' SHAFIUR RAHMAN, J.--Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the Punjab Service Tribunal had by its order dated 10-11-1985 correctly given effect to Explanations II & III of Rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 in determining the seniority of the appellant as against respondent No, 3 in Grade-18.
2. The admitted facts of the case are that as a result of Competitive Examination, the appellant as well as respondent No, 3 (hereinafter referred to as the respondent) were directly recruited on 16- 6-1960 as Assistant Registrar in the Cooperative Department. The Public Service Commission had placed the appellant senior to the respondent. They were governed by West Pakistan Cooperative Service (Class I) (Men's Section) Rules, 1963. In the matter of promotion, Rule 5 thereof as amended in 1969 and Rule 8 applied. The appellant was promoted to Grade 18 (Deputy Registrar, Co- operative Societies) on ad-hoc basis on 5-8-1969 and the respondent was promoted on ad-hoc basis after him on 29-12-1969. In 1970, the regular promotion of the two was considered by the West Pakistan Public Service Commission as then required. On the strength of Rule 5, the respondent was to seek promotion against seven vacancies of Multan Zone while the appellant was to seek promotion against six vacancies of Lahore Zone. Those eligible in their respective zones were considered. The Public Service Commission cleared the respondent for promotion and he was regularly promoted as from 30th June, 1970 on the recommendation of the Public Service Commission. The Public Service Commission could not till then finalize the case of the appellant for promotion. Disintegration of the Province took place. The matter was again taken up by the Punjab Public Service Commission and it did not recommend the appellant for promotion. An effort was made by the Government to have the advice of the Public Service Commission reconsidered but the Public Service Commission did not oblige the Government. The Government then took up the case of the appellant for promotion by overruling the advice of the Public Service Commission, but that too was not done.
' Ultimately on the recommendation of the Selection Board which had then substituted the Public Service Commission, the appellant was regularly promoted on 4-5-1976. By an Order/Notification dated 12-5-1980, he was confirmed from 18-1-1974, while the respondent was confirmed from 6-6- 1975. From 1970 onwards various seniority lists of Officers in Grade-18 had been issued and in the same the appellant was placed senior to the respondent. Ultimately, against one of the seniority lists, the last one, the respondent represented to the Department and by an order passed by the Secretary, respondent was declared senior to the appellant. The appellant's representation to the Governor did not succeed. He, therefore, approached the Service Tribunal for relief.
3. Before the Tribunal the appellant mainly relied on Explanation III contained in Rule 7 of the West Pakistan Co-operative Service (Class I) (Men's Section) Rules, 1963 which provided that "a junior officer appointed to a higher grade shall be deemed to have superseded a senior officer only if both the junior and the senior officers were considered for the higher grade and the junior officer was appointed in preference to the senior officer". According to the appellant, when respondent was promoted, the appellant was not in competition with him because of the zonal allocation of the promotion posts. Hence the cases of the two were not considered together nor the appellant ever superseded the respondent. Both having been promoted to the next higher grade, the appellant was to regain and maintain his seniority of the lower grade.'
4. The Service Tribunal examined at great length the factual background of the case and recorded the following conclusions which are reproduced in the very words used by the Tribunal:-- "(i) Since under the West Pakistan Co-operative Service (Class I) Rules, 1963, approval/clearance of the West Pakistan Public Service Commission was a precondition for promotion to the rank of Deputy Registrar, therefore, in accordance with the cycle system in vogue cases of the Assistant Registrars considered eligible and suitable for promotion were referred to then on 4-4-1970. From Milian Regional sub-cadre, besides others, the name of Hamid Ahmad, respondent No, 3, was also recommended for regular promotion to Grade 18 post of Deputy Registrar. Accordingly, the names of recommendees of other regional sub-cadres were also sent up to the West Pakistan Public Service Commission for approval. As it is, the name of the appellant did not find place in the list of recommendees from Lahore regional sub-cadre for the simple reason that the quota assigned to Lahore Region according to cycle system was exhausted with the name of Mr. Faseeh-ud-Din Khan, an Officer next above the appellant.
(ii) The regular promotion of respondent No, 3 as Deputy Registrar was made in the first cycle of 25 posts against clear permanent vacancy occurring on 1-1-1967 and was duly notified on 25-8-1970.
In this manner the respondent No, 3 had been enjoying regular promotion to Grade 18 since 30-6- 1970, which being the date on which the proposal of the Government was approved by the Commission. This was exactly in accordance with Rule 5(2) of the West Pakistan Co-operative Service, (Class I) Rules, 1963.
