1. ORDER S. A. Mahmood (Chairman).--By this appeal under section 8(1) of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970 Mr. Ahmad Nawaz Qureshl, appellant, pravs that the order of the Director, Health Services, Punjab, respondent No. 1, dated 13-8-1971, be set aside, in so far as the appellant has been shown junior to Mian Muhammad Farooq, respondent No. 2 and that he (appellant) may be directed to be shown senior to respondent 2, as he has longer continued service as Stenographer than the respondent 2. The appellant appears in person. Mr. Mahammad Usman, Administrative Officer appears on behalf of the Director, Health Services, respondent No. 1, Mian Mahammad Farooq respondent No. 2 appears along with Mr. Muhammad Nazar Khan, Advocate. It may be made clear here that the appellant wants seniority ln the common seniority list directed to be prepared under the note under item (3) of the Appendix to the West Pakistan Health Department Ministerial Establishment (Regional) Recruitment Rules, 1964, which were promulgated on 28-9-1964, and required the preparation of a common seniority list of Asslstants/Stenographers for the purpose of their promotion to the rank of Superintendent. This is not thus a seniority list in rank or grade. The appellant was appointed as a Stenographer ln a temporary vacancy in the Nishtar Medical College, Multan on 10-8-1953. The post to which he was appointed was advertised ln 1956 and it was stated therein that it was temporary but was likely to become permanent in due course. The incumbent was to be on the general strength of Stenographers of the Department of Health Services of West Pakistan, and was liable to transfer to any similar post in the exigencies of service. Thus lt is claimed by the appellant that the post to which he was appointed and potted waa on the general strength of Stenographers of the Department of Health Services. The appellant was transferred Jp the Health Directorate a{ Lahore on 22-2-1956, and he become Stenographer to the Dlreotor of Health Services. On 20-9-1958, he was temporarily transferred as Stenographer in the office of the Health Adviser, Government of West Pakistan, by order of the Secretary, Health Department, West Pakistan, but his lien was retained in the Health Directorate. On his application to join the Settlement Department, he was allowed to join that department from 4-6-1959. He remained in that department up to 15-5-1960 when he was declared surplus there. The conditions on which was accepted by the Settlement Department were not, however, settled and the Department refused to contribute towards his pension and leave salary. Before his reversion to the Health Department, he was confirmed by the Health Department in the office of the Administrator, Nishter Medical College, Multan, by order dated 14-9-1959, w.e.f. 1-3-1953. On 6-7-1970, he was ordered to join the office of the Administrator, Nishtar Medical College, Multan, in place of Mr. Manzoor Ahmad Parvaiz, Stenographer, who stood transferred, but this order was cancelled by the Director of'Health Services on 12-7-1970 and the appellant was directed to report instead to the Joint Organization of Sanitary Engineers at once.
2. This is stated to be a post under the Health Directorate and a temporary post. He was posted against a temporary post ln that organization and it was stated in the order that his seniority would be fixed from the date he joined the Health Directorate after his reversion from the Settlement Department i.e. from 16-5-1960. The appellant represented against the fixation of his seniority from 16-5-1960 on 15-7-1970, but was not afforded any relief. Then the appellant applied to the West Pakistan Rangers for being accepted as a Stenographer. The Rangers having no objection to accepting him as a Stenographer, he took over with the Rangers on 19-6-1961. He remained with the Rangers up to 16-7-1968. He reported back to the Health Department at the end of July 1968, and was posted in the office of Administrator, Nishtar Medical College, Multan. While the appellant was on deputation with the West Pakistan Rangers, the Department of Health Services was