DECISION ' This is an appeal against the order, dated 15-4-1990, passed by the learned Presiding Officer, Sindh Labour Court No, VII at Sukkur.
2. The brief facts of the case which appear to be more or less admitted are that the appellant was appointed as Signaller Grade-I by Pakistan Railways on 2-8-1968. He was selected for qualifying course for promotion in the cadre of Station Masters which he successfully passed in the year 1974.
As Signallet, he was confirmed prior to respondents Nos. 4 to 60, who also are said to have initially joined as Signallers. The appellant was, however, granted seniority in the Station Master's Group not from the date of his original confirmation, but, from the date of appointment in the Station Master's Group and, therefore, was placed junior to respondents Nos. 4 to 60. He filed an appeal for which notices were issued to the respondents. The seniority of the appellant was then fixed at Serial No, 259-C, vide letter, dated 30-1-1985. On the basis of this seniority, the appellant was nominated for P-2 Course prescribed for promotion in the cadre of the Station Masters. The nomination was, however, withdrawn by respondent No,3, but, the appellant obtained Stay Order from the Civil Court and completed the course and then joined his duties in the capacity of Station Master relief list on 4-10-1985. On the representation of respondent No, 20 with regard to refixation of seniority of the appellant, after hearing the appellant, the Divisional Personnel Officer, Sukkur, by order, dated 21-11- 1985 revised the seniority of the appellant and allotted him his original seniority. After service of the grievance notice upon the respondents Nos. 1 to 3, the appellant filed his grievance petition which was dismissed by the learned Presiding Officer, vide order, dated 10-11-1988 on the ground that the appellant was not a workman and the right of seniority was not a guaranteed right. In appeal this Tribunal vide orders, dated 31-5-1989, set aside the aforesaid decision of the learned Labour Court and remanded the case back to the learned Labour Court for decision of the aforesaid seniority of the appellant on merits.
3. The respondents Nos. 1 to 3 are official respondents. They had resisted the grievance application before the learned Labour Court and have also contested the appeal before this Tribunal. Out of respondents Nos. 4 to 60, only respondent No, 20 had resisted the grievance petition and also contested the appeal in this Tribunal. The respondents Nos. 1 to 3 contend that they had a right to revise the seniority of the appellant and that they had rightly fixed the seniority, vide the impugned order. The respondent No, 20, however, contends that he was selected for the post of Station Master Group Students and had completed 10 months course on 1-7-1968 and was confirmed as A.S.M.
Earlier to the appellant. He also claims to have been promoted as Assistant Station Master Grade-I and Assistant Station Master Grade-II and had qualified P-2 Course on 8-11-1984. He claims the seniority over the appellant on the basis of his earlier appointment and confirmation as Assistant Station Master.
4. I have heard Mr. MA. Rasheed, the learned Advocate for the appellant and Mr. Shabbir Awan, the learned Advocate for respondents Nos. 1 to 3 and Mr. Nizamuddin Baloch, the learned Advocate for respondent No, 20 and have also gone through the record and proceedings of the case. Other respondents are ex parte.
5. There appears to be no dispute about the fact that the appellant was confirmed as Signaller earlier to the non-official respondents and that he was selected for qualifying course as A.S.M.
Much later than the other respondents and further that he was confirmed as A.S.M. Much later than the contesting respondent. However, Mr. M.A. Rasheed, the learned Advocate for the appellant has relied upon certain circulars and rules of Pakistan Railways with regard to fixation of inter se seniority. Mr. M.A. Rasheed has relied upon the Rule 601 of section 6 of the Pakistan Railways Personnel Manual, Volume I which deals with the seniority. The relevant sub-rules (6) and (7) are reproduced as under:-- "(6) The seniority of Signallers (other than Station Masters Group Students) promoted as Assistant Station Masters shall be fixed in accordance with the order of merit prepared at the Walton Training School irrespective of the pay drawn as Signallers.
(7) When an employee is transferred in the interest of service from one post to another carrying the same pay or the same time-scale of pay, his seniority in the new grade or class shall be determined from the date of confirmation in original post."