(iii) While declaring certain officers suitable for promotion, they refused to approve the case of the appellant for regular promotion as. Deputy Registrar on the basis of his unsatisfactory service record. He was, therefore, not promoted whereas some of the approved recommendees got their promotion on regular promotion as Deputy Registrar on the basis of (his) appellant's unsatisfactory service record. He was, therefore, not promoted whereas some of the approved recommendees got their promotion on regular basis to Grade 18 as Dy. Registrars. In this manner we are fully satisfied that the appellant did not suffer due to the failings of the Departmental officials.
(iv) ...The Secretariat Officials at their own level did recommend the case of the appellant but the Public Service Commission reiterated their earlier advice and finally informed the Administrative Department on 5-7-1972, that they had carefully considered the recommendations of the Government as well as the contents of the representation of the appellant and that the Commission was unable to change their advice as contained in their letter dated 16-5-1972.
(v) The Provincial Selection Board approved his promotion vide letter dated 28-4-1976. In view of the said notification dated 4-5-1976, the appellant was promoted as Deputy Registrar, Co- operative Societies on regular basis."
' The appeal of the appellant before the Service Tribunal claiming seniority over respondent was on these findings dismissed.
5. At the hearing of the appeal, the Co-operative Service Rules, 1963 alongwith the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and section 8 of the Punjab Civil Servants Act came up for consideration. The main stand of the case of the appellant throughout was the Explanations to Rule 7 of the West Pakistan Co-operative Service (Class I) Rules, 1963 and the Explanations attaching to Rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, both prescribing that a junior appointed to a higher grade shall be deemed to have superseded his senior only if both the junior and senior were considered for the higher grade and the junior was appointed in preference to the senior were of avail. The two learned counsel have exchanged written arguments, as at the hearing neither their preparation nor the assistance rendered by them was satisfactory and complete.
6. The promotion of respondent as Deputy Registrar on 30th June, 1970 had taken place in strict compliance with the Co-operative Service Rules then in vogue. By all standards, his promotion was in accordance with the Rules. None, who was eligible to be considered, was omitted. The promotion vacancy being zonal, the appellant could not compete for it with respondent and the Public Service Commission having recommended the respondent, with that regular appointment of respondent in 1970, certain rights accrued in his favour. These were protected when the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 came into force on 24th August, 1974. Rule 8 sub-rule (3) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, provides as hereunder:-- "Notwithstanding the provisions of this rule, the seniority lists already prepared in accordance with the rules applicable immediately before the commencement of these rules shall be construed as seniority lists for the respective new grades in respect of persons already in service and amendments therein shall continue to be made in accordance with those rules to settle inter se seniority disputes among them."
7. As to what was the advantage that the respondent gained in the matter of seniority under the Co-operative Service. Rules in spite of such Explanation being therein, also has been considered at great length by this Court in Civil Appeal No, 376 of 1988 (Dr. Naseer Mahmood Akhtar v. Dr. Mahtnood Ali Malik and another) and Civil Appeal No, 377 of 1988 (Government of the Punjab through Secretary. Health Department v. Dr. Mahmood All Malik and and another) decided on 7-4- 1990, the service rules on the material point being exactly the same. The material part of the judgment delivered in those appeals, relevant to this case, is as hereunder:-- "The quesion that arises in these cases is whether a senior who is for reason of qualifications or length of service or for any other reason ineligible to be considered at all for promotion, will regain his seniority against his junior who is otherwise eligible and qualified and is promoted when the permanent vacancy occurs and continues in it. Explanation III reproduced above which contains a deeming clause, presupposes the availability of the senior officer to he considered alongwith junior officer for promotion. If the very eligibility of such an officer to be so considered does not exist, there is no question of his being considered or benefiting from this clause because in any case a person who is ineligible for promotion has to stand at a greater disadvantage than a person who is eligible for promotion but cannot match his suitability for the job. The interpretation given to the rule by the Tribunal makes the entire rule unworkable. If an ineligible and an unqualified senior is to regain on promotion his seniority of the lower grade against the earlier promoted junior, then the seniority of two such promotees cannot be matched with the direct recruits at all because either the seniority of both the promotees against the direct recruits will be depressed or the seniority of the direct recruits would get depressed by a junior ineligible, unqualified officer who would be gaining against them seniority from the date when he was not so qualified or eligible. The Explanation III is a protective provision preserving the interest of those who are deprived of a fair consideration at the time when they had a right to be considered. It is not a provision rewarding those who are ineligible and unqualified to be considered for promotion against those who are eligible and qualified."