re- organized and regional offices were set up in West Pakistan. The officers serving the department were allocated to various regions, but the appellant was not so allocated, may be because he was not then serving in the department. On his reversion to the Health Department ln July 1968, the Secretary Heath Department allocated him to the Lahore Region on 1-8-1968, but the Director of Health Services was not willing to accept him, and made a back reference to have the orders of the Secretary, Health modified. On 27-11-1968, the decision to allocate him in the Lahore Region in the Office of the Health Directorate was reiterated. It was not until a meeting took place ln the Office of the Secretary Health in February 1969, that the appellant was accepted ln the Lahore Directorate for service as Stenographer. He was then posted ln the K. E. Medical College, Lahore, where he joined on 22-2-1969. The appellant requested bis posting in the office of the Health Directorate instead of the K. E. Medical College, Lahore, but his prayer was not accepted. It appears that the Directorate of Health Services had taken up the matter of allocation of the appellant to the Lahore Directorate with the Secretary, Health Department, objecting to his allocation to the Lahore Region. On 25-8- 1970, the Secretary Health conveyed an order reversing the order of 1-8-1968 and 27-11-1968 and directed that as the appellant had a lien in the Nishtar Medical College, Multan, ho is transferred to Multan Region for posting against his substantive post, ln the copy to the Director of Health Services, Multan Region, it was further directed that his seniority should be .fixed ln the Directorate of Health Services, Multan, from 16-5-1960 from which date he was re-absorbed in the Directorate of Health Services, West Pakistan. The appellant felt aggrieved by this order and the direction that his seniority be determined w.e.f. 16-5-1960. He further complained of his name not being published amongst Stenographers in the latest list of seniority of Lahore Region as on 30-1-1971. He claimed that his name should figure at the proper place of seniority on the basis of date of continuous appointment as Stenographer, namely 10- 8-1953. He relied on the list of seniority of 1958 in which his name appeared on page 18 with the date of continuous appointment as Stenogra*# pher as 10-8-1953. Is , filed by the appellant and decided by us on 8-4-1971, we held that the appellant having been allocated to the Lahore Region, which included the office of the Director, Health Services, Lahore Region Lahore, his allocation to Multan Region could not be ordered. We thus found the appellant to have been allocated to the Lahore Region. As the appellant had not been shown in the seniority list issued with the Govenment's letter dated 15-6-1957, we directed that the seniority of the appellant may be first determined by the Government in accordance with the Rules. ln compliance with our orders in that case the Director, Health Services, Issued the impugned order dated 13-8-1971 showing the appellant junior to Mian Muhammad Farooq, respondent No. 2. The appellant was dissatisfied with this order, and made an application dated 19-8-1971 to us complaining that the competent authority had not complied with our order. He had even made an application to us on 15-7-1971 complaining that our order had not been complied with by the competent authority. On this application we had called for a report on 15-7-1971 whether our orders had been implemented. The competent authority reported to us that our orders had been implemented. In addition to the application dated 19-8-1971 made by the appellant, another application dated 30-8-1971 complaining that our orders had not been carried out was made. He made another application to the same effect dated 4-10-1971. On 18-1-1972 we made an order that as his seniority list has been prepared by the competent authority, the appellant may file an appeal against that order of seniority If he Is not satisfied with the fixation of seniority therein. On 21-2-1972 he filed an amended appeal accompanied by an application for condonation of delay.
