as well as of respondents had taken place and the date of regular appointment of the appellants was prior in time, they had to be adjudged senior to the respondents. According to the learned counsel, the Tribunal has committed an error in declaring the respondents to be senior to the appellants and the factors which have weighed with the Tribunal, are extraneous and inapplicable to the situation.
4. The controversy in appeal has to be decided primarily by reference to the Police Rules and the superiority of the Police Rules over any other has been demonstrated in the decision given in the case of Inspector-General of Police Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159. The Rules which are applicable are reproduced hereunder:- "12.6. Oualifications for direct appointment as Inspector or Assistant Sub-Inspector.- (1)............................................
(2) Direct appointment in the rank of Inspector shall be made on the recommendation of the Punjab and N.-W.F.P. Joint Public Service Commission. The Commission will hold an examination of degree standard for them in the following subjects plus viva voce:- ' Subjects Marks English Essay 100 Urdu Essay 100 General Knowledge 100 Viva voce 150 ' Applications will be invited by the Public Service Commission from time to time.
(3)........................
"12.1. Authorities empowered to make appointments.--
(1) ......................
(2) All direct appointments to non-gazetted raks above that of Constable and all first appointments of civilian clerks shall be made by the appointing authority on consideration of the recommendations of a selection board. Such Boards shall be constituted in accordance with the orders of the Inspector-General.
(3) The power to confirm the appointment of officers appointed on probation vests in the prescribed appointing authority.
"12.2 Seniority and probation.-- ' Seniority, in the case of upper subordinates, will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date, and the seniority of officers appointed direct on the same date being reckoned according to age. Seniority shall, however, be finally settled by dates of confirmation, the seniority inter se of several officers confirmed on the same date being that allotted to them on first appointment. Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted or confirmed, regain the seniority which he originally held vis-a-vis any officers promoted or confirmed before him during his deputation....................................................................................... "
"12.3. Direct appointments of Inspectors and Assistant Sub-InspectoRs,--Except as provided in Rules 12.1 and 12.4, direct appointments shall not be made except in the rank of Inspector, Prosecuting Sub-Inspector and Assistant Sub-Inspector. Such appointments in the rank of Inspector and Assistant Sub-Inspector may be made up to a maxium of ten per cent and twenty-five per cent of vacancies, respectively."
' The qualifications prescribed for direct recruitment under Rule 12.6 are as hereunder:- "(a) Good moral character.
(b) Good physique and active habits.
(c) He must be between 18 and 25 years of age.
(d) He must, if a candidate for an inspectorship, ordinarily be a graduate of a university, or if a candidate for assistant sub-inspectorship have passed the first examination in Arts, or its equivalent in other faculties or he must hold the Diploma of the Aitchison Chiefs College; provided that the Inspector-General has power, in special cases, to dispense with these educational qualifications."
5. The case of recruitment of the respondents was referred to the Public Service Commission and was approved and the necessary notification of the regularization of their appointment issued on 3-1-1980. A Special Selection Committee cleared the appellants for absorption in the regular cadre of Inspectors on 22-8-1983 and 15-9-1983. The date on which the parties' appointment was made, approval and regularization happened to be earlier in the case of the respondents than that of the appellants. There is no principle whereby the executive authority can be held invested in the matter of direct appointment to make the appointment retrospective from a date earlier to the selection in accordance with law. This had to be shown by reference to the law because it would amount to interference with the vested rights of the civil servants who on the basis of earlier selection and regular appointment, get seniority over others selected later. No such law is shown whereby such a retrospective regularization of the direct recruits could be ordered by the Executive authority. In the circumstances, notwithstanding the earlier ad hoc appointment of the appellants as their regular appointment was after the regularization of the appointment of the respondents, the respondents have to be treated senior to the appellants.
6. No case is made out for interference with the decision of the Tribunal and the appeals are dismissed. No, costs.