8. The regular promotion of the appellant having taken place in 1976, it is not directly the Co- operative Service Rules of the pre-disintegration period which would apply to him as in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, an important change has taken place in so far as Explanation III of Rule 8 of these Rules has been made subordinate to Rule 14. It is the pre-eminence of Rule 14 and the subordination of Explanation III that makes these rules consistent with section 7(2) of the Punjab Civil Servants Act. If Rule 14 is not given the position of pre-eminence over Explanation III, Explanation III would be ultra vires subsection (2) of section 7 of the Punjab Civil Servants Act.
9. The learned counsel for the appellant in very elaborate written arguments has attempted to limit the scope of subsection (2) of section 7 of the Punjab Civil Servants Act by making scope of enacting portion co-extensive with the proviso. Surprisingly, the case-law cited in support of the proposition, for example the following cases cited by him specifically mentioned that proviso contains or covers only a part of the scope of the enacting portion:
(i) In Cambatta & Co. Ltd. v. Commissioner of Income-tax Bombay City (54 Bom. LR 202: 1952 Bom.
29), the object of proviso has been quoted as hereunder:-- "The object of the proviso is to carve out from the main section a class or category to which the main section does not apply; and in so carving out the Court has always to bear in mind what is the class referred to in the main section and must also remember that the carving out intended by the proviso is from the particular class dealt with by the main section and from no other class."
(ii) In case of Mst. Alhamdi Begum v. National Bank of Pakistan PLD 1976 Kar. 723, this Court held as hereunder:- "A proviso is not to be interpreted so as to have greater effect than strict construction of the proviso renders necessary."
10. According to our interpretation of the Co-operative Service Rules applicable, when respondent was promoted, the appellant being ineligible for being considered alongwith him, the Explanation relied upon by the appellant did not get attracted. In 1976, when he was promoted regularly, the Punjab Civil Servants Act (section 6) and the Civil Servants (Appointment and Conditions of Service) Rules, 1974 were in force and under none of these the appellant gained an advantage over respondent. Hence the decision of the Tribunal was correct.
11. In his Memorandum of Appeal and documentations, the appellant has invoked more than one principle for protecting his promotion to Grade 19, his earlier date of confirmation and his persistent placement at a higher seniority in Grade 18 from 1970 to 1980. In the first place, it has been contended that the appellant was always shown senior to the respondent No, 3 and his seniority was reckoned from the date of his ad-hoc appointment and the respondent never objected to it.
He should, therefore, be deemed to be estopped from challenging that list. It is not the case of the appellant that the respondent had challenged an old list but that he should be stopped from challenging the last one. Where seniority lists are repeatedly prepared, then the challenge to the last seniority list cannot be taken back to the first seniority list where the mistake or the illegality originated. The very fact that a fresh seniority list had appeared justified the respondent to represent against it to the departmental authorities. Departmental authorities are charged with an abiding duty to manage their affairs at all stages in accordance with law applicable to the individuals and to the service. Their power of rectification is not limited by the act of the parties. The rectification had been done by the departmental authorities. The appellant had brought the dispute before the Tribunal and the Tribunal could not with respect to the departmental authorities enforce the period of limitation or abridge their power of rectification.
12. The other ground taken up by the appellant was that he had been confirmed earlier from an earlier date as against the respondent. That is true, but his confirmation had followed the same illegality as had been committed in the matter of fixation of seniority. With the correction of the seniority, the correction in the confirmation date could also follow.
13. The promotion of the appellant in Grade 19 was not an issue before the Tribunal nor it has been made before us. Therefore, simply because he was promoted to Grade 19 does not mean that he necessarily became senior in Grade 18. The Grade 18 seniority had to be fixed on its own principles and not .On the basis of subsequent attainments of the Civil servants.
14. Another argument advanced in the written memorandum of petition for leave to appeal was that the recommendations of the Public Service Commission are directory in nature. The Government could overrule it and that the Government should he taken to have overruled it by confirming him from a date earlier to that of the respondent and promoting him to Grade 19 earlier than the respondent. The Tribunal has taken great pains to demonstrate that when the appellant was due for promotion to Grade 18, the Public Service Commission did not consider him suitable for it and made a recommendation to that effect. The Public Service Commission was asked to reconsider the recommendation on fresh material. It reconsidered it but declined to interfere with the recommendation earlier made. There was a suggestion made that the Governor should overrule the advice of the Public Service Commission but the same was not done. In these circumstances it would be unfair to infer the overruling of the recommendation of the Public Service Commission from the mere continuance of the appellant in Grade 18 in spite of such adverse recommendations coming from the Public Service Commission.
15. We find no merit in this appeal and the same is dismissed.