3. Another application for condonation of delay dated 2-3-1972 was also filed. On 9-3-1972 we directed him to file an amended appeal along with an application for condonation of delay. He filed an affidavit in support of the delay in filing of a regular appeal against the order of seniority dated 13-8-1971. Notice in this appeal was issued to the respondent on 20- 3-1972. The appellant complains that his seniority has not been correctly fixed in accordance with the rales in so far as he has been shown junior to Mian Muhammad Farooq, respondent 2 and claims seniority over him on the ground that he became a Stenographer long before respondent 2 became an Assistant. The particulars of Mian Muhammad Farooq, respondent 2 are that he was recruited as a Junior Clerk on 1-6-1942 in the office of the Inspector General of Civil Hospitals, Punjab, Lahore, in which office he was promoted as a Seaior Clerk from 1-6-1944. He was further promoted as Assistant from 10-12- 1953 and was confirmed from 1-3-1955. From 1-3-1965 he was actually promoted as Superintendent, but on his representation he was granted pro forma promotion as Superintendent w.e.f. 1-6-1963 by the order dated 13-3-1972. The ground for according pro forma promotion to him was that if some officials from other Regions had not been transferred to merge into the Lahore Region he would have been promoted as Superintendent from 1-6-1963. Hence this pro forma promotion in the rank of Superintendent. The date of his seniority as Assistant for the purpose of common seniority list required to be prepared under the note to the Appendix is 10-12-1953. This date is subsequent to the date of appointment]of the appellant as Stenographer, which date is 10-8-1953. On the basis of the note to the Appendix read with rule 9 of the West Pakistan Health Department Ministerial Establishment (Regional) Recruitment Rules, 1964, the appellant is entitled to raak senior to respondent 2 in the common seniority list on the ground that his date of continuous appointment lt earlier than the date of continuous appointment of respondent 2 as Assistant. It is, however, contended on behalf of respondent 2 that the appellant cannot rank senior to respond dent No. 2 on the ground that the respondent had been confirmed as Assistant from 1- 3-1955 in the Lahore Region while the appellant became a member of this Region from 20-2-1956, when he was transferred to the office of the Director Health Services, West Pakistan on transfer from the Nishtar Medical College. In this connection emphasis is placed on the wards that a common seniority list had to be prepared *of the members of the establishment* and it Is contended that since the appellant was not a member of the Lahore Region he cannot count his seniority prior to 20-2-1956 in the Lahore Region. The argument is misconceived as service on regional basis came into existence on the re-organization of the Health Department in 1962 and it was in 1964 that the Regional Rules came into force. In 1962 or 1964 when the Regions came into existence and the Regional Rules came into force, the appellant was a member of the Lahore Region and, as such he was entitled to count his seniority on the basis of date of continuous appointment as Stenographer in Lahore Region. There is, therefore, no force in this contention raised on behalf of respondent 2. It is also contended on behalf of respondent 2 that as the present appeal against the impugned order dated 13-8-1971 was not filed until 21- 2-1973, the present appeal is barred by time. We cannot agree with this contention since two applications complaining against the impugned order were made on 19-8-1971 and 30-8-1971 and an appeal under section 8 of the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970 was filed before us on 4-10-1971. This appeal was within time from the date of the impagned order. It was in obedience to our orders dated 18-1-1972 that an amended appeal was filed by the appellant on 21- 2-1972. Even though this* appeal may be treated as beyond three months and thus barred by time, two applications for condonation of delay were filed by the appellant. It is apparent that the appellant was making diligent efforts to have the impugned orders set aside. In the circumstances of the case and in view of the grounds stated in the application for condonation of delay and an affidavit filed along with it, we cannot hold the present appeal to be barred by time. It has been contended on behalf of the respondent by reference to section 8(3) of the Ordinance that it enjoins dismissal of an appeal if lt is not filed within three months. This argument ignores the provision in lt of condonation of delay by the Tribunal where adequate grounds for condonation of delay are made out. We, therefore, hold, in the first instance, that the appeal is not barred by time, and in any case that there is sufficient reason for condona* tlon of the delay in the circumstances of the case. Another objection has been raised ln respect of the competency of the appeal. This objection is that as a security deposit has not been made by the appellant so far, the terms of rules 10, 11(3) and 12(5) have not been complied with. We did make an order in this appeal for deposit of security within one month on 20- 3-1972, subsection (3) of section 11 requires that a cash security for costs, and costs of service of notice on respondents, shall be deposited with the Registrar within the prescribed period.
4. Subsection (5) of section l2 directs that if within one month of the order of subsection (3) the deposit and costs are not deposited the appeal shall stand dismissed. It is argued that as the order was not complied with, and security for costs and process fee was not paid within one month, the appeal should stand dismissed. The security deposit as well as process fee for the service of the respondents does not appear to have reached the office of the Tribunal within one month. It was however, claimed before us by the appellant that he had sent a demand draft through Standard Bank, Khoski, in the sum of Rs. 105 towards security deposit and process fee but it appears to have been mislaid ln transit, and If the demand draft did not reach the office, the appellant cannot be blamed for lt. We have seen a duplicate of the demand draft dated the first week of April 1972 of which the original has been stated to have been forwarded to this Tribunal. In these circumstances, the appellant appears to have taken steps to comply with the orders, but the demand draft towards security deposit and process fee was mislaid during transit. We would not therefore dismiss this appeal on the ground of non-compliance with our orders under sub-rule (3) of rule 11.