' The contention of Mr. MA. Rasheed is that because of shortage of A.S.Ms., the appellant was selected for qualifying course of Station Master in the interest of service and, therefore, his seniority is to be fixed in accordance with Rule 7 and his seniority in the new class had to be determined from the date of confirmation in original post. Messrs Shabbir Awan and Nizamuddin Baloch, the learned Advocate, on the other hand contend that Rule 6 would be relevant as it relates to Signallers promoted as A.S.M. And the seniority of Station Master's Group Students would not be affected.
6. It is not disputed that the pay or time-scale of pay of Signallers and A.S.Ms. Is same. There is no evidence on record to show that the appellant had been transferred or selected for qualifying course of Station Master on his request. It is, therefore, vehemently contended by Mr. MA. Rasheed, the learned Advocate for the appellant that sub-rule (7) which is independent of sub-rule (6) would be applicable for determining the inter se seniority of the appellant vis-a-vis the respondents. He has also relied upon the Notification No,847-E/72- 11 (E.VI), dated 30-9-1959. The relevant portion of which reads, as under:- "According to the instructions issued under this office letter No, -847- E/48, dated 9-3-1944, those who were recruited and trained as temporary Signallers in the first instance and were sent up for qualifying in course T-1-A subsequently, should reckon their seniority vis-a-vis Station Master Group Students from the date of their recruitment as Signallers. This does not however apply in the case of those who were recruited as Station Master Group Students, but failed to fully qualify in Course T-1 and were appointed as Signallers. This instance and those who qualified naturally suppressed them, such Signaller will count their seniority vis-a-vis Station Master Group Students from the date of qualifying in Course T-1-A."
7. This Notification is reproduced on the back of the letter of Personnel Officer, Pakistan Railways, dated 23-5-1984 which is Annexure 'B' with the grievance application under which a notice was given to the respondents to show cause as to why, the seniority of the appellant should not be fixed at serial No,259-C in accordance with the aforementioned Notification. After hearing the objections, the seniority of the appellant and 2 others, namely, Muhammad Younus and Ahsan Ali Zaidi was re-fixed at Serial Nos. 259-C, 259-A and 259-B respectively vide orders, dated 30-1-1985.
8. The Notification, dated 30-9-1959 appears to be criteria for fixing the seniority of those Signallers who were sent for qualifying in Course T-1-A subsequently after their appointments as Signallers.
The circular, dated 30-94959 referred to above was in fact repetition of the instructions issued by the General. Manager, Railways, under letter No, 8417-E/48, dated 9-3-1944 which is referred to in the aforesaid Circular. Sub-rules (6) and (7) of Rule 601 referred to above were issued under Circular No, 1 of 1927. These sub-rules appear to have been interpreted or superseded by the General Manager, Railways, vide his Circular of 1944 which was re-affirmed by Circular, dated 30- 9-1959. Sub-rule (6) relates to the fixation of seniority of Signallers in general but does not distinguish between the Signallers who were promoted as Assistant Station Masters at their own request or in the interest of service, whereas rule (7) specifically deals with the employees who are transferred in the interest of service from one service to another getting the same pay scale. The instructions contained in the. Circulars of the years 1944 and 1959 have been issued after reading these 2 sub-rules together. The interpretation appears to be in force since 1944 and on the basis of this interpretation of the rules the seniority of the appellant was fixed vide orders, dated 30-1-1985 after hearing objections of the affected persons. This Notification appears to have been acted upon as the appellant was selected for higher training for further promotion vide order, dated 4-2- 1985 which is Annexure 'E' to the grievance application. No doubt this order was further revised by order, dated 7-2-1985 in pursuance of the order of the Divisional Superintendent, Sukkur, dated 7-2- 1985 suspending the seniority given to the appellant under letter, dated 30-1-1985, but, the appellant was able to complete the Course after obtaining Stay Order from the Civil Court. Even otherwise by issuance of the orders, dated 4-2-1985, the orders fixing the seniority on 30-1-1985 was acted upon. As such, a question arises as to whether the same authority has got the powers to rescind his previous orders. The seniority was fixed after hearing the objections of the persons, affected thereby. It may also be mentioned that the order,. Dated 30-1-1985 was passed on the basis of the order of the General Manager (Personnel), Lahore dated 16-1-1985. This order was withdrawn by the General Manager on 20-2-1985 whereby the seniority of the appellant was ordered to be fixed in accordance from the date of passing of a Course as per Rule 601(6) of Personnel Manual. Prior to this order, the Divisional Superintendent did not have powers to suspend the seniority of the appellant vide order, dated 7-2-1985, as the order fixing seniority was issued on the instructions of the General Manager. The order of the General Manager, dated 16-1-1985 read with the orders of the Divisional Superintendent had been acted upon and the appellant was selected for training in P-2 Course for further promotion. Under section 20 of the West Pakistan General Clauses Act, 1956, a power to issue order includes to a power to amend or rescind the order. In the case of Shahbaz v. Crown, reported in PLD 1956 FC 46, it was held that-- "Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel."
