1. ORDER S. A. Mahmood (Chairman).--By this appeal under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, Mr. A. W. Khokhar, appellant, who is Head Teacher Trainer, prays that the impugned order contained in notifications dated 9-8-71 and 6*7-72 may be declared to be illegal, unlawful and ultra vires, and be set aside, and the appellant may be declared senior to M/s. Mehboob Elahi and Mohammad Aslam Mir, respondents 2 and 3. He also prays for award of costs. Mr. A. W. Khokhar appears along with Mr. Ahmad Waheed Khan, Advocate.
2. Mr. Sadiq Hayat Lodhi, Special Government Pleader, appears for the Government of the Punjab in the Education Department respondent No. 1. Mr. Khalid Javed, Advocate appears on behalf of M/s. Mehboob Elahi and Mohammad Aslam Mir, respondents Nos. 2 and 3. On 9-8-71, the impugned seniority list of officers working in the standard Senior Class I Scale of pay in Government Poly.
3. Institutes was notified on tentative basis. In this seniority list respondents 2 and 3 were shown at Serial Nos. 4 and 5 while the appellant was shown at Serial No. 7. The appellant has not chosen to Impugn the seniority of Mr. Mohd. Afzal Khan Niazi, who appears at Serial No. 6. He does not dispute his seniority, he being a direct recruit recruited through the P. S. C. (Public Service Commission) in Senior Class I Scale. The appellant was originally appointed as Junior Lecturer in the Technical Institution at Sialkot, which was a non-gazetted post. He took over on 19-1-59. He was initially recruited as Instructor through the P. S. C. and took over on 9 2-60. This was a post carrying Class II scale of pay. He was then appointed as Senior Instructor in the Pay Scale of Class I as direct recruit through the P. S, C. He took over on 2-7-62. He was then promoted on ad hoc basis as Head of Department Auto and Diesel, and took over on 9-1-65. This was ad hoc appointment until a selectee of P. S. C. was appointed. In consultation with the Public Service Commls- sion he was appointed as Head of Department w. e. f. 24-5-66 against a temporary vacancy likely to be made permanent. He took over on 24-5-66 and continues as Head of Department. The post against which he was appointed has yet to be made permanent, and he has not yet been confirmed.
4. Therefore, the appellant is entitled to count his date of continuous appointment against a temporary post from 24-5-66 under rule 9 of the West Pakistan Technical Education Department (Gazetted Posts) Recruitment Rules, 1966. Mr. Mehboob Elahl, respondent No. 2, was directly appointed as Senior Instructor in the pay scale of Junior Class I from 1-8-60. On 28*11-63 he was promoted as Teacher Trainer in the Pay Scale of Class 1 (Senior) against an available post of Head Teacher Trainer, which was then lying vacant. His appointment was made on a stop-gap basis for a period of 6 months until appointment of a candidate selected by the P. S. C. was made. This was a purely temporary and stop-gap arrangement. He took over on 29- 11-63. He was departmentally promoted a9 Teacher Trainer on regular basis by order dated 5-5-69 w. e. f. 1-1-68 on probation for one year against a substantive post. His appointment was made under the Rules of 1966 mentioned above. His date of promotion assigned to him was 1-1-68. He represented to the Government for being granted a date of promotion retrospectively from 29-11-63 on the ground that he had been functioning ln that post from that date, but the Government agreed to give him pro forma promotion from 1-8-64 by the notification date 9-8-71 expressly for the purpose of his seniority ln rank. This date was granted to him on the ground that he became eligible for promotion to Senior Class I pay scale from that date under the Rules of 1964. His appointment as H. Teacher Trainer with special pay of Rs. 110 w.e.f. 17-1-69 was notified on 24-11-69. From 13-3-72, he has been posted as Vice-Principal, Poly. Institute, Rawalpindi, which entitles him to a special pay of Rs.