5. Another objection raised on behalf of respondent 2 is that as Mr. Muhammad Saeed Chaudhry has been declared senior by us to Mr. A. N. Qureshi in decided on 8-3-1972 and respondent 2 Is senior to Mr. Muhammad Saeed Chaudhry the appellant cannot be declared senior to respondent 2, as he would thereby be gaining seniority over Mr. Muhammad Saeed Chaudhry. In the appeal by Mr. Muhammad Saeed Chaudhry, he did not Implead the respondent as a party, nor claimed seniority over him. He merely claimed seniority over the present appellant and he was held to be senior to him. Mr. Muhammad Saeed Chaudhry became a Stenographer from 6-9-1950. His date of continuous appointment is earlier than the date of continuous appointment of Mian Muhammad Farooq, respondent 2 as Assistant. Therefore, Mr. Muhammad Saeed Chaudhry had a good case for claiming seniority over Mian Muhammad Farooq also. The fact that he made an omission and did not claim seniority over Mr. Muhammad Farooq cannot deprive the present appellant of his right to seniority over Mian Muhammad Farooq ln a common seniority list of Assistants and Stenographers intended for the purpose of promotion to the rank of Superintendent under the note to item (3) of the Appendix. We, therefore, declare the present appellant senior to Mian Muhammad Farooq Ahmad Nawaz v. Director, Health Services, Pfl. (Bashir Ahmad Khan, Member) ln the combined seniority list Intended for promotion to the rank of Superintendent as they appear in that list. In the above context, it is argued on behalf of the respondent that since he has been awarded pro forma promotion w.e.f. 1-6-1963 by order dated 31-3-1972, his name does not have to appear in the combined seniority list to be prepared for the purpose of promotion to the rank of Superintendent under the note to item (3) of the Appendix which came into force on 28-9-1964 and should be ordered to be deleted from the list. If the respondent has been validly awarded proforma promotion from 1-6-1963 and no claim or argument has been raised on behalf of the appellant that the pro forma promotion is Invalid, and Govemment has undoubted power to date a permanent promotion retrospectively, as held by the Supreme Court in PLD 1962 SC 367. The respondent's name does not thus have to remain ln the common seniority list. It may be made here clear that the respondent 2 having been promoted and confirmed as Senior Superintendent his name has to be deleted from the common seniority list, which is intended for the purpose of promotion to the rank of Superintendent. His name should, therefore, be deleted from the common seniority list in view of the pro forma promotion of respondent with retrospective effect from 1963 i.e. before the Rules of 1964 were enforced. The question of seniority in the rank of Superintendent has not been raised or disputed ln the present case ; thus we do not have to determine their inter se seniority in that rank. The date of continuous appointment of respondent 2 as Superintendent is earlier than the date of promotion of the appellant to the rank of Superintendent. It cannot be ignored that in the rank of Superintendent not only the date of continuous appointment of respondent 2 is earlier than the date of continuous appointment of the appellant, but the respondent 2 stands confirmed from 1-3-1971. There does not therefore appear to be any need for upsetting the seniority of respondent 2 in the rank of Superintendent. For the reasons stated above, I declare the appellant senior to Mian Muhammad Farooq, respondent No. 2 in case his name is to remain in the common Seniority list, which does not appear to be necessary. But this shall not affect their inter se seniority in the rank of Superintendent. I would leave the parties to bear their own costs. Bashir Ahmad Khan (Member).--The contention of respon* dent No. 2 is that since he has been granted pro forma promotion w. e. f. 1-6-1963 therefore he need not appear in 1he combined seniority list of Stenographers/Assistants to be promoted under the West Pakistan Health Department Ministerial Establishment (Regional) Recruitment Rules, 1964. I have examined the original file on which the order of pro forma promotion was passed. The proposal was made on the ground that he was due for promotion as Superintendent w. e. f. 1-6-1963 had the officials from other Regions not been transferred to Lahore Region. It is also stated ln para. 108 of the file that no one junior from him was promoted as Superintendent earlier to him. It is also stated that some of his juniors were given pro forma promotion in Multan Region