' In the case of Lt.-Col. G.D. Bhattacharya v. State, reported in PLD 1963 Dacca 422: the Full Bench of erstwhile High Court of East Pakistan held that the crux of the matter is whether the order has been acted upon i,e, whether authority exercising such power has done that which is necessary for it to make the order effective. When such a step has been taken the order was acted upon thereby conferring a right upon the prisoner. Therefore, the subsequent order of cancellation have no legal effect whatsoever. In the case of Farid Khan v. State reported in PLD 1965 Pesh. 31; the Full Bench of High Court at Peshawar had held that the "test for determining whether there is locus poenitentiae or not is to ascertain whether a decisive step has been taken in pursuance of the earlier order which is sought to be recalled or rescinded".
9. The decision of the Dacca High Court in the abovementioned case of Bhattacharya came before the Hon'ble Supreme Court of Pakistan and the decision of the Supreme Court is reported in PLD 1964 SC 503. The Full Bench of the Supreme Court rejected the plea raised by the Advocate- General that until the actual date of release, as fixed by the order of remission, it had not become effective. Their Lordships expressed the view that it was immaterial whether the prisoner had been actually released or not and that 'the important consideration was that the petitioner had acquired a right to claim by the benefit of the remission granted by the Provincial Government".
10. In the instant case the order selecting the appellant to undergo P-2 Course for further promotion was based on the decision fixing the seniority as per order, dated 30-1-1959, which was passed by the competent Authority after the parties affected had been heard. The order of the General Manager withdrawing the above seniority on 20-2-1985 was apparently passed without hearing the appellant which is thus void being against the principles of natural justice. The last order after giving show-cause notice to the appellant was passed by the Divisional Personnel Officer on 21-11- 1985 which is Annexure 'P' to the grievance application reverting him to his original seniority would be illegal as it is passed by the authority who is junior to the authority who accorded/sanctioned the fixation of seniority under order, dated 16-1-1985 in pursuance of which, order, dated 30-1-1985 was passed by the Divisional Superintendent, Pakistan Railways. This order dated 21-11-1985 does not appear to have been passed by the competent Authority who is General Manager or Divisional Superintendent and also has been passed after decisive step had been taken after fixation of the seniority vide order, dated 30-1-1985, as pointed above. Even the competent Authority, therefore, could not rescind its previous orders. The only course left to the respondent aggrieved by the order was to file appeal against the order, dated 30-1-1985 read with the order of General Manager, dated 16-1-1985 to the higher competent Authority under the rules and not to the same authority or authority junior to him.
11. The order, dated 21-11-1985 revising the seniority of the appellant also suffers from another illegality. It may be pointed that by a letter, dated 20-2-1985, Annexure K-1, the General Manager had ordered that the seniority of the appellant be fixed in accordance with Rule 601(6) of the Personnel Manual. A notice to the appellant was issued vide Annexure K-1, dated 5-3-1985 in which also the aforesaid letter of General Manager was referred to. This clearly shows that the order revising the seniority was passed by the General Manager without hearing the appellant which as pointed above would be illegal and void being against the principles of natural justice. In view of this letter of the General Manager, Divisional Personnel Officer of Pakistan Railways, Sukkur after receipt of the reply to show cause from the appellant, had no other alternative but to pass the order, dated 21-11-1985 in the terms of the letter of General Manager, dated 20-2-1985. This order, therefore, cannot be considered as a fair order passed on merits apart from the fact that it was suffering from other illegalities and infirmities as pointed above.
12. In view of the above discussion, the appeal of the appellant is allowed and he is restored to his original seniority fixed as per order, dated 30-1-1985 read I C with order of General Manager of