110. He has been placed senior to the appellant on the basis of date of promotion to Senior Class I pay scale w. e. f. 1-8-64 which is earlier than the date of appointment of the appellant to that class. Mr. Mohammad Aslam Mir, respondent No. 3 was appointed as Senior Instructor, Electrical Technology, through the P. S. C. as a direct recruit, and he took over on 2-5-61. This was an appointment in Junior Class I pay scale against a substantive vacancy. By notification of 28-6-67, he was promoted as Head of Department Electrical, in the pay scale of Senior Class I against a permanent post of Head of Department sanctioned for the Poly. Technical Institute at Hyderabad, but was posted at the Poly. Institute at Rawalpindi. He took over on 29-6-67. On 28-10 67 he represented to Government for grant of (sic) the Government dated 9-8-71. he was assigned that date of appointment as Head of Department Electrical, from 13-3-72, he is acting Principal, Poly. Institute at Lelah in his own pay scale. He has not yet been regularly promoted to that post. The main contention of the learned counsel for the appellant is that the dates of pro forma promotion assigned to respondents 2 and 3 could not legally be assigned to them by the Government since no vacancy was available against which they could be appointed with retrospective effect. Even ignoring for the sake of argument, the proforma promotion granted to respondents 2 and 3, the respondents rema n senior to the appellant since they were appointed against substantive vacancies while the A. W. Khokhar v. Govt, of Pb. (S. A. Mahmood, Chairman) appellant was appointed against a temporary vacancy. This is the result which flows from clause (c) of sub-rule
(2) of rule 9 of the W. Pak. Technical Education Department (Gazetted Posts) Recruitment Rules, 1966, which provides that seniority ln the various grades of posts of holders thereof appointed by Initial recruitment vis-a-vis those appointed otherwise shall be determined ln case the officer appointed otherwise is appointed against a substantive vacancy, and the officer appointed by initial recruitment is appointed against a temporary vacancy, the officer appointed otherwise shall rank senior to the officer appointed by initial recruitment. There is, therefore, no force in the claim of the appellant to seniority over respondents 2 and 3, even on the dates of their regular appointment to pay- scale of Class I (Senior). We have examined the question of availability of posts against which respondents 2 and 3 were retrospectively promoted. We find from the letter of the Government dated 18-3-69 addressed to the P. S. C. that there were 8 vacancies of the Head of Department in Electrical Technology, two of which occurred on 1-7-62, one on 7-10-63, one on 27-2- 64, two on 1-7-64 and one each on 1-7-65 and 1-7-67. Against one of these vacancies Mr. Mohammad Aslam Mir, respondent No. 3 could have been and was promoted. It is stated in the comments offered by respondent No. 1 that he was granted pro forma promotion against an available vacancy in Electrical Technology. As there was delay in promoting respondent No. 3, to deny seniority to him with retrospective effect from the date from which vacancies were available would have been inequity and injustice to him and would have caused hardship. In respect of the pro forma promotion granted to respondent 2, two vacancies occurred on 11-11-58 and 11-4-62 as Teacher Trainer, against one of which posts the respondent 2 was promoted retros* pjctively ln order to avoid hardship and inequity to him. Thus we find no force in the contention that retrospective date of promotion could not have been granted to respondents 2 and 3. It has been held by the Supreme Court in PLD 1962 SC 367 that Government has admitted power to give permanent appointment retrospectively. The dates of promotion retrospectively granted to the respondents 2 and 3 clearly make them senior to the appellant. A preliminary objection has been raised by the learned counsel for respondents that the present appeal is barred by time in so far as it was not Instituted within three months of the impugned order of the seniority under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970. The seniority list by which seniority of the parties was assigned to the parties was notified on 9-8-71 but an appeal to this Tribunal was not instituted within three months of the date. The position taken up on behalf of the appellant is that he had filed two representations to the Government against the fixation of seniority ln the seniority list and, as such, he had a cause of action to file this appeal against the order of 6-7-62, by which his appeal was rejected by the Government. In this context, it has been pointed out by the learned counsel for respondents that a representation or appeal to the Government was not made by the appellant until 24-2-72. The alternative remedy was not thus diligently pursued and time cannot be extended in the case of appellant when there was such an inordinate delay ln pursuing such remedy. I am inclined to give effect to this objection and to hold that the appeal in the present circumstances of the case is barred by time and time for an appeal to this Tribunal cannot be extended on the ground that he had appealed to the Government after six months of the impugned order. We usually allow time taken in pursuing the alternative remedy of an appeal to the Government in cases of seniority, but time is extended in these cases if the alternative remedy is diligently pursued. This is not the case here since the appeal is prima facie barred by time, and the application of condonation of delay supported by an affidavit made by the appellant has no merit. In the above circumstances, the appeal by the appellant is dismissed as having no/orce, but we leave the parties to bear their own cost. The security deposited by the appellant shall be refunded to him.