earlier to him. Pro forma promotion can only be legally granted under next below rule as laid under Note 4 to rule 4.13 of the Civil Services Rules (Punjab), Volume I, Part I. This was interpreted by this Tribunal in Case No. 163/84 pf 1970 (Muhammad Ashraf Khan v. Secretary, Communications & Works Department etc.). We held that the four conditions laid down in this rule of C. S. R. ought to be fulfilled before passing such an order, as these have the salutary effect of preventive hardship to seniors and ensured equitable working of the next below rule. In this case the date of pro forma promotion has been granted only because certain officials were transferred to Lahore Region, and the post of Superintendent was not available for promotion of this respondent. This is also a vague statement. Neither the names of the officials nor the dates on which they were transferred are mentioned in the note. However, a vacancy cannot be assumed to have occurred unless it actually falls vacant. It is almost Impossible to go on giving pro forma promotion on certain assumed factors, which actually never happened. This is against the basic principles of the Next Below Rule. The other argument mentioned in the file for the grant of pro forma promotion is that his juniors were given pro forma promotion in Multan Region earlier to him. The 1964 Rules made the regional cadre separate and distinct. There was no question of relative seniority of respondent 2 with certain persons in Multan Region. Persons in one Region can have no relative seniority with persons in another Region, as the cadres are separate. The circumstances under which they were given pro forma promotion in that Region are also not mentioned in the noting. Even the Director was not sure ln his orders about the position, as he stated in his final orders that the pro forma promotion may be given, if the Rules permit. Thus the competent authority did not apply its mind fully to the case, and it was contravention of the provisions of the C. S. R. The Impact of the orders on the seniority of the respondent was never considered. The Tribunal has already held that this is a condition precedent to consider the fact of pro forma promotion on the seniors of a junior person before the grant of pro forma promotion. The order was passed on 31-3-1972. By this tilme the competent authority was aware that a common seniority list of Assistants and Stenographers has to be prepared according to Note 1 to the Appendix of the Rules. On the basis of date of Continuous appointment the appellant would have been senior ln the combined list. While considering the case of pro forma promotion, it was the duty of the competent authority to consider the case of the appellant as well.
6. This was not done. To my mind, the pro forma promotion has been granted on absolutely inadequate grounds. If the pro forma promotion is accepted then his date of promotion will become earlier than the date of promulgation of the Rules and the provision of Note 1 in the Appendix cannot be attracted. The date of pro forma promotion affects directly the seniority of the appellant and this issue is to be decided by us. In the circumstances I hold that pro forma promotion of respondent 2 from 1-6-1963 was not validly granted. Provisions of the Note 1 to the Appendix of West Pakistan Health Department Ministerial Establishment (Regional) Recruitment Rules, 1964 apply to him. His promotion should be reconsidered along with the appellant on the basis that he is junior to the appellant in the combined seniority list. The case may be re-examined by the competent authority on merits and decision taken regarding the promotion of the appellant and respondent 2 as to when each one of them should be promoted ln accordance with the principle of the senlority-cum-merit. The respondent's seniority ln the higher rank as Superintendent will be determined after this decision has been taken by the competent authority. I decide this appeal accordingly. Ashfaq Ali Khan (Member).--I agree with the orders of the learned Chairman in respect of seniority in the combined seniority list of Stenographers/Assistants for the purpose of promotion to the rank of Superintendent. The seniority in the rank of Superintendent is not disputed in this case, ln view, however, of what my learned brother Khan Bashir Ahmad Khan has stated, I would like to add that promotion to the rank of S ipertntendent is not an automatic process based merely on seniority. Thus in theory the seniority of Superintendent can be different from the seniority of the Assistants/Stenographers etc.